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Tabacco v. Vitucci

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


February 23, 2009

IN THE MATTER OF JOHN A. TABACCO, APPELLANT,
v.
JOHN W. VITUCCI, ET AL., RESPONDENTS.

In a proceeding pursuant to Election Law § 16-102, inter alia, to validate independent nominating petitions nominating John A. Tabacco as the candidate of the No Tax Party in a special election to be held on February 24, 2009, for the public office of Member of the New York City Council, 49th Council District, the petitioner appeals from a final order of the Supreme Court, Richmond County (Giacobbe, J.), dated February 20, 2009, which confirmed the report of a referee (D'Oca, R.), made after a hearing, and thereupon denied the petition, in effect, dismissed the proceeding, and directed the Board of Elections in the City of New York not to place his name on the appropriate ballot.

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 Official Reports.

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, HOWARD MILLER and RANDALL T. ENG, JJ.

(Index No. 80054/09)

DECISION & ORDER

ORDERED that the final order is reversed, on the law, without costs or disbursements, the petition is granted, the independent nominating petitions are validated, and the Board of Elections in the City of New York is directed to place the name of John A. Tabacco on the appropriate ballot.

Under the particular facts of this case, including the initial validation of the independent nominating petitions by a committee of the Board of Elections in the City of New York (hereinafter the Board of Elections), which would result in the placement of the petitioner's name on the ballot, there was no basis for the Board of Elections to reconsider the issue of the sufficiency of the signatures (see Matter of Pataki v Hayduk, 87 Misc 2d 1095, affd 55 AD2d 861).

SPOLZINO, J.P., FLORIO, MILLER and ENG, JJ., concur.

20090223

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