Settineri v. DiCarlo

• Decision Date: 01 November 1993
• Docket Number: No. 2,No. 1,1,2
• Citation: 82 N.Y.2d 813,604 N.Y.S.2d 546,624 N.E.2d 683
• Parties: , 624 N.E.2d 683 In the Matter of Vito J. SETTINERI et al., Respondents, v. Robert J. DiCARLO et al., Appellants, et al., Respondents. Arthur Bramwell, Proposed Intervenor. (Proceeding) In the Matter of Phillip A. DONOHUE et al., Respondents, v. Robert J. DiCARLO et al., Appellants, et al., Respondents. Arthur Bramwell, Proposed Intervenor. (Proceeding)
• Court: New York Court of Appeals Court of Appeals

Page 546

604 N.Y.S.2d 546

82 N.Y.2d 813, 624 N.E.2d 683

In the Matter of Vito J. SETTINERI et al., Respondents, v. Robert J. DiCARLO et al., Appellants, et al., Respondents.

Arthur Bramwell, Proposed Intervenor. (Proceeding No. 1.)

In the Matter of Phillip A. DONOHUE et al., Respondents, v. Robert J. DiCARLO et al., Appellants, et al., Respondents.

Arthur Bramwell, Proposed Intervenor. (Proceeding No. 2.)

Court of Appeals of New York.

Nov. 1, 1993.

[82 N.Y.2d 816] Robert S. Meyers, Brooklyn, for appellants.

Dorn & Corley, P.C., Brooklyn (Aaron D. Maslow, of counsel), for Vito J. Settineri and others, respondents.

Rosenthal, Vallario, Leventhal & Coffinas, Brooklyn (John M. Leventhal, of counsel), for Phillip A. Donohue and others, respondents.

OPINION OF THE COURT

Order reversed, without costs, and petitions dismissed for reasons stated in the dissenting in part in memorandum of Justice Vincent R. Balletta at the Appellate Division (197 A.D.2d 724, 726, 605 N.Y.S.2d 95, 96).

KAYE, C.J., and SIMONS, TITONE, HANCOCK, BELLACOSA and LEVINE, JJ., concur.

SMITH, J., dissents and votes to confirm in an opinion.

SMITH, Judge (dissenting).

I dissent from the decision to reverse the order of the Appellate Division and to permit an outgoing Chairman of the Kings County Republican Party to nominate himself as the Republican candidate for Senator in the 23rd Senatorial District.

The issue here is who has the authority to nominate a Republican candidate for the New York State Senate where a vacancy occurs too late for the normal petitioning process to take place. Under those circumstances the rules of the Republican Party permit the county chairperson(s) (in this case the chairpersons of Kings and Richmond Counties) to select the candidate for the 23rd Senatorial District. ^* This procedure, of course, is subject to the requirements of the Election Law. In the Appellate Division, the contention of the petitioners was that because a primary election had been held and a new county committee selected, that committee had the right to elect a new chairman who would then select the candidate for the Senate. The respondents contended that because there was insufficient time to organize the new county committee before the name of the Senate candidate was required to be filed, the outgoing chairman had the right to choose the candidate and he properly chose himself.

Election Law § 6-158(6) requires the certificate for a party nomination, other than one made at the primary election, to be filed within seven days after the primary election. Here, four certificates nominating Robert DiCarlo were filed with the Board of Elections. All four certificates were signed by Robert DiCarlo. Two of the certificates were also signed by Olga Igneri, the Chairman of the Richmond County Republican Committee.

The decision of the Appellate Division should be upheld for at least two reasons. First, both the Election Law and our own precedents require that the senatorial candidate be selected by the new county committee chairperson. Thus, a certificate of a party for nomination, other than one made at the primary election, for an office to be filled at the next general election, must be filed only after the primary election (see, Election Law § 6-158[6]. This permits the relevant persons elected at the primary, in this case, the new county committee, to influence the determination of the candidate of that party....