Matter of Johnson v Ciarpelli

Matter of Estate of Johnson v Ciarpelli 2010 NY Slip Op 02293 [71 AD3d 1482] March 19, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

In the Matter of the Estate of Ray C. Johnson, Deceased, Appellant, v M. Ann Ciarpelli, as Onondaga County Clerk, et al., Respondents.

—[*1] Dirk J. Oudemool, Syracuse, for petitioner-appellant.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent-respondent M. Ann Ciarpelli, as Onondaga County Clerk.

The Mathews Law Firm, Syracuse (Daniel F. Mathews, III, of counsel), for respondent-respondent Robert Yager.

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered November 7, 2008 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking a judgment determining that respondent M. Ann Ciarpelli, as Onondaga County Clerk (County Clerk), acted without authority in accepting for filing a summons and complaint presented for that purpose by respondent Robert Yager and in assigning an index number to the action commenced by Yager by service of the summons and complaint pursuant to CPLR former 304 in 1988. We conclude that Supreme Court properly dismissed the petition. Pursuant to CPLR 2102 (c), "[a] clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court." Petitioner cites no such statute, rule or order directing the County Clerk to refuse to accept for filing the pleadings presented by Yager. Further, CPLR 306-a (a) provides that, upon filing the summons and complaint, "an index number shall be assigned" and the filing fee shall be paid. Thus, the County Clerk also acted within her authority in assigning an index number to the action. Present—Centra, J.P., Peradotto, Lindley, Green and Gorski, JJ.