Opinion
739 CAE 19–01003
05-30-2019
In the Matter of Antionette T. CRAIG, Petitioner–Appellant, v. Edelina BORRERO, Erie County Board of Elections, Respondents–Respondents, et al., Respondent.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR PETITIONER–APPELLANT. VANDETTE PENBERTHY, LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR RESPONDENT–RESPONDENT EDELINA BORRERO. MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT ERIE COUNTY BOARD OF ELECTIONS.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR PETITIONER–APPELLANT.
VANDETTE PENBERTHY, LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR RESPONDENT–RESPONDENT EDELINA BORRERO.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT ERIE COUNTY BOARD OF ELECTIONS.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Election Law § 16–102 seeking an order validating her designating petition to be placed on the primary election ballot for the Democratic Party as a candidate for the City of Buffalo Common Council. Supreme Court dismissed the petition, and petitioner appeals. Petitioner contends that her designating petition substantially complied with Election Law § 6–132(2) and that, in determining that the "statement of witness" portion of her designating petition did not substantially comply with the requirements of section 6–132(2), respondent Erie County Board of Elections (Board) exceeded its ministerial authority (see generally Schwartz v. Heffernan, 304 N.Y. 474, 480, 109 N.E.2d 68 [1952] ). We reject those contentions. The designating petition did not substantially comply with section 6–132(2) because it failed to include, among other things, any language in the witness statements identifying the party affiliation of the witnesses (see Matter of Bailey v. Power, 12 Misc.2d 105, 106, 178 N.Y.S.2d 966 [Sup. Ct., Queens County 1958], affd 6 A.D.2d 996, 177 N.Y.S.2d 898 [2d Dept. 1958] ; see generally Matter of Hochhauser v. Grinblat, 307 A.D.2d 1007, 1008, 763 N.Y.S.2d 508 [2d Dept. 2003] ). Moreover, that defect " ‘appear[s] on the face of the [designating] petition’ and, as such, concerns a ministerial objection within the power of [the Board] to review" ( Matter of Scavo v. Albany County Bd. of Elections, 131 A.D.3d 796, 797, 16 N.Y.S.3d 622 [3d Dept. 2015], lv denied 25 N.Y.3d 914, 2015 WL 5010164 [2015] ).
We have reviewed petitioner's remaining contention and conclude that it is without merit.