Cartier, Hogan, Sullivan, Bernstein & Auerbach, P. C., Patchogue (Kenneth Auerbach of counsel), for petitioner.
Jaspan Schlesinger Hoffman, L. L. P., Garden City (Steven Schlesinger of counsel), for Thomas P. DiNapoli and others, respondents.
Alfred F. Samenga, County Attorney, Mineola (Gregory Hensas of counsel), for Board of Elections of County of Nassau and others, respondents.
Thomas P. Phelan, J.
Petitioner Bonnie Green (Green) seeks to remove respondent
Thomas P. DiNapoli (DiNapoli) as the Independence Party candidate for Nassau County Executive alleging multiple grounds under the Election Law.
Whether the failure of respondent Board of Elections (Board) to endorse the day, hour and minute on DiNapoli's certificate of acceptance of designation constitutes a fatal defect of filing is the threshold issue.
Election Law § 1-106 (2) provides that " The failure to file any ... certificate relating to the designation ... of a candidate for ... public office or to the acceptance ... of such designation ... within the time prescribed by the provisions of this chapter shall be a fatal defect."
Election Law § 6-144 provides that such certificates shall be filed in the office of the Board of Elections of the subject county and further provides that " [a]ll such ... certificates shall at the time of filing thereof be endorsed by such officer or board with the day, hour and minute of such filing."
Without dispute, DiNapoli's time to file the required certificate of acceptance expired at 5:00 P.M . on July 16, 2001 and no certificate endorsed by the Board with the day, hour and minute exists.
Green contends that regardless of whether DiNapoli's certificate of acceptance was delivered to and in the possession of the Board in a timely fashion, the absence of the endorsement delineated by Election Law § 6-144 constitutes a ...