Opinion
2015-10-26
In the Matter of Michael T. McCORMACK, et al., respondents-appellants, v. Diane JABLONSKI, et al., respondents, Marco Caviglia, etc., et al., appellants-respondents.
, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a certificate of nomination naming Diane Jablonski, Mary Hannon Williams, Rita Langva, Thomas Michael Hurley, April Marie Farley, Craig Brendli, Debra Winifred Blalock, David P. Ray, Emily Svenson, Joseph R. Marrine, Joseph Paul Petito, Elizabeth Spinzia, James Tracy Herrmann, and Linda S. French as candidates of the Women's Equality Party for certain public offices in a general election to be held on November 3, 2015, the Women's Equality Party, Rachel Gold, and Kathleen Joy appeal, as limited by their brief, from so much of a final order of the Supreme Court, Dutchess County (Forman, J.), dated September 29, 2015, as granted the petition to invalidate the certificate of nomination, and Marco Caviglia, in his capacity as a Commissioner of the Dutchess County Board of Elections, separately appeals, as limited by his brief, from so much of the same final order as, in effect, denied that branch of his motion which was to dismiss the petition, made on the ground that the petitioner Michael T. McCormack lacked standing to commence this proceeding. The petitioners cross-appeal, as limited by their brief, from so much of the same final order as declined to reach all of the arguments that they raised in support of the petition.
ORDERED that the cross appeal is dismissed, without costs or disbursements, as the petitioners are not aggrieved by the final order ( seeCPLR 5511; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241); and it is further,
ORDERED that the final order is affirmed insofar as appealed from, without costs or disbursements.
At the outset, there is no merit to the contention of Marco Caviglia, a Commissioner of the Dutchess County Board of Elections, that the petitioner Michael T. McCormack, the Chairman of the Dutchess County Republican Party Committee, lacked standing to challenge the nomination of certain candidates for City and Town offices in Dutchess County ( seeElection Law § 16–102). Accordingly, the Supreme Court properly denied that branch of Caviglia's motion which was to dismiss the petition, made on the ground that McCormack lacked standing to commence this proceeding.
The Supreme Court properly, inter alia, granted the petition to invalidate the certificate of nomination naming Diane Jablonski, Mary Hannon Williams, Rita Langva, Thomas Michael Hurley, April Marie Farley, Craig Brendli, Debra Winifred Blalock, David P. Ray, Emily Svenson, Joseph R. Marrine, Joseph Paul Petito, Elizabeth Spinzia, James Tracy Herrmann, and Linda S. French as candidates of the Women's Equality Party for certain public offices in a general election to be held on November 3, 2015. As the court correctly found, the certificate of nomination does not “contain ... [a]n affidavit containing a statement by the presiding officer and secretary of the committee that they are such officers and the statements in the certificate are true,” as required by Election Law § 6–128(1)(g). While the challenged certificate of nomination contains the notarized signatures of Rachel Gold, as “Presiding Officer of Nominating Meeting and Acting Chair of the WEP,” and Kathleen Joy, as “Secretary of Nominating Meeting and the WEP,” it does not contain a statement by either Gold or Joy attesting to the truth of the statements in the certificate. The omission of such a statement constitutes a substantive departure from the mandates of the statute and not a mere error in form ( see Matter of Alamo v. Black, 51 N.Y.2d 716, 717, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of Dadey v. Czarny, 132 A.D.3d 1427, 18 N.Y.S.3d 496, 2015 N.Y. Slip Op. 07573 [4th Dept.2015]; Matter of McGuire v. Gamache, 22 A.D.3d 614, 615, 804 N.Y.S.2d 333, affd. 5 N.Y.3d 444, 806 N.Y.S.2d 138, 840 N.E.2d 107; see also Matter of Griffin v. Torres, 131 A.D.3d 631, 632, 15 N.Y.S.3d 435). Because strict, and not just substantial, compliance is required “with statutory commands as to matters of prescribed content” ( Matter of Hutson v. Bass, 54 N.Y.2d 772, 774, 443 N.Y.S.2d 57, 426 N.E.2d 749; see Matter of Boniello v. Niagara County Bd. of Elections, 131 A.D.3d 806, 807, 15 N.Y.S.3d 530), the certificate of nomination is invalid ( see Matter of Dadey v. Czarny, 132 A.D.3d 1427, 18 N.Y.S.3d 496, 2015 N.Y. Slip Op. 07573; Matter of Grasso v. Cleveland, 132 A.D.3d 1059, 17 N.Y.S.3d 794 [3d Dept.2015]; Matter of Rustin v. Bugbee, 49 Misc.3d 1204[A], 2015 N.Y. Slip Op. 51423[U], 2015 WL 5751951 [Sup.Ct., Rensselaer County] ).
The petitioners' contention raised as an alternative ground for affirmance need not be reached in light of our determination on the appeals to affirm the final order ( see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d at 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241).
The petitioners' remaining contention has not been properly raised before this Court.