Carey v. Chiavaroli

97 A.D.2d 981, 468 N.Y.S.2d 781, 1983 N.Y. App. Div. LEXIS 20832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1983
• Status: Published

Opinion

Order unanimously affirmed, without costs. Memorandum: Subdivision 3 of section 6-138 "of the Election Law requires that the party name selected by an independent body making a nomination shall not include the name or part of the name of that stated on a previously filed independent nominating petition. It also prohibits the use of any name which would “create the possibility of confusion”. The manifest purpose of this statute is “ ‘to prevent all possibility of confusion in the minds of voters in connection with the election machinery.’ ” (Matter of Ottinger v Lomenzo, 35 AD2d 747, affd 27 NY2d 754; Matter of McCarthy v Lawley, 35 AD2d 126, affd 27 NY2d 754.) The party name selected by respondents is “Independence of Henrietta”. A previously filed independent nominating petition bears the name “Henrietta Party”. Therefore, respondents’ party name selection is a violation of the express prohibition against the inclusion of part of the name of a previously filed independent nominating petition. The similarity of these party names is also very likely to result in visual confusion, “particularly where one in a voting booth makes a rapid choice of party and candidate.” (Matter of McCarthy v Lawley, supra, p 129.) This resulting confusion is violative of the avowed intent of subdivision 3 of section 6-138 of the Election Law. Under the circumstances presented here, there is no statutory authority to permit respondents to substitute another name (Matter of McCarthy v Lawley, 35 AD2d 126, 129, supra; Matter of Donnellon v Heffernan, 193 Misc 97, 98, affd 274 App Div 880, affd 298 NY 656). (Appeal from order of Monroe Supreme Court, Cicoria, J. — Election Law.) Present — Hancock, Jr., J. P., Doerr, Boomer, Moule and Schnepp, JJ. (Order entered Oct. 18, 1983.)