In the Matter of Charles Burkwit v. Olson

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PRESENT: CENTRA, J.P., FAHEY, GREEN, AND GORSKI, JJ.
• Citation: In the Matter of Charles Burkwit v. Olson, 87 A.D.3d 1264, 929 N.Y.S.2d 348, 2011 N.Y. Slip Op. 6421 (N.Y. App. Div. 2011)
• Decision Date: 09 September 2011
• Parties: In The Matter of Charles BURKWIT, Petitioner–Appellant,v.Daniel A. OLSON, Chairman, Wayne County Republican Committee, Doris Cole, Chair of Town of Williamson Republican Committee, and Town of Williamson Republican Committee, Respondents–Respondents.

87 A.D.3d 1264

929 N.Y.S.2d 348

2011 N.Y. Slip Op. 06421

In The Matter of Charles BURKWIT, Petitioner–Appellant,

v.Daniel A. OLSON, Chairman, Wayne County Republican Committee, Doris Cole, Chair of Town of Williamson Republican Committee, and Town of Williamson Republican Committee, Respondents–Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Sept. 9, 2011.

Charles Burkwit, Rochester, Petitioner–Appellant Pro Se.Anthony J. Villani, P.C., Lyons (Mary Katherine Villani of Counsel), For Respondents–Respondents.PRESENT: CENTRA, J.P., FAHEY, GREEN, AND GORSKI, JJ.MEMORANDUM:

Petitioner commenced this proceeding seeking, inter alia, to annul the caucus of respondent Town of Williamson Republican Committee (Town Committee), held on July 28, 2011, insofar as it pertains to the two offices of Town Justice, and to compel the Town Committee to hold a new caucus for those offices. Supreme Court properly determined that the other candidates who appeared before the caucus for the two offices of Town Justice were necessary parties to the proceeding ( see Matter of Castracan v. Colavita, 173 A.D.2d 924, 925, 569 N.Y.S.2d 792, appeal dismissed 78 N.Y.2d 1041, 576 N.Y.S.2d 209, 582 N.E.2d 592), and that petitioner's failure to join them would require dismissal of the petition ( see Matter of Quis v. Putnam County Bd. of Elections, 22 A.D.3d 585, 802 N.Y.S.2d 709; see also Matter of Dixon v. Reynolds, 65 A.D.3d 819, 883 N.Y.S.2d 747, lv. denied 13 N.Y.3d 701, 2009 WL 2605304; see generally CPLR 1001[a]; 1003).

At the hearing on the petition, however, petitioner moved for leave to amend the order to show cause and petition in order to join the additional candidates. The court failed to address that motion for joinder, and such failure is deemed a denial thereof ( see Brown v. U.S. Vanadium Corp., 198 A.D.2d 863, 864, 604 N.Y.S.2d 432). Counsel for respondents acknowledged at oral argument before this Court that petitioner's motion was made within 10 days of “the filing of the certificate of nominations made at [the] caucus” (Election Law § 16–102[2]; see also Matter of Marin v. Board of Elections of State of N.Y., 67 N.Y.2d 634, 636–637, 499 N.Y.S.2d 664, 490 N.E.2d 531; Matter of Borelli v. Meier, 264 A.D.2d 479, 694 N.Y.S.2d 155), and thus the motion was timely. Because leave to amend pleadings “shall be freely given” (CPLR 3025[b]; see Haga v. Pyke, 19 A.D.3d 1053, 1054–1055, 796 N.Y.S.2d 507), we conclude that the court erred in denying the motion.

We further conclude that the court erred in determining that petitioner does not have standing to maintain this proceeding. Petitioner is an aggrieved candidate within the meaning of Election Law § 16–102 inasmuch as he contends that respondents failed to follow “a legislatively mandated requirement of the Election Law” and that he was thereby deprived of the opportunity to be nominated as a candidate ( Matter of Gross v. Hoblock, 6 A.D.3d 933, 935, 775 N.Y.S.2d 421; see Matter of Liepshutz v. Palmateer, 112 A.D.2d 1098, 1099, 493 N.Y.S.2d 233, affd. 65 N.Y.2d 963, 494 N.Y.S.2d 108, 484 N.E.2d 137; Matter of DiStefano v. Kiggins, 254 A.D.2d 688, 678 N.Y.S.2d 416). We agree with petitioner that the caucus rule passed by respondents, which mandated that only registered Republicans could be nominated for office at the caucus, violates Election Law § 6–120(4) and is therefore invalid ( see Matter of Grancio v. Coveney, 96 A.D.2d 917, 466 N.Y.S.2d 102, affd. 60 N.Y.2d 603, 467 N.Y.S.2d 194, 454 N.E.2d 534; see generally Matter of Rosenthal v. Harwood, 35 N.Y.2d...