Bova v. Board of Elections

196 A.D.2d 605, 601 N.Y.S.2d 192

Opinion

In a proceeding to validate a petition designating Joseph Bova as a candidate in a primary election to be held on September 14, 1993, for the nomination of the Democratic Party as its candidate for the public office of New York State Senator in the 23rd Senatorial District, the appeal is from a judgment of the Supreme Court, Kings County (Garry, J.), dated August 16, 1993, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

New York Constitution, article III, § 7 states that "[i]f a member of the legislature be * * * appointed to any office * * * his or her acceptance thereof shall vacate his or her seat in the legislature”. A vacancy was created for the public office of New York State Senator in the 23rd Senatorial District when New York State Senator Christopher J. Mega accepted an appointment as Judge of the Court of Claims on July 15, 1993. On the same date, which was also the last date for circulating designating petitions for the September 14, 1993 primary election, a designating petition was filed with the Board of Elections purportedly naming the petitioner as a Democratic candidate for State Senator in the 23rd Senatorial District. Since Senator Mega did not vacate the office of Senator within the meaning of the State Constitution at least seven days prior to the last day for circulating designating petitions, the court properly determined that the petitioner’s designating petition was invalid under Election Law § 6-116. Sullivan, J. P., Eiber, O’Brien and Joy, JJ., concur.