McKinney v. Relin

• Decision Date: 20 August 1993
• Citation: 197 A.D.2d 839,602 N.Y.S.2d 247
• Parties: Matter of Lee McKINNEY and Mary Lee Tyler, Appellants-Respondents, v. M. Betsy RELIN and Ronald Starkweather, Commissioners, Monroe County Board of Elections, Respondents, and Edward T. Marianetti, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 247

602 N.Y.S.2d 247

197 A.D.2d 839

Matter of Lee McKINNEY and Mary Lee Tyler, Appellants-Respondents, v. M. Betsy RELIN and Ronald Starkweather, Commissioners, Monroe County Board of Elections, Respondents, and Edward T. Marianetti, Respondent-Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Aug. 20, 1993.

Before CALLAHAN, J.P., and LAWTON, FALLON, BOOMER and BOEHM, JJ.

MEMORANDUM:

We agree with Supreme Court that verification by one of the petitioners was sufficient (see, Matter of Glowacki v. Smolinski, 89 A.D.2d 1053, 454 N.Y.S.2d 563, lv. denied, 57 N.Y.2d 605, 454 N.Y.S.2d 1030, 440 N.E.2d 1341). Contrary to the determination of Supreme Court, however, the petition in this proceeding to invalidate the designating petition of a candidate for town office was properly received even though it did not contain certain exhibits referred to in the petition (see, Matter of Previdi v. Matthews, 185 A.D.2d 962, 587 N.Y.S.2d 22). Although the order to show cause directed that the order be served "together with the annexed papers," the record shows that the exhibits were not annexed to the petition when the court signed the order to show cause. Thus, the order to show cause did not direct their service.

Further, we determine that the record does not establish that the other candidates for town office were necessary parties to the petition. There is no showing that, if the petitioners were to succeed in this action, the other candidates would be inequitably affected (see, CPLR 1001[a]. The objections to the designating petition refer only to the petition "which purports to designate Edward Marianetti for the public office of Ogden Highway Superintendent." The objections do not challenge the nomination of the other candidates named on the designating petition; thus, any judgment in this proceeding could not affect the other candidates. Moreover, the record fails to show whether additional petitions were filed pertaining to the other candidates. Unlike the cases of Matter of Marin v. Board of Elections of State of N.Y., 67 N.Y.2d 634, 499 N.Y.S.2d 664, 490 N.E.2d 531, and Matter of Greenspan v. O'Rourke, 27 N.Y.2d 846, 316 N.Y.S.2d 639, 265 N.E.2d 462, relied upon by Supreme Court, it does not appear that the rights of the other candidates are "inextricably interwoven" with those of the candidate for Ogden Highway Superintendent.

Finally, we dismiss the cross appeal. Respondent Marianetti was not aggrieved by the order appealed...