Amelio v. D'Apice

97 A.D.2d 492, 469 N.Y.S.2d 413, 1983 N.Y. App. Div. LEXIS 20083

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1983
• Status: Published

Opinion

In a proceeding to invalidate petitions designating respondent Frank A. Vetere et al. as candidates of the Harrison Independent Party in the election to be held on November 8, 1983, the appeal is from a judgment of the Supreme Court, Westchester County (Kelly, J.), entered October 13,1983, which dismissed the proceeding. Judgment reversed, on the law, without costs or disbursements, proceeding reinstated and matter remitted to the Supreme Court, Westchester County, for a de novo hearing in accordance herewith, to be held on Monday, October 24, 1983, at 9:30 a.m. in Special Term, Part 3A. Special Term erred in refusing to accept the amended petition, which raised an issue of fact as to the validity of the signature of the subscribing witness to pages 27 and 30 of the nominating petition. Under the unique circumstances of this case, respondents shall also be permitted to amend their answers, should they be so advised (cf. Matter of Krueger v Richards, 59 NY2d 680). If the respondents amend their answers and in doing so challenge the invalidation by the board of elections of certain signatures on the petition, then the hearing shall encompass those factual issues as well. Mollen, P. J., Titone, Lazer and Rubin, JJ., concur.