Opinion
Argued February 25, 2008.
Decided February 25, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered February 22, 2008. The Appellate Division, with two Justices dissenting, insofar as appealed from, affirmed an order of the Supreme Court, Albany County (Eugene P. Devine, J.), which had granted petitioners' applications, in two proceedings pursuant to Election Law § 16-102, to declare invalid the certificates of nomination and authorizations naming Will Barclay and Darrel Aubertine as the Independence Party candidate for the public office of State Senator for the 48th District in the February 26, 2008 special election.
Matter of Fehrman v New York State Bd. of Elections, ___ AD3d ___, 2008 NY Slip Op 01610, reversed.
Matter of Aubertine v Oswego County Independence Interim County Org., ___ AD3d ___, 2008 NY Slip Op 01610, reversed.
A. Joshua Ehrlich, Albany, for New York State Committee of the Independence Party of New York and others, appellants.
John Ciampoli, Albany, for Will Barclay, appellant.
Martin E. Connor, Brooklyn, for Darrel Aubertine, respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, the proceeding to invalidate the nomination of Will Barclay dismissed and the injunction preventing the State Board and County Boards of Elections from placing Barclay's name on the ballot vacated.
On the facts of this case, Darrel Aubertine, a nonmember of the Independence Party, lacked standing to challenge that party's compliance with its own rules ( see Matter of Nicolai v Kelleher, 45 AD3d 960 [3d Dept 2007]; Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647 [3d Dept 1983], affd 60 NY2d 801). Although, at a point before the first of these proceedings began, Aubertine had a bona fide claim to be the Independence Party's candidate for State Senator, events that preceded the start of the litigation eliminated any basis for such a claim. While Aubertine asserted in pleadings below that he was the Independence Party candidate, he promptly abandoned that assertion; he argued below and argues here that the Independence Party has not validly nominated any candidate. Under these circumstances, Aubertine is not an "aggrieved candidate" within the meaning of Election Law § 16-102.
Order, insofar as appealed from, reversed, etc.