In the Matter of Waugh v. Nowicki

• Decision Date: 19 August 2004
• Docket Number: 2004-07071.,2004-07070.
• Parties: In the Matter of JAMES WAUGH et al., Appellants, v. HENRYK NOWICKI, Respondent, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

10 A.D.3d 437

780 N.Y.S.2d 737

2004 NY Slip Op 06412

In the Matter of JAMES WAUGH et al., Appellants, v. HENRYK NOWICKI, Respondent, et al., Respondents.

2004-07070.

2004-07071.

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

Decided August 19, 2004.

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Henryk Nowicki as a candidate in a primary election to be held on September 14, 2004, for the nomination of the Conservative Party as its candidate for the public office of State Senator, 5th Senate District, the petitioners appeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, Nassau County (Iannacci, J.), dated August 5, 2004, and (2) so much of a final order of the same court dated August 10, 2004, as, upon renewal and reargument, adhered to the original determination and dismissed the proceeding.

Ordered that the appeal from the order dated August 5, 2004, is dismissed, without costs or disbursements, as that order was superseded by the final order dated August 10, 2004, made upon renewal and reargument; and it is further, Ordered that the final order dated August 10, 2004, is affirmed insofar as appealed from, without costs or disbursements.

The petitioners failed to plead the fraud claims with the requisite specificity (see CPLR 3016 [b]; Matter of Naples v Swiatek, 286 AD2d 567 [2001]; Matter of O'Toole v D'Apice, 112 AD2d 1078 [1985]; Matter of Belak v Rossi, 96 AD2d 1011 [1983]). Moreover, the specifications of objections that the petition incorporated by reference were insufficiently detailed to apprise the respondent candidate of the allegations being made against his designating petition (cf. Matter of Mazza v Board of Elections of County of Albany, 196 AD2d 679 [1993]; Matter of Oberle v Caracappa, 133 AD2d 202 [1987]). Accordingly, since the petitioners were unable to invalidate the designating petition without proof of fraud, the Supreme Court properly dismissed the proceeding.

Under the circumstances of this case, the petitioners' remaining contention does not require reversal.

Florio, J.P., Goldstein, Crane and Cozier, JJ., concur.