Matter of Master v. Pohanka

• Decision Date: 30 October 2007
• Docket Number: 2007-09779.
• Citation: 2007 NY Slip Op 08231,44 A.D.3d 1050,845 N.Y.S.2d 376
• Parties: In the Matter of ROBERT MASTER et al., Respondents, v. CHARLES J. POHANKA III et al., Appellants, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 1050

845 N.Y.S.2d 376

2007 NY Slip Op 08231

In the Matter of ROBERT MASTER et al., Respondents, v. CHARLES J. POHANKA III et al., Appellants, et al., Respondents.

2007-09779.

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

Decided October 30, 2007.

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate certain so-called Wilson-Pakula certificates (see Election Law § 6-120 [3]) and certificates of substitution issued by the Executive Committee of the Suffolk County Working Families Party Executive Committee, authorizing certain persons to appear as candidates on the ballot in a general election to be held on November 6, 2007, Charles J. Pohanka III, Donna Lent, the "Executive Committee of the Suffolk County Working Families Party Executive Committee," and Edward D. Burke, Sr., appeal, as limited by their brief, from so much of a final order of the Supreme Court, Nassau County (Diamond, J.), dated October 23, 2007, as (1) granted those branches of the petition which were to annul the certificate of substitution issued by the "Executive Committee of the Suffolk County Working Families Party Executive Committee," purporting to nominate Edward D. Burke, Sr., as a candidate for the public office of Town Justice in the Town of Southampton, to enjoin the Suffolk County Board of Elections from placing his name on the ballot for the general election to be held on November 6, 2007 and to enjoin the Suffolk County Board of Elections from accepting any further so-called Wilson-Pakula certificates or certificates of substitution from the Suffolk County Working Families Party and the "Executive Committee of the Suffolk County Working Families Party Executive Committee," provided that the current rules of the New York State Working Families Party remain in force, (2) enjoined the Suffolk County Working Families Party County Committee, the "Executive Committee of the Suffolk County Working Families Party Executive Committee," Charles J. Pohanka III, and Donna Lent from issuing so-called Wilson-Pakula certificates or certificates of substitution provided that the current rules of the New York State Working Families Party remain in force, and (3), in effect, denied the motion of Charles J. Pohanka III, Donna Lent, the "Executive Committee of the Suffolk County Working Families Party Executive Committee," and Edward D. Burke, Sr., a candidate for the public office of Town Justice in the Town of Southampton, to dismiss the petition pursuant to CPLR 3211 (a) (1), (7), and (10).

Ordered that the final order is modified, on the law, by deleting the provision thereof enjoining the Suffolk County Working Families Party County Committee, the "Executive Committee of the Suffolk County Working Families Party Executive Committee," Charles J. Pohanka III, and Donna Lent from issuing so-called Wilson-Pakula certificates and certificates of substitution provided that the current rules of the New York State Working Families Party remain in force; as so modified, the final order is affirmed insofar as appealed from, without costs or disbursements.

As the Supreme Court correctly observed, the appellants' objection to the allegedly defective verification of the petition was waived by their failure to raise the objection with due diligence. "Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he [or she] gives notice with due diligence to the attorney of the adverse party that he [or she] elects so to do" (CPLR 3022). While "due diligence" has been interpreted as "immediately" and within 24 hours (Matter of Ladore v Mayor & Bd. of Trustees of Vil. of Port Chester, 70 AD2d 603, 604 [1979]), the Court of Appeals, in considering CPLR 3022, has stated that it has "never specified a uniform time period by which to measure due diligence" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). Election Law proceedings are subject to severe time constraints, and they require immediate action (see Matter of Tenneriello v Board of Elections in City of N.Y., 104 AD2d 467, 468 [1984]). Under the particular circumstances of this Election Law proceeding, we conclude that the appellants failed to exercise due diligence with respect to providing notice that they elected to treat the petition as a nullity due to the allegedly defective verification (see CPLR 3022; see also ...