In the Matter of Mackay v. Johnson, 2008-07450

• Decision Date: 20 August 2008
• Docket Number: No. 2008-07450,2008-07450
• Citation: 863 N.Y.S.2d 85,2008 NY Slip Op 6662,54 A.D.3d 428
• Parties: In the Matter of FRANK MACKAY et al., Respondents-Appellants, et al., Petitioners, v. CRAIG M. JOHNSON, Appellant-Respondent, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 428

863 N.Y.S.2d 85

2008 NY Slip Op 6662

In the Matter of FRANK MACKAY et al., Respondents-Appellants, et al., Petitioners, v. CRAIG M. JOHNSON, Appellant-Respondent, et al., Respondents.

No. 2008-07450

Appellate Division of the Supreme Court of New York, Second Department.

August 20, 2008.

Ordered that the final order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the cross appeal is dismissed, without costs or disbursements, as the respondents-appellants are not aggrieved by the final order (see CPLR 5511).

The appellant, Craig M. Johnson, is the Democratic candidate for State Senator for the 7th Senatorial District. A petition also was filed to designate Johnson as a candidate for the nomination of the Independence Party for the same office in a primary election to be held September 9, 2008.

The instant proceeding was brought to invalidate the petition designating Johnson as a candidate for the nomination of the Independence Party. Barbara Donno, the candidate designated by the Executive Committee of the New York State Committee of the Independence Party (hereinafter the Executive Committee), aligned herself with the petitioners at the time the matter was heard by the Supreme Court. Johnson brought a cross petition, which the court construed as setting forth counterclaims, to challenge the substitution of Donno for Nicole Gadaleta, who was initially designated as the Independence Party candidate, but declined the nomination. Johnson also made an application to recuse Justice Lally from the proceedings.

The court amended the caption to designate Donno, who originally was denominated a respondent, as a petitioner, and found that she had standing to challenge Johnson's designating petition as an aggrieved candidate, but found that the other petitioners did not have standing to challenge the designating petition. The court held that since Johnson was not authorized to appear on the ballot by the Executive Committee, he was prohibited from filing a designating petition.

Contrary to Johnson's contentions, the Supreme Court properly amended the caption to designate Donno as a petitioner. "Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice" (Hoot Group, Inc. v Caplan, 9 AD3d 448 [2004] [citation and internal quotation marks omitted]; see CPLR 104). Furthermore, Johnson does not have standing to challenge the substitution of Donno as the Independence Party candidate because his challenge relates to the internal functioning of a political party of which he is not an enrolled member (see Election Law § 16-102 [1]; Matter of Stempel v Albany County Bd. of Elections, 60 NY2d 801, 803 [1983]; Matter of Wydler v Cristenfeld, 35 NY2d 719, 720 [1974]; Matter of Nicolai v McKay, 45 AD3d 965, 966-967 [2007]; Matter of Hariton v McNab, 83 AD2d 898 [1981]). Moreover, the Supreme Court providently exercised its discretion in denying Johnson's application for recusal, since he failed to provide proof of any of the statutory disqualifications under Judiciary Law § 14, and did not prove any bias or prejudice by...