Baird v. Ness
| Decision Date | 18 March 1985 |
| Citation | 492 N.Y.S.2d 473,109 A.D.2d 975 |
| Parties | In the Matter of Bruce R. BAIRD, Respondent, v. Ralph B. NESS, Appellant, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the Supreme Court at Special Term (Bryant, J.), entered March 12, 1985 in Tompkins County, which granted petitioner's application, in a proceeding pursuant to the Election Law, to declare invalid the independent nominations of respondents Thomas Smith and Robert Scott for the office of Trustee of the Village of Trumansburg in the March 19, 1985 general election.
Respondents Thomas Smith and Robert Scott timely filed independent nominating petitions on or before February 26, 1985, the last day for filing those petitions (see, Election Law § 15-108). They did not, however, file their certificates of acceptance on or before March 1, 1985, the last day on which they could be filed (see, Election Law § 15-108). Instead, the candidates filed their certificates of acceptance on March 4, 1985. Petitioner commenced this proceeding on March 8, 1985 for an order directing that the names of the candidates be removed from the ballot due to the late filing of their certificates of acceptance. Special Term granted the petition and this appeal ensued.
Despite the fact that the certificates of acceptance filed by the candidates were untimely and that this defect, if properly raised for judicial review, would be deemed fatal (see, Election Law § 1-106), there must be a reversal. Persons seeking to judicially challenge an independent nomination for public office must do so by means of a proceeding pursuant to the Election Law (Election Law § 16-102). The only time limitation contained therein which could apply to a challenge to an untimely filed certificate of acceptance is the 7-day provision of Election Law § 16-102(2), which runs from the "last day to file the petition for such village election or independent nomination". Therefore, since this proceeding was not commenced on or before March 5, 1985 (7 days after the Feb 26 deadline for filing petitions), it must be dismissed as untimely.
In so holding, we reject petitioner's argument that the 7-day limitation of Election Law § 16-102(2) is inapplicable to this proceeding since it is not a "proceeding with respect to a petition", but, rather, a proceeding with respect to a nomination. We refrain from embracing this logic, since to do so would result in a situation in...
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Scaringe v. Ackerman
...6 must be brought under Election Law § 16-102(1) and is subject to the time restrictions of § 16-102(2) (see, e.g., Matter of Baird v. Ness, 109 A.D.2d 975, 492 N.Y.S.2d 473). Accordingly, we conclude that a proceeding to remove a candidate from the ballot, based upon allegations that the c......
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Bruno v. Rettaliata
...In our view, Special Term properly dismissed the proceeding as untimely (Election Law § 16-102[2]; see also, Matter of Baird v. Ness, 109 A.D.2d 975, 976, 492 N.Y.S.2d 473). Were we to reach the merits of the proceeding, the same result would obtain. Martin's failure to file his certificate......