ruling on mcgrath's democratic petitions

8/9/2019 Ruling on McGrath's Democratic petitions

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STATE OF NEW YORKSUPREME COURT COUNTY OF ALBANYIn the Matter of the Application ofADAM L. ODETT and MARY.DASNO, as citizen objectorsandKENNETH BLANKENBUSH, as a candidate aggrieved,

Petitioners,-against

lames A. Walsh, Douglas A. Keliner, Evelyn 3. Aquila, andGregory P. Peterson, COMMISSIONERS CONSTITU11NGTHE NEW YORK STATE BOARD OP ELECTIONS,andBRIAN S. MCGRATH, Candidate,Respondents.

Fo r an Order Pursuant to Section 16-100, 16-102 and 16-116 ofthe Election Law, Declaring Invalid the Designating PetitionsPurporting to Designate the Respondent-Candidate in theDemocratic Party Primary Election to be held S,tember 14,2010, and to Restrain the said Board of Elections from Placingthe Name of said Candidate Upon the Official Ballots of SaidPrimary Election.

All Purpose TermHon. Henry F. Zwack, Acting Supreme Court Justice PresidingRi!: 01-10-101114 IndexNo. 4979-10

Appearances: James B. Walsh, Esq.Attorney For Petitioners Odett, Dasno, Blankenbush514 State StreetSchenectady, New York 12305


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Kimberly A. Calvin, Esq.Attorney for Respondent New York State Board of Elections40 Steuben StreetAlbany, New York 12207

Kathleen OKeefe, Esq.Attorneys For Respondent McGrath65 Anthony DriveEariton, New York 1205 8

Marty I. Rosenbaum, Esq.Attorneys for Respondent McGrath (of counsel)1971 WesternAvenue,#105Albany, New York 12203

DECISION/ORDERZwack, 3,:

In this Election Law proceeding, respondent McGrath has moved to dismiss andpetitioners cross-moved to file an amended petition. Oral argument and documentaryevidence was received on August 6, 2010.

First, regarding McGraths motion to dismiss, the Court denies the motion. Theoriginal petition is no t subject to dismissal due to typographical error. The petition listswronghome address for candidate, however this is aminor, de minimis typographical error. This errorwas not ajurisdietional defect, respondents were not misled by the error and no substantial rightofrespondentswas prejudiced. Therefore the Court denies the motion to dismiss (CPLR 2001,

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3026; Tag!taft it t v Welter, 1 NY3d 605 [2004]; Great Eastern Mall Inc. v Condon, 36 NY2d544 [19751).

The Court finds that the cross-motion is moot therefore and does not reach petitionerscross-motion to amend in light of the above determination.

Regarding the issue of whether the designation of the public office was sufficient, theCourt finds that it was insufficient. It failed to state Member ofAssembly and provided onlya geographic designation. As listed it is insufficient because judicial convention delegates andstate party committeemen also run in this assembly district. The name of the public office isno t clearly set forth and as listed, there is a reasonable probability of confhsion in light of themultiple titles ofpublic office elected fromthe assembly district (Hayes vNew YorkState BoardofElections, 32 AD3d 660 [3d Dept 2006]; Bliss v Nobles 297 A02d 457 [3d Dept 2002];Dunlea v New York State Board of Elections, 275 A.D.2d 589 [3 Dept 2000]). Thedesignating petition at issue is therefore invalidated.

Accordingly, it is

ORDERED that the motion to dismiss is denied, the cross-motion is not reached asmoot; and it is further

ORDERED that the petition is granted and the designating petition at issue isinvalidated.

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This constitutes the Decision and Order of the Court. This Decision and Order isreturned to the attorneys for the petitioners. All o ther papers are delive red to the SupremeCourt Clerk for transmission to the County Clerk. The signing of this Decision and Ordershall not constitute entry or filing under CPLR 2220. Counsel is no t relieved from theapplicable prov isions of this rule with regard to filing, entry and Notice ofEntry .

Dated: August 2010Troy,NewYork

Henry F. ZwackActing Supreme Court Justice

Papers Considered:1. Order to Show Cause dated July 27, 2010; Verified Petition dated July 27,2010, Amended Verif ied Petition dated July 28, 2010;2. Verified Answer dated July 30, 2010;3, Verified Answer dated July 30, 2010; Notice dated July 30, 2010;Memorandum ofLaw dated July 30,2010; Notice ofMotion dated August 1,2010; Affirmation in Support ofMotion to Dismiss ofMarty I. Rosenbaum,Esq. dated August 1, 2010; Memorandum of Law dated Augus t 1, 2010;together with Attachments;4. Memorandum of Law dated August 2, 2010; toge ther with Attachments;5. Notice of Cross-Motion dated August 4 2010; Affirmation of Michael It.Cuevas, Esq. dated August 4, 2010; togethe r with Attachments; Memorandumo. Law dated August 4,2010;6. Respondents Exhibits A though E.

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ruling on mcgrath's democratic petitions

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