Settineri v. DiCarlo, 1

• Decision Date: 26 October 1993
• Docket Number: No. 2,No. 1,1,2
• Citation: 605 N.Y.S.2d 95,197 A.D.2d 724
• Parties: In the Matter of Vito J. SETTINERI, et al., Respondents-Appellants, v. Robert J. DiCARLO, et al., Appellants-Respondents, et al., Respondents; Arthur Bramwell, Proposed Intervenor-Appellant (Proceeding). In the Matter of Phillip A. DONOHUE, et al., Petitioners-Respondents, v. Robert J. DiCARLO, et al., Appellants, et al., Respondents; Arthur Bramwell, Proposed Intervenor-Appellant (Proceeding).
• Court: New York Supreme Court — Appellate Division

Page 95

605 N.Y.S.2d 95

197 A.D.2d 724

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

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

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

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

Supreme Court, Appellate Division Second Department.

Oct. 26, 1993.

Before BALLETTA, J.P., and MILLER, COPERTINO, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

In consolidated proceedings pursuant to Election Law article 16, inter alia, to invalidate certificates of nomination filed with the Board of Elections of the City of New York purporting to nominate Robert J. DiCarlo as the candidate of the Republican Party for the office of Senator from the 23rd Senatorial District, Kings and Richmond Counties, Robert J. DiCarlo, Olga Igneri, William D. Powers, the New York Republican State Committee, the Kings County Republican County Committee and the Richmond County Republican County Committee appeal, as limited by their respective briefs, from stated portions of an order and judgment (one paper) of the Supreme Court, Kings County (Garry, J.), dated October 20, 1993, which, among other things, invalidated the nominating certificates; the petitioners in Proceeding No. 1 and the proposed intervenor Arthur Bramwell appeal, as limited by their brief, from so much of the same order and judgment as (1) declined to extend the September 21, 1993, deadline to nominate a new Republican candidate for office of Senator from the 23rd Senatorial District, (2) as denied the application of Bramwell, the newly elected Kings County Republican County Committee Chairman, for leave to intervene in the proceedings, and (3) denied the application of the petitioners in Proceeding No. 1 to substitute new counsel for the Kings County Republican County Committee.

ORDERED that the order and judgment is affirmed, without costs or disbursements.

Election Law § 2-106(4) provides that State and county committee members "shall hold office until the next election at which members of the committee are elected". On September 21, 1993, seven days after the primary at which new members were elected, the outgoing Kings and Richmond County Republican Committee Chairpersons filed two certificates purporting to nominate Robert J. DiCarlo as the candidate of the Republican Party for the office of Senator from the 23rd Senatorial District, pursuant to Election Law § 6-116 and § 6-158(6), as well as Rules of the New York Republican State Committee § 16(B). As the Supreme Court found, these outgoing party officials were "functus officio", and were without power to act upon "substantial matter[s]" such as nominations, although they had the power to carry out purely interim administrative functions (see, Matter of McDonald v. Heffernan, 300 N.Y. 488, 88 N.E.2d 722; Matter of Torchin v. Cohen, 286 N.Y. 544, 37 N.E.2d 553; Matter of Mazur v. Kelly, 170 A.D.2d 1037, 566 N.Y.S.2d 180; Matter of Bauman v. Fusco, 21 A.D.2d 470, 251 N.Y.S.2d 166). The nominating certificates filed by them were therefore properly ruled to be invalid.

New York State's statutory scheme requires that a certificate of a party nomination for an office to be filled at the time of a general election must be filed after the fall primary election, but not later than seven days after that election (see, Election Law § 6-158[6]; see also, Election Law § 6-116, Election Law § 2-112; Rules of the New York Republican State Committee § 16[B], and the failure to file a certificate within the statutory time frame constitutes "a fatal defect" (see, Election Law § 1-106[2]. The courts are normally without discretionary power to excuse such a defect, and there are no extraordinary or exigent circumstances present here that might justify judicial intervention (see, Matter of Hurd v. Stout, 60 N.Y.2d 787, 469 N.Y.S.2d 698, 457 N.E.2d 805; Matter of Gammerman v. Board of Elections of the City of N.Y., 57 N.Y.2d 888, 456 N.Y.S.2d 48, 442 N.E.2d 446; Matter of Carr v. New York State Bd. of Elections, 40 N.Y.2d 556, 388 N.Y.S.2d 87, 356 N.E.2d 713; Matter of Hicks v. Egan, 166 A.D.2d 735, 561 N.Y.S.2d 485; cf., Matter of Berg v. Cuomo, 85 Misc.2d 925, 381 N.Y.S.2d 791). We note that the evidence adduced at trial was unrefuted that, when requested to do so, the Board of Elections expedited its canvasses, and could have certified the newly elected committee members within approximately three days. As the Supreme Court observed, although the seven-day deadline was difficult to meet, it was not impossible. Apparently the rival factions within the party simply refused to act with the requisite dispatch out of fear that the other side would gain control.

We have considered the parties' remaining contentions and find them to be without merit.

MILLER, SANTUCCI and JOY, JJ., concur.

BALLETTA, Justice Presiding, dissents in part and votes to modify the order and judgment so as to declare valid the two certificates nominating Robert J. DiCarlo filed in the office of the Board of Elections on September 21, 1993, and to affirm the order and judgment as so modified, with a memorandum in which COPERTINO, J., concurs.

A scheduling anomaly resulted from the fact that in recent years the Republican Party of Kings County switched its election of committeepersons from even- to odd-numbered years, giving rise to acute time-problems--clearly not anticipated by either the Legislature or the Republican party--when a vacancy in a public office occurred in an odd-numbered year in which county committee members were also being elected. As interpreted by the majority, the outgoing county chairpersons were without power to make the nomination....