Ladore v. Mayor and Bd. of Trustees of Village of Port Chester

• Decision Date: 09 May 1979
• Citation: 416 N.Y.S.2d 280,70 A.D.2d 603
• Parties: In the Matter of Daniel LADORE, Respondent, v. The MAYOR AND BOARD OF TRUSTEES OF the VILLAGE OF PORT CHESTER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 280

416 N.Y.S.2d 280

70 A.D.2d 603

In the Matter of Daniel LADORE, Respondent, v. The MAYOR AND BOARD OF TRUSTEES OF the VILLAGE OF PORT CHESTER et al., Appellants.

Supreme Court, Appellate Division, Second Department.

May 9, 1979.

Thomas J. Abinanti, White Plains, for appellant Guarino.

Erwin M. Blant, Port Chester, for the village appellants.

Monroe Yale Mann, Port Chester, for respondent.

Before RABIN, J. P., and GULOTTA, MARTUSCELLO and MANGANO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding Inter alia to declare the validity of a certain absentee ballot and to declare petitioner to be the successful candidate in the General Election held on April 24, 1979 for the public office of Trustee of the Village of Port Chester, the appeals are from a judgment of the Supreme Court, Westchester County, dated May 3, 1979, which granted the petition, ruled the absentee ballot to be valid and declared petitioner to be the successful candidate.

Judgment affirmed, without costs or disbursements.

As a result of the April 24, 1979 election held for the public office of Trustee of the Village of Port Chester (two positions were to be filled), 2089 votes were cast for petitioner and 2088 votes were cast in favor of appellant Joseph A. Guarino. Another candidate received substantially more votes than either petitioner or Guarino. On the evening of April 24, after the foregoing tally was reported, the appellant Village Clerk voided an absentee ballot which was in the petitioner's favor, thereby causing a tie vote for the second trustee position. Thereupon, the Board of Elections of Westchester County recanvassed the votes and confirmed the tie, noting that since its two commissioners disagreed as to the validity of the one absentee ballot voided by the Village Clerk, said vote was not included in the 2088 votes that they had found were cast in favor of the petitioner.

On April 26, 1979, the same day that the Board of Elections confirmed, in writing, the results of its recanvass, notice was given to appellants that the petitioner would bring the instant proceeding. The petition annexed to the order to show cause was dated April 26, 1979 and was duly served. However, it was not verified as required by section 16-116 of the Election Law. It was merely acknowledged, which is technically insufficient (see Matter of Leene v. Williams, 14 A.D.2d 665, 219 N.Y.S.2d 446). However, under the circumstances of this case, we are of the opinion that the appellants, by their conduct, waived their right to object on this ground. The appellants, as evidenced by their answers, were aware of the lack of verification on April 28, 1979 (appellant Guarino) and April 30, 1979 (the village appellants). However, they made no mention of such fact on the return date of the order to show cause, April 30, 1979, at which time they protested lack of personal service. Instead, they waited until May 1, 1979, the day after petitioner could remedy this defect, before raising the issue.

We believe that Special Term properly concluded that this delay, in a summary proceeding such...