Keal v. Board of Elections of State of N.Y.

• Decision Date: 23 August 1990
• Citation: 164 A.D.2d 962,559 N.Y.S.2d 763
• Parties: In the Matter of William B. KEAL, Respondent, v. BOARD OF ELECTIONS OF the STATE of New York, Respondent, and Felix J. Germano, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 763

559 N.Y.S.2d 763

164 A.D.2d 962

In the Matter of William B. KEAL, Respondent, v. BOARD OF ELECTIONS OF the STATE of New York, Respondent and Felix J. Germano, Appellant.

Supreme Court, Appellate Division Third Department.

Aug. 23, 1990.

Jean Mary Reinhardt, Cohoes, for appellant.

Marc S. Ehrlich, Troy, for William B. Keal, respondent.

John N. Ciampoli, Albany, for Bd. of Elections of State of N.Y., respondent.

Before KANE, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

PER CURIAM.

Appeal from a judgment of the Supreme Court (Keniry, J.), entered August 17, 1990 in Albany County, which granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare valid the designating petition naming petitioner as the Democratic Party candidate for the office of Member of Assembly for the 106th Assembly District in the September 11, 1990 primary election.

On July 12, 1990, a petition containing 598 signatures was filed with respondent State Board of Elections (hereinafter the Board) designating petitioner as the Democratic Party candidate for the office of Member of Assembly for the 106th Assembly District. Respondent Felix J. Germano then filed general and specific objections to the designating petition. Following a hearing, the Board issued a determination on July 27, 1990 invalidating 100 of the signatures, leaving petitioner with only 498 valid signatures, two less than the required 500.

Petitioner subsequently commenced this proceeding seeking to validate his petition and Germano served an answer containing only general denials. Following a hearing conducted in Supreme Court on August 14, 1990, Germano moved to amend his answer to plead an affirmative defense seeking the invalidation of certain of the signatures which the Board had found to be valid. Supreme Court denied the motion and, on the merits of the proceeding, validated seven signatures contained on sheet No. 68 of petitioner's designating petition, thus raising the total number of valid signatures to 505 and rendering the petition valid. Germano appeals.

We affirm. Because Germano was an objector and not a candidate seeking to validate a petition previously invalidated by the Board, the time for commencement of a proceeding to invalidate signatures on petitioner's designating petition expired on July 26, 1990, at the conclusion of the 14-day limitations period specified in Election Law § 16-102(2) (see, Matter of Krupczak v. Mancini, 153 A.D.2d 785, 786, 545 N.Y.S.2d 51; see also, Matter of Bruno v. Peyser, 40 N.Y.2d 827, 828, 387 N.Y.S.2d 563, 355 N.E.2d 792). Thus, Supreme Court correctly denied Germano's motion to amend his answer to assert an affirmative defense seeking invalidation of certain of the signatures.

We also agree with Supreme Court's determination to...