- August 22, 2017
REINALDO E. RIVERA, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN
BETSY BARROS VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
proceeding pursuant to Election Law § 16-102, inter
alia, to validate a petition designating Michele Giordano as
a candidate in a primary election to be held on September 12,
2017, for the nomination of the Republican Party as its
candidate for the public office of Receiver of Taxes of the
Town/Village of Harrison, the petitioner appeals, as limited
by his brief, (1) from so much of a final order of the
Supreme Court, Westchester County (Lubell, J.), dated August
7, 2017, as denied the petition, inter alia, to validate the
designating petition and, in effect, dismissed the
proceeding, and (2) from so much of an order of the same
court dated August 15, 2017, as, upon reargument, adhered to
its prior determination denying the petition, inter alia, to
validate the designating petition and, in effect, dismissing
the proceeding, and Vito L. Faga, Jr., cross-appeals from so
much of the final order dated August 7, 2017, as denied, as
academic, his motion to dismiss the petition, inter alia, to
validate the designating petition.
ED that the cross appeal from the final order dated August 7,
2017, is dismissed, without costs or disbursements, as Vito
L. Faga, Jr., is not aggrieved thereby; and it is further,
ORDERED that the appeal from the order dated August 15, 2017,
is dismissed as academic, without costs or disbursements, in
light of the determination of the appeal from the final order
dated August 7, 2017; and it is further, ORDERED that the
final order dated August 7, 2017, is reversed insofar as
appealed from, on the law, without costs or disbursements, so
much of the order dated August 15, 2017, as, upon reargument,
adhered to the prior determination denying the petition,
inter alia, to validate the designating petition and, in
effect, dismissing the proceeding is vacated, the petition is
granted, and the matter is remitted to the Supreme Court,
Westchester County, for the entry of an amended final order
directing the Westchester County Board of Elections to place
the petitioner's name on the appropriate ballot.
petitioner filed a petition designating him as a candidate in
a primary election for the nomination of the Republican Party
as its candidate for the public office of Receiver of Taxes
of the Town/Village of Harrison. The designating petition
contained 377 signatures. Vito L. Faga, Jr., filed objections
and, after reviewing the objections, the Westchester County
Board of Elections (hereinafter BOE) sustained 200
objections, which left the petitioner with fewer than the 285
required signatures. Of the disputed signatures, the BOE
invalidated 124 signatures on the ground that those signers
had listed "West Harrison" or "Purchase"
as their town, rather than listing their town as Harrison.
The petitioner filed a validating petition with the Supreme
Court, Westchester County, seeking, inter alia, to reinstate
the 124 signatures which had been invalidated on that ground.
In a final order dated August 7, 2017, the Supreme Court
denied the petition and, in effect, dismissed the proceeding.
In the final order, the court also denied, as academic, a
motion by Faga to dismiss the validating petition.
candidate's designating petition must set forth "the
name of the signer, his or her residence address, town or
city (except in the city of New York, the county), and
the date when the signature is affixed" (Election Law
§ 6-130 [emphasis added]; see Election Law
§ 6-140[a]). Pursuant to the Election Law,
"residence" shall be deemed to mean "that
place where a person maintains a fixed, permanent and
principal home and to which he, wherever temporarily located,
always intends to return, " but does not specify the
manner in which such address shall be recorded, except that
customary abbreviations may be used (Election Law §
1-104; see Election Law § 6-134).
However, the Election Law also provides that "[a]
signature on a petition sheet shall not be deemed invalid
solely because the address provided is the post office
address of the signer provided that proof that such address
is the accepted address of such signer is provided to the
board of elections no later than three days following the
receipt of specific objections to such signature"
(Election Law § 6-134). In addition, the Election
Law specifies that a voter's registration record shall
include, inter alia, both "[t]he residence address at
which the voter claims to reside and post office address, if
not the same" and "[t]he assembly district or ward
and the election district in which such residence address is
located" (Election Law § 5-500[d], [e]).
the signers listed their post office addresses, which are the
same addresses utilized by the BOE for mailing purposes.
Further, the "walk lists" provided for the
candidates' use in canvassing contain those address
designations. The BOE asserts that its records also contain a
five-digit code identifying the town, ward, and district for
each address and that the codes for the addresses in question
indicate that, for polling purposes, the addresses at issue
lie within the Town of Harrison. The designating petition
sets forth "the signer['s]" residence
addresses, within the geographical boundaries of the Town of
Harrison. Thus, under the particular circumstances of this
case, the BOE should not have sustained the objections to the
signatures at issue (see generally Matter of Berney v
Bosworth, 87 A.D.3d 948, 949; Matter of Curley v
Zacek, 22 A.D.3d 954, 955-956).
Faga's cross appeal must be dismissed on the ground that
he is not aggrieved by the final order(see Rojas v
Paine, 125 A.D.3d 742, 744; Matter of Agam B. [Janna
W.], 121 A.D.3d 1109; Edgar S. v Roman, 115
A.D.3d 931, 931-932; Mixon v TBV, Inc., 76 A.D.3d
144, 148-149), his arguments are properly raised as an
alternative ground for affirming the final order (see
Parochial Bus Sys. v Board of Educ. of City of N.Y.,
60 N.Y.2d 539, 546). However, Faga's contentions are
the Supreme Court should have granted the petition to
validate and directed the BOE to place the ...