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IN THE MATTER OF MICHAEL A. KOPLEN, petitioner-respondent, v. TIMOTHY A. AUSTIN, ET AL., respondents, CAROL VASQUEZ, ETC., ET AL., appellants, ROCKLAND COUNTY BOARD OF ELECTIONS, ET AL., respondents-respondents.

DECISION ORDER

ORDERED that the final order is affirmed insofar as appealed from, without costs or disbursements.

Pursuant to CPLR 402, the pleadings in a special proceeding are limited to a petition, an answer, and a reply to any counterclaim asserted. "The court may permit such other pleadings as are authorized in an action upon such terms as it may specify" (CPLR 402). "[A] cross claim is not permitted in a special proceeding without leave of court" ( Matter of O'Connor v. D'Apice, 156 A.D.2d 610, 612; see Matter of Williams v. Rensselaer County Bd. of Elections, 98 A.D.2d 938). The appellants did not seek leave to serve a cross claim, and thus the cross claim was not properly before the Supreme Court ( see Matter of Zenosky v. Graziani, 288 A.D.2d 843; Matter of O'Connor v. D'Apice, supra; Matter of Williams v. Rensselaer County Bd. of Elections, supra).

In light of the foregoing, we do not reach the appellants' remaining contentions.

ALTMAN, J.P., FLORIO, LUCIANO and MASTRO, JJ., concur.

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IN THE MATTER OF KOPLEN v. AUSTIN
(Mar 11, 2004)