Maxwell v. Hill

• Citation: 225 A.D.2d 947,640 N.Y.S.2d 280
• Parties: In the Matter of Joseph MAXWELL, Appellant, v. Timothy E. HILL et al., Constituting the Board of Elections of the County of Sullivan, et al., Respondents.
• Decision Date: 18 March 1996
• Court: New York Supreme Court Appellate Division

Page 280

640 N.Y.S.2d 280

225 A.D.2d 947

In the Matter of Joseph MAXWELL, Appellant, v. Timothy E. HILL et al., Constituting the Board of Elections

of the County of Sullivan, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

March 18, 1996.

Zachary D. Kelson, Monticello, for appellant.

Gerald Orseck, Liberty, for Joan M. Stoddard, respondent.

Before CARDONA, P.J., and MERCURE, CREW, WHITE and SPAIN, JJ.

PER CURIAM.

Appeal from an order of the Supreme Court (Bradley, J.), entered March 7, 1996 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the independent nominating petition naming respondent Joan M. Stoddard as the Liberty's Choice Party candidate for the office of Village Trustee of the Village of Liberty in the March 19, 1996 Village election.

On February 13, 1996, an independent nominating petition was filed by the Liberty's Choice Party in the office of the Sullivan County Board of Elections (hereinafter the Board) purporting to nominate respondent Joan M. Stoddard (hereinafter respondent) as a candidate for the office of Village of Liberty Trustee. Petitioner timely filed an objection to the independent nominating petition, as well as specifications of objections, with the Board. Prior to receiving the Board's determination, petitioner, by order to show cause, petitioned to invalidate respondent's independent nominating petition.

Thereafter, the Board sustained the independent nominating petition on the ground that it could not reach a majority in ruling on the objections. In the Board's determination, respondent Timothy E. Hill, a Board Commissioner, in voting to overrule an objection made by petitioner that a subscribing witness's failure to insert an election district in the statement of a witness is a fatal defect, asserted that there are no election districts in the Village. In light of that assertion, petitioner notified counsel for respondent that, in the event Supreme Court determined that there were no election districts in the Village of Liberty, he intended to raise the alternative argument that the insertion of improper election districts by signatories and witnesses renders the independent nominating petition invalid. In a reply affirmation of petitioner's counsel to Supreme Court, a specific request was made to the court to amend the petition to reflect that alternative objection in the event the court found the Village had no election districts.

Supreme Court, finding that the independent nominating petition contained sufficient valid signatures, dismissed the proceeding. In so deciding, the court specifically found that the Village has not been divided into election districts. Petitioner appeals.

The issue is whether respondent's independent nominating petition complied with the mandates of Election Law § 6-206. Because we are of the view that it does not, we reverse Supreme Court's order, grant petitioner's motion to amend the petition and, as amended, grant the petition.

Pursuant to Election Law § 6-206(4), respondent was required to obtain at least 75 signatures of voters in the Village on the independent nominating petition. Of paramount concern in this proceeding is the fact, as asserted by, among others, respondent, and accepted as true by this court, that the Village does not have any Village election districts (see, Election Law § 15-110). Notwithstanding this fact, every person who signed the petition, bar one, inserted an election district, by reference to the number 1, 2, 5, 6, 7 or 8, in the box delineated "Village Election District if any". Similarly, several of the subscribing witnesses inserted an election district, by reference to the number 1, 2 or 5, in the statement of witness.

The insertion of an incorrect election district by a signatory or subscribing witness on a nominating petition is a fatal defect (see, Matter of Higby v. Mahoney, 48 N.Y.2d 15, 421 N.Y.S.2d 35, 396 N.E.2d 183; Matter of Morgan v. Jenkins, 208 A.D.2d 732, 617 N.Y.S.2d 516; Matter of Phanelson v. Pabon, 192 A.D.2d 609, 596 N.Y.S.2d 144, lv. denied 81 N.Y.2d 708, 597 N.Y.S.2d 938, 613 N.E.2d 970; Matter of Falu v. Wagner, 185 A.D.2d 791, 586 N.Y.S.2d 969, lv....