Matter of Werner v. Castiglione

• Decision Date: 23 August 2001
• Docket Number: No. 2,No. 1,1,2
• Citation: 729 N.Y.S.2d 227
• Parties: (A.D. 3 Dept. 2001) In the Matter of DIETRICH WERNER, Respondent, v HARRY M. CASTIGLIONE et al., as Commissioners of the Ulster County Board of Elections, Respondents, and MARK J. BRANDHOFER, Appellant. (Proceeding) In the Matter of TERENCE CARLE, Respondent, v HARRY M. CASTIGLIONE et al., as Commissioners of the Ulster County Board of Elections, Respondents, and DOMINICK VANACORE, Appellant. (Proceeding) 90101 90111 : THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 227

729 N.Y.S.2d 227 (A.D. 3 Dept. 2001)

In the Matter of DIETRICH WERNER, Respondent, v HARRY M. CASTIGLIONE et al., as Commissioners of the Ulster County Board of Elections, Respondents, and MARK J. BRANDHOFER, Appellant.

(Proceeding No. 1.)

In the Matter of TERENCE CARLE, Respondent, v HARRY M. CASTIGLIONE et al., as Commissioners of the Ulster County Board of Elections, Respondents, and DOMINICK VANACORE, Appellant.

(Proceeding No. 2.)

90101

90111

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: August 23, 2001

Decided and Entered: August 23, 2001

Wapner, Koplovitz & Futerfas P.L.L.C. (Joshua N. Koplovitz of counsel), Kingston, for appellants.

Dietrich E. Werner, Cottekill, respondent in person.

Peter Case Graham, Kingston, for Terence Carle, respondent.

Before: Cardona, P.J., Mercure, Crew III, Rose and Lahtinen, JJ.

Per Curiam.

Appeals (1) in proceeding No. 1 from a judgment of the Supreme Court (Kavanagh, J.), entered August 10, 2001 in Ulster County, which granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the petition for the opportunity to ballot for the Independence Party nomination for various offices in the September 11, 2001 primary election, and (2) in proceeding No. 2 from a judgment of said court, entered August 10, 2001 in Ulster County, which granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the petition for the opportunity to ballot for the Independence Party nomination for the office of Ulster County Legislator in Legislative District 2 in the September 11, 2001 primary election.

Initially, we have considered and reject the necessary party argument. Turning to the merits, the opportunity to ballot petitions in these proceedings contain the appropriate form for the appointment of a Committee to Receive Notices, but the space for the names and addresses of the appointees in each petition is blank. Prior to the Election Reform Act of 1992 (L 1992, ch 79), the absence of a Committee to Receive Notices was a fatal defect (see, Matter of Krupczak v Mancini, 153 A.D.2d 785), as was the absence of a Committee to Fill Vacancies in a designating petition (see, Matter of Richter v Thaler, 11 N.Y.2d 722). However, Election Law § 6-134, which contains the rules for designating petitions, now specifically provides that "the failure to list a committee to fill vacancies * * * shall not invalidate the petition unless a vacancy occurs which, under law, may be filled only by such a committee" (Election Law § 6-134 [8]). By amending the Election Law to so provide, "the Legislature has made clear that it does not deem a Committee to Fill Vacancies an essential element of a designating petition [and t]hus, a candidate's failure to list a Committee to Fill Vacancies on some or all of his designating petitions will not invalidate the...