Matter of Ray v County of Suffolk

Matter of Ray v County of Suffolk 2022 NY Slip Op 02417 Decided on April 13, 2022 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 13, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
ANGELA G. IANNACCI
PAUL WOOTEN
JOSEPH A. ZAYAS, JJ.
2019-04285
(Index No. 6116/17)

[*1]In the Matter of John Ray, appellant,

v

County of Suffolk, et al., respondents.

John Ray, Miller Place, NY, appellant pro se.

Mark A. Cuthbertson, Huntington, NY (Matthew DeLuca of counsel), for respondents County of Suffolk and Steve Bellone.

Anton J. Borovina, Melville, NY, for respondent John M. Kennedy.

O'Brien & O'Brien, LLP, Nesconset, NY (Stephen L. O'Brien of counsel), for respondents Robert Biancavilla, Christopher McPartland, John Scott Prudenti, Edward Heilig, and Emily Constant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents to effectuate the return of certain monies to accounts designated for civil forfeiture funds, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 22, 2019. The order and judgment granted the respondents' separate motions to dismiss the petition, denied the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

As the respondents County of Suffolk and Steve Bellone correctly note, the petitioner's sole argument on appeal was not advanced before the Supreme Court in opposition to the respondents' separate motions to dismiss the petition. Since this argument does not present a pure question of law appearing on the face of the record that could not have been avoided if raised at the proper juncture, it is improperly raised for the first time on appeal and is not properly before this Court (see Mozzachio v Schanzer, 188 AD3d 873, 875; Lewis v Holliman, 176 AD3d 1048, 1049).

Inasmuch as the petitioner has raised no other argument on this appeal, we affirm the order and judgment.

The respondents' remaining contentions are academic in light of our determination.

BRATHWAITE NELSON, J.P., IANNACCI, WOOTEN and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court