Opinion
November 4, 1983
Appeal from the Monroe Supreme Court, Cicoria, J.
Present — Hancock, Jr., J.P., Doerr, Boomer, Moule and Schnepp, JJ. (Order entered Oct. 18, 1983.)
Order unanimously affirmed, without costs. Memorandum: Subdivision 3 of section 6-138 Elec. of the Election Law requires that the party name selected by an independent body making a nomination shall not include the name or part of the name of that stated on a previously filed independent nominating petition. It also prohibits the use of any name which would "create the possibility of confusion". The manifest purpose of this statute is "`to prevent all possibility of confusion in the minds of voters in connection with the election machinery.'" ( Matter of Ottinger v Lomenzo, 35 A.D.2d 747, affd 27 N.Y.2d 754; Matter of McCarthy v Lawley, 35 A.D.2d 126, affd 27 N.Y.2d 754.) The party name selected by respondents is "Independence of Henrietta". A previously filed independent nominating petition bears the name "Henrietta Party". Therefore, respondents' party name selection is a violation of the express prohibition against the inclusion of part of the name of a previously filed independent nominating petition. The similarity of these party names is also very likely to result in visual confusion, "particularly where one in a voting booth makes a rapid choice of party and candidate." ( Matter of McCarthy v Lawley, supra, p 129.) This resulting confusion is violative of the avowed intent of subdivision 3 of section 6-138 Elec. of the Election Law. Under the circumstances presented here, there is no statutory authority to permit respondents to substitute another name ( Matter of McCarthy v Lawley, 35 A.D.2d 126, 129, supra; Matter of Donnellon v Heffernan, 193 Misc. 97, 98, affd 274 App. Div. 880, affd 298 N.Y. 656).