Opinion
856 CAE 18–01484
08-22-2018
In the Matter of Barbara E. DUCK, Timothy C. Mitchell, and Robert E. Antonacci II, Petitioners–Appellants, v. John W. MANNION, Candidate for New York State Senate, Respondent–Respondent, et al., Respondents.
SINNREICH, KOSAKOFF & MESSINA, LLP, CENTRAL ISLIP (JOHN CIAMPOLI OF COUNSEL), FOR PETITIONERS–APPELLANTS. JAMES E. LONG, ALBANY, FOR RESPONDENT–RESPONDENT.
SINNREICH, KOSAKOFF & MESSINA, LLP, CENTRAL ISLIP (JOHN CIAMPOLI OF COUNSEL), FOR PETITIONERS–APPELLANTS.
JAMES E. LONG, ALBANY, FOR RESPONDENT–RESPONDENT.
PRESENT: PERADOTTO, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners Barbara E. Duck and Timothy C. Mitchell (petitioners-objectors) and petitioner Robert E. Antonacci II (petitioner-candidate) commenced this proceeding pursuant to Election Law § 16–102 seeking an order invalidating designating petitions pursuant to which John W. Mannion (respondent) sought to be placed on the primary election ballots for the Democratic Party, Working Families Party, Women's Equality Party, and Reform Party as a candidate for the office of New York State Senate, 50th Senatorial District. Supreme Court granted the petition in part, invalidated the Reform Party designating petition, and denied the petition with respect to the other designating petitions. We affirm.
At the outset, we note that, although the notice of appeal indicates that petitioners are the appellants, the cover of the appellate brief, the CPLR 5531 statement, and the CPLR 5532 stipulation all indicate that they were submitted on behalf of petitioners-objectors only. Nonetheless, accepting the representations made to this Court at oral argument that the failure to identify petitioner-candidate as an appellant in those papers constitutes a mere mistake or omission and, in the absence of prejudice to a substantial right of a party, we disregard the mistake or omission and treat the appeal as perfected by petitioners-objectors and petitioner-candidate (see CPLR 2001 ; see generally Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 606, 775 N.Y.S.2d 753, 807 N.E.2d 864 [2004] ; Matter of Niagara Mohawk Power Corp. v. Town of Moreau Assessor, 46 A.D.3d 1147, 1148 n. 2, 847 N.Y.S.2d 756 [3d Dept. 2007], lv denied 10 N.Y.3d 708, 859 N.Y.S.2d 393, 889 N.E.2d 80 [2008] ).
We conclude that petitioners-objectors lack standing to challenge the petitions designating respondent as a candidate in the primary elections of the Democratic Party, Working Families Party, or Women's Equality Party. A person may commence judicial proceedings to challenge a designating petition provided that he or she "shall have filed objections, as provided in [the Election Law]" ( Election Law § 16–102[1] ). Here, petitioners-objectors filed objections with respect to the petition designating respondent as a candidate in the primary election of the Reform Party but they did not file objections with respect to the other designating petitions, and they therefore lack standing to challenge the other designating petitions (see Matter of Naples v. Swiatek, 286 A.D.2d 567, 567, 730 N.Y.S.2d 589 [4th Dept. 2001], lv denied 96 N.Y.2d 718, 732 N.Y.S.2d 630, 758 N.E.2d 656 [2001] ; see generally Matter of Niagara Preserv. Coalition, Inc. v. New York Power Auth., 121 A.D.3d 1507, 1508–1509, 994 N.Y.S.2d 487 [4th Dept. 2014], lv denied 25 N.Y.3d 902, 2015 WL 1471786 [2015] ; Uhlfelder v. Weinshall, 47 A.D.3d 169, 182–183, 845 N.Y.S.2d 41 [1st Dept. 2007] ). Moreover, even assuming, arguendo, that the objections filed by petitioners-objectors were addressed to the other designating petitions, we conclude that the court lacked jurisdiction to adjudicate such challenges inasmuch as petitioners-objectors failed to timely file their specifications of the grounds of the objections (see Election Law § 6–154[2] ), and "the failure to file specifications within six days after the filing of general objections is jurisdictionally fatal" ( Matter of Bush v. Salerno, 51 N.Y.2d 95, 98, 432 N.Y.S.2d 679, 412 N.E.2d 366 [1980] ).
We further conclude that the court properly denied that part of the petition in which petitioner-candidate challenged the other designating petitions inasmuch as petitioner-candidate failed to establish by clear and convincing evidence that those designating petitions are permeated with fraud or that respondent participated in or is chargeable with knowledge of the fraud (see Matter of Rodriguez v. Harris, 51 N.Y.2d 737, 738, 432 N.Y.S.2d 358, 411 N.E.2d 777 [1980] ; Matter of Perez v. Galarza, 21 A.D.3d 508, 508–509, 800 N.Y.S.2d 574 [2d Dept. 2005], lv denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 [2005] ; Matter of Payne v. Fleming, 286 A.D.2d 565, 566, 730 N.Y.S.2d 466 [4th Dept. 2001] ; Matter of Reese v. Pokorski, 242 A.D.2d 858, 858, 662 N.Y.S.2d 334 [4th Dept. 1997] ).