In re Matter of Meehan v. Giunta, 2010 NY Slip Op 31390(U) (N.Y. Sup. Ct. 6/1/2010), 009648/10.

• Decision Date: 01 June 2010
• Docket Number: No. 009648/10.,009648/10.
• Citation: 2010 NY Slip Op 31390
• Parties: In the Matter of the Application of MICHAEL T. MEEHAN and PATRICK B. GIBSON, as aggrieved candidates Petitioners, v. GIOVANNA GIUNTA, as the Manorhaven Revival Party Candidate for the Office of Mayor of the Incorporated Village of Manorhaven, Respondent-Candidate, and DORIT ZEEVI-FARRINGTON and MARK LAZAROVIC, as the Manorhaven Revival Party Candidates for the office of Trustee of the Incorporate Village of Manorhaven, Respondent-Candidates, and THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU and JOHN A. DeGRACE and WILLIAM BIAMONTE, as the Commissioners of The Board of Elections of the County of Nassau, Respondents, and JONATHAN P. FIELDING, Village Clerk for the Incorporated Village of Manorhaven, Respondent, For an Order pursuant to Election Law § 16-100, § 16-102, § 6-146 and § 1-106 (2) declaring the nominations of the Respondents GIOVANNA GIUNTA, DORIT ZEEVI-FARRINGTON and MARK LAZAROVIC null and void.
• Court: New York Supreme Court

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2010 NY Slip Op 31390(U)

In the Matter of the Application of MICHAEL T. MEEHAN and PATRICK B. GIBSON, as aggrieved candidates Petitioners, v. GIOVANNA GIUNTA, as the Manorhaven Revival Party Candidate for the Office of Mayor of the Incorporated Village of Manorhaven, Respondent-Candidate, and DORIT ZEEVI-FARRINGTON and MARK LAZAROVIC, as the Manorhaven Revival Party Candidates for the office of Trustee of the Incorporate Village of Manorhaven, Respondent-Candidates, and THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU and JOHN A. DeGRACE and WILLIAM BIAMONTE, as the Commissioners of The Board of Elections of the County of Nassau, Respondents, and JONATHAN P. FIELDING, Village Clerk for the Incorporated Village of Manorhaven, Respondent For an Order pursuant to Election Law § 16-100, § 16-102, § 6-146 and § 1-106 (2) declaring the nominations of the Respondents GIOVANNA GIUNTA, DORIT ZEEVI-FARRINGTON and MARK LAZAROVIC null and void.

No. 009648/10.

Supreme Court, Nassau County.

June 1, 2010.

RANDY SUE MARBER, Judge.

This proceeding was commenced (1) to declare as null and void the nomination of the Respondent, GIOVANNA GIUNTA ("GIUNTA") as the Manorhaven Revival Party candidate for the office of Mayor of the Incorporated Village of Manorhaven in the election to be held on June 15, 2010; (2) to declare as null and void the nomination of the Respondent, DORIT ZEEVI-FARRINGTON ("ZEEVI-FARRINGTON") as the Manorhaven Revival Party candidate for the office of Trustee of the Incorporated Village of Manorhaven in the election to be held on June 15, 2010; and (3) to declare as null and void the nomination of the Respondent, MARK LAZAROVIC ("LAZAROVIC") as the Manorhaven Revival Party candidate for the office of Trustee of the Incorporated Village of Manorhaven in the election to be held on June 15, 2010.

The Petitioners allege that the Respondents, GIUNTA, ZEEVI-FARRINGTON and LAZAROVIC failed to comply with the requirements of Election Law § 6-146 (1) in that they failed to have their signatures on their acceptance certificates acknowledged.

The Respondents GIUNTA, ZEEVI-FARRINGTON and LAZAROVIC oppose the Petition alleging that the Petition was not properly served; that the Petitioners did not have standing to commence the instant proceeding; and that the Respondents' certificates of acceptance were not required to be acknowledged.

The Respondents, THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU and JOHN A. DeGRACE and WILLIAM BIAMONTE, as the Commissioners of The Board of Elections of the County of Nassau and JONATHAN P. FIELDING, Village Clerk for the Incorporated Village of Manorhaven, take no position with regard to the instant Petition.

Service:

The Respondents, GIUNTA, ZEEVI-FARRINGTON and LAZAROVIC allege that the Order to Show Cause, signed by this Court on May 18, 2010, required the Petitioners to effectuate service upon the Respondent, Nassau County Board of Elections, by personal delivery to the Office of the Nassau County Attorney, at One "Wall" Street, Mineola, New York. The Respondents argue that service upon the Nassau County Attorney at One "West" Street was improper. The Order to Show Cause contained a typographic error listing the address for the Nassau County Attorney as One "Wall" Street instead of the correct street name "West" Street. In fact, there is no "Wall" Street with in the Village of Mineola, State of New York. This error appears to be ministerial in nature. Further, service was properly effectuated at the County Attorney's Office at the correct address, "One West Street, Mineola, New York". Said Respondents appeared and did not object to the service. As the error was insignificant and did not affect the proper service of the Order to Show Cause, the Court deems that service upon the Nassau County Attorney was proper.

Standing:

The Respondents, GIUNTA, ZEEVI-FARRINGTON and LAZAROVIC also seek the dismissal of the Petition on the grounds that the Petitioners lack standing to challenge the certificates of acceptance alleging that the Petitioners failed to timely file objections to the certificates of acceptance with the Village Clerk.

The Respondents, GIUNTA, ZEEVI-FARRTNGTON and LAZAROVIC argue that, pursuant to Election Law § 16-102, "Candidates Aggrieved" may institute proceedings against a Village Independent Nominating Petition, but not against a "Certificate of Acceptance." In so arguing, they contend that the only means by which the Petitioners may commence proceedings to challenge a certificate of acceptance is pursuant to Election Law § 6-154(2). Pursuant to Election Law § 6-154(2), the Respondents aver that the Petitioners were required to fulfill a condition precedent to commencing these proceedings, to wit, filing written objections to the certificates of acceptance with the Village Clerk. It is undisputed that the Petition objecting to the form/content of the certificates of acceptance was timely filed by way of Order to Show Cause with this Court. It is also not disputed that the Petitioners, MICHAEL T. MEEHAN and PATRICK B. GIBSON are candidates in the Manorhaven Village General Election. The only issue to be decided herein is whether the Petitioners lack standing to bring this petition as a result of their failure to file objections and specifications prior to commencing this proceeding.

It is well settled that "Candidates Aggrieved" are not required to file written objections prior to commencing proceedings to challenge the nomination of another candidate. Burns v. Willtse, 303 N.Y. 319 (1951); McDonald v. Heffernan, 196 Misc 465 (Kings County 1949), affd. 275 A.D. 1054(2^ndDept. 1949), 300 N.Y. 488 (1949); Trosk v. Cohen, 149 Misc. 298 (NY County 1933), affd. 240 A.D. 825 (1^st Dept. 1933), affd, 262 N.Y. 430 (1933); see also, Magee v. Camp, 253 A.D.2d 573 (3^rd Dept. 1998) (because petitioner is an aggrieved candidate within the meaning of Election Law § 16-102 (1), he was not required to file objections and specifications to the petition prior to commencing this proceeding.) The Respondents urge this Court to apply Election Law § 6-154(2) which addresses the right of any registered voter to file written objections to certificates of acceptance. This section, however, does not affect the rights of candidates aggrieved to commence judicial proceedings.

In Baird v. Ness, 109 A.D.2d 975 (3^rd Dept. 1985), the petitioners commenced proceedings to declare invalid the independent nominations of two candidates for the office of trustee in a village general election. Those proceedings, notably related to a challenge regarding certificates of acceptance, were properly commenced pursuant to Election Law § 16-102(1). In Baird, the Third Department rejected the petitioners' argument that time limitations set forth in Election Law § 16-102(2) were inapplicable to those proceedings as it was not a "proceeding with...