Opinion
2013-08-15
In the Matter of Geoffrey T. HALL, Appellant–Respondent, v. David W. DUSSAULT et al., Respondents–Appellants, et al., Respondents. (Proceeding No. 1.) In the Matter of John Dellaratta et al., Appellants–Respondents, v. David W. Dussault et al., Respondents–Appellants, et al., Respondents. (Proceeding No. 2.)
M. Joe Landry, Schenectady, for appellant-respondent and appellants-respondents. Roemer, Wallens, Gold & Mineaux, LLP, Albany (Michael R. Cuevas of counsel), for respondents-appellants.
M. Joe Landry, Schenectady, for appellant-respondent and appellants-respondents. Roemer, Wallens, Gold & Mineaux, LLP, Albany (Michael R. Cuevas of counsel), for respondents-appellants.
Before: PETERS, P.J., McCARTHY, GARRY and EGAN JR., JJ.
PER CURIAM.
Cross appeals from an order of the Supreme Court (Reilly Jr., J.), entered August 5, 2013 in Schenectady County, which, among other things, granted petitioners' applications, in two proceedings pursuant to Election Law § 16–102, to declare invalid the designating petition naming respondents David W. Dussault and Michael T. Horan as Republican Party candidates for certain public offices in the Town of Niskayuna at the September 10, 2013 primary election.
The present proceedings were commenced in an effort to invalidate the designating petition of respondents David W. Dussault and Michael T. Horan (hereinafter collectively referred to as the candidates), who are seeking the Republican Party nominations for the offices of, respectively, Member of Niskayuna Town Council and Justice of the Town of Niskayuna. The candidates argued that Supreme Court lacked personal jurisdiction in both proceedings, and unsuccessfully moved to dismiss the petitions. Supreme Court thereafter invalidated the designating petition, but directed respondent Schenectady County Board of Elections to give Republican Party voters an opportunity to ballot at the upcoming primary election. Petitioners in both proceedings appeal, and the candidates cross-appeal.
Initially, the candidates were served in the manner directed by the orders to show cause, namely, express mail in proceeding No. 1 and residential delivery in proceeding No. 2. As those methodswere “reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory 14–day period for commencing a proceeding concerning the validity of a designating petition,” the candidates' motions to dismiss were properly denied (Matter of Elston v. Mahoney, 122 A.D.2d 969, 970, 506 N.Y.S.2d 117 [1986],appeal dismissed, lvs. denied68 N.Y.2d 765, 506 N.Y.S.2d 435, 497 N.E.2d 965 [1986];see Matter of Contessa v. McCarthy, 40 N.Y.2d 890, 891, 389 N.Y.S.2d 349, 357 N.E.2d 1004 [1976];Matter of Rue v. Hill, 287 A.D.2d 781, 782–783, 731 N.Y.S.2d 506 [2001],lv. denied97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287 [2001] ).
Turning to the merits, Supreme Court invalidated the designating petition due to errors committed by two subscribing witnesses, thus invalidating the signatures they had witnessed and causing the petition to lack the requisite number of signatures. Supreme Court further “order[ed] an opportunity to ballot, which is ‘designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office’ ” (Matter of Landry v. Mansion, 65 A.D.3d 803, 805, 884 N.Y.S.2d 795 [2009], quoting Matter of Harden v. Board of Elections in City of N.Y., 74 N.Y.2d 796, 797, 545 N.Y.S.2d 686, 544 N.E.2d 605 [1989];see Matter of Bowen v. Ulster County Bd. of Elections, 21 A.D.3d 693, 694–695, 800 N.Y.S.2d 245 [2005],lv. denied5 N.Y.3d 706, 801 N.Y.S.2d 799, 835 N.E.2d 659 [2005] ).
The record establishes that one of the subscribing witnesses, a commissioner of deeds, failed to inform any of “the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed” (Matter of Nolin v. McNally, 87 A.D.3d 804, 806, 928 N.Y.S.2d 615 [2011];seeElection Law § 6–132[3]; Matter of Caruso v. Casciola, 27 N.Y.2d 657, 658, 313 N.Y.S.2d 871, 261 N.E.2d 907 [1970];Matter of Helfand v. Meisser, 22 N.Y.2d 762, 762–763, 292 N.Y.S.2d 467, 239 N.E.2d 387 [1968] ). While the signatures collected by him were rendered invalid as a result, under the circumstances presented here his failure constituted nothing more than a “technical irregularity” (Matter of Caruso v. Casciola, 27 N.Y.2d at 658, 313 N.Y.S.2d 871, 261 N.E.2d 907;see Matter of Nolin v. McNally, 87 A.D.3d at 805–806, 928 N.Y.S.2d 615;Matter of Bonner v. Negron, 87 A.D.3d 737, 739–740, 929 N.Y.S.2d 170 [2011] ).
The second subscribing witness, Horan, mistakenly executed the statement intended for a notary public or commissioner of deeds rather than that meant for party members. While Horan is in fact a notary public, he did not identify himself as such in the witness statement ( seeElection Law § 6–132[3]; Matter of Fuentes v. Lopez, 264 A.D.2d 490, 490, 694 N.Y.S.2d 166 [1999] ). The signatures that Horan witnessed were rendered invalid as a result, but his failure to indicate his position was a technical defect that did “not call into serious question the existence of adequate support among eligible voters” (Matter of Harden v. Board of Elections in City of N.Y., 74 N.Y.2d at 797, 545 N.Y.S.2d 686, 544 N.E.2d 605;compare Matter of Maresca v. Albanese, 153 A.D.2d 719, 720, 544 N.Y.S.2d 685 [1989],lv. denied74 N.Y.2d 609, 545 N.Y.S.2d 692, 544 N.E.2d 611 [1989] ). Absent any indication that fraud was involved or that the voters who signed the invalid pages were not entitled to sign the petition, Supreme Court properly directed an opportunity to ballot for the offices of Member of Niskayuna Town Council and Justice of the Town of Niskayuna ( see Matter of Landry v. Mansion, 65 A.D.3d at 805–806, 884 N.Y.S.2d 795;compare Matter of Bowen v. Ulster County Bd. of Elections, 21 A.D.3d at 695, 800 N.Y.S.2d 245). We do note, however, that the opportunity to ballot should be used to select only one candidate for the office of Member of Niskayuna Town Council-despite the fact that two seats on the council are open-as the invalidated petition manifested an intent to nominate only one candidate ( see Matter of Hunting v. Power, 20 N.Y.2d 680, 681, 282 N.Y.S.2d 548, 229 N.E.2d 227 [1967];Matter of Hochberg v. D'Apice, 112 A.D.2d 1067, 1068, 493 N.Y.S.2d 47 [1985],affd. for reasons stated below65 N.Y.2d 960, 494 N.Y.S.2d 107, 484 N.E.2d 136 [1985] ). As such, the order will be modified accordingly. The remaining arguments of the parties, to the extent they are properly before us, have been considered and rejected.
ORDERED that the order is modified, on the facts, without costs, by directing that respondent Schenectady County Board of Elections provide registered voters of the Republican Party with an opportunity to ballot for only one candidate for the office of Member of Niskayuna Town Council at the September 10, 2013 primary election, and, as so modified, affirmed.