Opinion
970 CAE 19–01765
10-04-2019
In the Matter of John L. DEMARCO, Petitioner–Appellant, v. MONROE COUNTY BOARD OF ELECTIONS, Colleen Anderson and Douglas French, as Commissioners Constituting the Board, Karen Bailey Turner, as Candidate for Office of Monroe County Court, Michael L. Dollinger, as Candidate for Office of Monroe County Court and Kyle R. Steinebach, as Candidate for Office of Monroe County Court, Respondents–Respondents.
COUCH WHITE, LLP, ALBANY (JAMES WALSH OF COUNSEL), FOR PETITIONER–APPELLANT. MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR RESPONDENTS–RESPONDENTS MONROE COUNTY BOARD OF ELECTIONS, COLLEEN ANDERSON AND DOUGLAS FRENCH, AS COMMISSIONERS CONSTITUTING THE BOARD. SANTIAGO BURGER LLP, PITTSFORD (MICHAEL A. BURGER OF COUNSEL), FOR RESPONDENT–RESPONDENT KYLE R. STEINEBACH, AS CANDIDATE FOR OFFICE OF MONROE COUNTY COURT. MICHAEL T. ANSALDI, ROCHESTER, FOR RESPONDENT–RESPONDENT MICHAEL L. DOLLINGER, AS CANDIDATE FOR OFFICE OF MONROE COUNTY COURT.
COUCH WHITE, LLP, ALBANY (JAMES WALSH OF COUNSEL), FOR PETITIONER–APPELLANT.
MICHAEL E. DAVIS, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF COUNSEL), FOR RESPONDENTS–RESPONDENTS MONROE COUNTY BOARD OF ELECTIONS, COLLEEN ANDERSON AND DOUGLAS FRENCH, AS COMMISSIONERS CONSTITUTING THE BOARD.
SANTIAGO BURGER LLP, PITTSFORD (MICHAEL A. BURGER OF COUNSEL), FOR RESPONDENT–RESPONDENT KYLE R. STEINEBACH, AS CANDIDATE FOR OFFICE OF MONROE COUNTY COURT.
MICHAEL T. ANSALDI, ROCHESTER, FOR RESPONDENT–RESPONDENT MICHAEL L. DOLLINGER, AS CANDIDATE FOR OFFICE OF MONROE COUNTY COURT.
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Election Law article 16 and CPLR article 78 seeking, inter alia, to invalidate the ballot with a three-column design that was proposed by respondent Monroe County Board of Elections (Board) for the office of Monroe County Court in the November 5, 2019 general election and to compel the adoption of a ballot with a two-column design. Contrary to petitioner's contention, we conclude that Supreme Court properly dismissed the petition because petitioner did not file a verified petition at the time of commencement as required by Election Law § 16–116. "The Election Law requirement of a verified petition is a jurisdictional condition precedent to commencing a proceeding" ( Matter of Callahan v. Russo, 123 A.D.2d 518, 518, 507 N.Y.S.2d 89 [4th Dept. 1986] ; see Matter of Goodman v. Hayduk, 64 A.D.2d 937, 938, 408 N.Y.S.2d 138 [2d Dept. 1978], affd 45 N.Y.2d 804, 409 N.Y.S.2d 7, 381 N.E.2d 165 [1978] ; Matter of O'Connell v. Ryan, 112 A.D.2d 1100, 1100, 493 N.Y.S.2d 230 [3d Dept. 1985], lv denied 65 N.Y.2d 607, 494 N.Y.S.2d 1031, 484 N.E.2d 139 [1985] ). Thus, although petitioner filed the verification the following day, that subsequent filing was insufficient to cure the jurisdictional defect (see Goodman, 64 A.D.2d at 938, 408 N.Y.S.2d 138 ; O'Connell, 112 A.D.2d at 1100, 493 N.Y.S.2d 230 ; see also Matter of Haberstro v. Scholl [Appeal No. 1], 213 A.D.2d 1082, 1082, 625 N.Y.S.2d 969 [4th Dept. 1995] ). Contrary to the further contention of petitioner, respondents did not waive their objection to the defective pleading inasmuch as they "[gave] notice with due diligence to [petitioner's] attorney" of their objection ( CPLR 3022 ).