Liepshutz v. Palmateer
| Decision Date | 23 August 1985 |
| Citation | 493 N.Y.S.2d 234,112 A.D.2d 1101 |
| Parties | In the Matter of Gerald H. LIEPSHUTZ, Appellant, v. Lawrence PALMATEER, Jr., et al., Constituting the Greene County Board of Elections, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Paul M. Whitaker, Albany, for appellant.
Feit & Schlenker, Albany (Dennis B. Schlenker, Albany, of counsel), for Daniel K. Lalor, respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Trial Term, entered August 16, 1985 in Greene County, which dismissed petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the designating petition naming respondent Daniel K. Lalor as the Democratic candidate for the office of County Judge of Greene County in the September 10, 1985 primary election.
Petitioner and respondent Daniel K. Lalor are seeking to become the Democratic candidate for the office of County Judge of Greene County in this year's election. Lalor's designating petition contained 528 signatures with 284 valid signatures required for a spot on the Democratic primary ballot. Petitioner commenced this proceeding to invalidate Lalor's designating petition. In addition to raising specific objections to each page of the designating petition, petitioner raised several objections to the petition as a whole, including, inter alia, that the cover sheet and individual pages of the petition failed to sufficiently describe the public office being sought by Lalor. The basis for this latter objection was Lalor's failure to make any reference to Greene County in describing the office being sought as simply "County Judge".
After conducting a "line-by-line" hearing, Trial Term rejected petitioner's objection to the petition as a whole based on the description of the office being sought and invalidated 173 of the petition's signatures. Since 355 valid signatures remained (more than the 284 needed), Trial Term dismissed petitioner's challenge to Lalor's designating petition. This appeal by petitioner ensued.
Candidates must strictly comply with the mandates of Election Law § 6-132(1) and § 6-134(2) requiring that the individual pages and cover sheet of a designating petition contain the name of the public office or party position being sought (Matter of Smith v. Mahoney, 60 N.Y.2d 596, 467 N.Y.S.2d 191, 454 N.E.2d 531). Since, unlike many other items of information required to be present in a designating petition, the name of the public office being sought is capable of description in a variety of ways, a rule has developed whi allows a description of the office which is "sufficiently informative * * * so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections" (Matter of Donnelly v. Mc Nab, 83 A.D.2d 896, 442 N.Y.S.2d 532; accord, Matter of Jacobson v. Schermerhorn, 104 A.D.2d 534, 479 N.Y.S.2d 586).
Lalor's designating petition is alleged to be defective in that its cover sheet and individual pages list the office being sought as "County Judge" without making any reference to Greene County. The description of any public office is comprised of two components--one part describing the title of the office holder (County Judge in this case) and a second part describing the geographic territory covered by the office (Greene County in this case). Lalor's petition thus contains the title but not the geographic territory of the office he is seeking.
In cases in which the geographic territory has appeared on the designating petitions without reference to the title of the office, petitions have been invalidated where more than one title of public office or party position are elected from the particular geographic territory involved (Matter of Jacobson v. Schermerhorn, supra []; Matter of Denn v. Mahoney, 64 A.D.2d 1007, 409 N.Y.S.2d 285 [] ). The common thread in these two decisions was that confusion could occur to those reading the petition since the ambiguity in the title of the office involved could not be resolved by any other information in the designating petition.
In Matter of Donnelly v. Mc Nab (supra), however, the converse situation occurred with the title of the office appearing without reference to the geographic territory involved. Designating petitions involving the party position of County Committee Member from various election districts in the Town of Babylon, Suffolk County, were upheld despite the lack of any reference to the Town of Babylon since other information contained in the rest of the petition precluded any reasonable probability of confusion (id.).
In the instant case, like in Donnelly, the failure to describe the geographic territory of the office involved does not create a "reasonable probability of confusing or deceiving the signers, voters or board of elections" (Matter of Donnelly v. Mc Nab, supra, 83 A.D.2d p. 896, 442 N.Y.S.2d 532). At the top of each and every page of the petition and cover sheet, the residence of Lalor is listed as "58 William Street, Catskill, New York 12414". In view of the fact that Catskill is the county seat of Greene County, there does not appear to be any reasonable probability that someone dealing with Lalor's petition for "County Judge" could have thought that it represented any county other than Greene County.
Turning to the line-by-line challenges, we will first deal with the witness statements. Election Law § 6-132(2) mandates that the witness statement contain, inter alia, the residence address of the witness as well as the town or city in which the witness resides. On page 20 of the designating petition, the witness gave her post office box which is not satisfactory as a residence address (see, Matter of Hess v. Di Pronio, 96 A.D.2d 1134, 467 N.Y.S.2d...
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