The opinion of the court was delivered by: John C. Egan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Plaintiffs/petitioners, Michael Sellers and Alexander MacKay (petitioners), commenced this proceeding by Order to Show Cause, seeking a preliminary injunction, 1) enjoining the defendants/respondents Schoharie County Board of Elections, Lewis L. Wilson and Clifford C. Hay (hereinafter "the County respondents) from certifying the results of the November 4, 2008 election in the Village of Cobleskill, New York for the position of Trustee as to the defendant/respondent Robert Lapietra (Mr. Lapietra); 2) declaring that Mr. Lapietra is not a resident of the Village of Cobleskill for purposes of the New York State Public Officer's Law §3(1) and §30*fn1; 3) declaring that Mr. Lapietra is not qualified to serve as Trustee in the Village of Cobleskill; and 4) declaring that a vacancy exists in that position.
Petitioners assert that on November 4, 2008, Mr. Lapietra was a candidate for office on the ballot for one of two open seats for the position of Village Trustee in the Village of Cobleskill. As a result of the general election, Mr. Lapietra was elected into one of the open seats for Village Trustee. Yet, petitioners argue, Mr. Lapietra was not a resident of the Village of Cobleskill before, on or after November 4, 2008, and is, therefore, not eligible to serve as a Village Trustee.
The respondents oppose the relief sought by petitioners. Furthermore, in his answer, Mr. Lapietra claims that he has "at all times relevant" been a resident of the Village of Cobleskill. On December 8, 2008 and December 16, 2008, a hearing was held with respect to the petitioners' application for preliminary relief. As a preliminary matter, both the County respondents and Mr. Lapietra argue that this Court has no subject matter jurisdiction in a summary proceeding to remove a successful candidate from public office.*fn2 The Court fill first address the issue of subject matter jurisdiction.
In support of their position that this Court lacks subject matter jurisdiction, the respondents argue that, since the Village of Cobleskill's elections are handled by the Schoharie County Board of Elections, Election Law §16-100 applies to this case.*fn3 The respondents point to Delgado v. Sunderland 97 NY2d 420, 423 (2002) for the proposition that any action Supreme Court takes with respect to a general election challenge "must find authorization and support in the express provisions of the [Election Law] statute".*fn4 The respondents assert that this Court has no jurisdiction in a summary proceeding to remove a successful candidate from office or to order a new election. The respondents contend that, where, as here, the successful candidate has assumed office and there is a disputed issue of fact (Mr. Lapietra's residence) the relief sought by petitioners could only be granted in a plenary action, i.e quo warrantor.
In opposition to the respondents' affirmative defense of lack of subject matter jurisdiction, by correspondence dated December 16, 2008, the petitioners assert that this action was properly commenced as a declaratory judgment and Article 78 proceeding. Petitioners argue that this proceeding was not commenced pursuant to Article 16 of the Election Law, but pursuant to the Public Officer's Law, the purpose of which is preserve the integrity of governance in the Village of Cobleskill. Petitioners cite to Marino v. Board of Election, 199 AD2d 505 (2nd Dept. 1993). In Marino, a "purported proceeding" was commenced pursuant to the Election Law seeking a determination that a candidate was ineligible to serve as a member of the Yonkers City Council based on the allegation that he was not a resident of the appropriate district. The Appellate Division, Second Department held that a plenary action in the nature of quo warrantor was not necessary since the office was not yet occupied. Accordingly, the Court in Marino held that the issue could be addressed in an action for a declaratory judgment.*fn5
At the outset, I note that this Court has no inherent power to expand judicial review of election matters beyond that provided by statute. It has only such powers as are given by statute. Corrigan v. Board of Elections, 38 AD2d 825 (2nd Dept.1972). Any action the Court takes with respect to a general election challenge "must find authorization and support in the express provisions of the [Election Law] statute" Delgado v. Sunderland 97 NY2d 420, 423 (2002)(citing Schieffelin v. Komfort, 212 NY 520, 535 (1914)).
The Public Officers Law and the Election Law address the situation at hand. As a matter of basic qualification, one must be a resident of a town to hold office therein. Public Officers Law §3(1). Prospective candidates for public office must themselves meet the basic qualifications for that office. Election Law §6-122 provides:
A person shall not be designated or nominated for public office or party position who (1) is not a citizen of the State of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications thereof....
The Election Law specifically recognizes the possibility that questions may arise as to the basic qualifications of a candidate for public office by providing an immediate, pre-election process to challenge a candidate's qualifications.
Election Law §16-102(1) provides that
The nomination or designation of any candidate for any public office or party position or any independent nomination, or the holding of an uncontested primary election, by reason of a petition for an opportunity to ballot having been filed, or the election of any person to any party position may be contested in a proceeding instituted in the supreme court by any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections, as provided in this chapter, except that the chairman of a party committee may not bring a proceeding with respect to a designation or the holding of an otherwise uncontested primary.
This action to remove a candidate from the ballot based upon allegations that the candidate does not meet the basic requirements to hold office must be commenced in accordance with the requirements of Election Law §16-102. Scaringe v. Ackerman,119 AD2d 327 (3d Dept. 1986). The Election Law imposes a very short time period in which to commence such a proceeding - it must be "instituted within fourteen days after the last day to file [a] petition, or within three business days after * * * a determination of invalidity". Election Law §16-102(2).*fn6 The reason for this short time limit is obvious - to provide for an expedited ruling so that, if the challenge is successful, a replacement candidate can be placed on the ballot. The Affidavit of Michael Sellers submitted in support of the petition contains a copy of the Certificate of Mr. Lapietra's Acceptance of the designation/nomination as a candidate for the office of Village Trustee, together with the "Independent Nominating Petitions", alleged to have been filed with the Schoharie County Board of Elections on August 19, 2008. There is no evidence in this record that at any time prior to the November 4, 2008 General Election, petitioners commenced a pre-election action in this Court challenging Mr. Lapietra's residency, as provided for by Election Law §6-154 and §16-102, and that failure to act is a fatal defect. "Since Election Law article 6 contains the provisions which govern the nomination and designation of candidates for election to public office (see, Election Law §6-100), and since Election Law §16-102(1) authorizes the court to entertain proceedings to contest the nomination or designation of any candidate for public office, it follows that any proceeding to remove a candidate from the ballot for an alleged failure to comply with a requirement of Election Law article 6 must be brought under Election Law § 16-102(1) ...