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Futia v. Westchester County Board of Elections

Supreme Court of New York, Second Department

September 25, 2013

Anthony Futia, Jr., et al., appellants,
v.
Westchester County Board of Elections, et al., respondents. Index No. 4497/12

WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

DECISION & ORDER

In a hybrid action, inter alia, for a judgment declaring that John Stipo is the elected "Town Committeeman, Republican Party, District #5, Town of North Castle, Westchester County, State of New York, " and proceeding pursuant to Election Law article 16, the plaintiffs/petitioners appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Westchester County (Tolbert, J.), dated October 26, 2012, which, among other things, denied the declaratory relief requested with respect to John Stipo.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that John Stipo is not the elected Town Committeeman, Republican Party, District #5, Town of North Castle, Westchester County, State of New York.

The Supreme Court properly denied the plaintiffs/petitioners' request for a judgment declaring that John Stipo is the elected "Town Committeeman, Republican Party, District #5, Town of North Castle, Westchester County, State of New York." Under the circumstances of this case, Stipo's designating petition was a nullity (see Matter of Fischer v NYS Bd. of Elections, 98 A.D.3d 1067, 1068). Although the plaintiffs/petitioners contend that the defendants/respondents violated their rights to, inter alia, due process and equal protection, those contentions were presented to the Supreme Court in a wholly conclusory manner (see Huntington Yacht Club v Incorporated Vil. of Huntington Bay, 1 A.D.3d 480, 482), and are without merit (see Matter of Walton v New York State Dept. of Correctional Servs., 13 N.Y.3d 475, 494). Moreover, to the extent that the plaintiffs/petitioners are challenging the constitutionality of Election Law § 2-106(3), nothing in the record indicates that they provided the requisite notice to the Attorney General (see Executive Law § 71[3]; McGee v Korman, 70 N.Y.2d 225, 231-232).

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that John Stipo is not the elected Town Committeeman, Republican Party, District #5, Town of North Castle, Westchester County, State of New York (see Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

MASTRO, J.P., HALL, LOTT and SGROI, JJ., concur.


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