Cola v. D'Apice

Appellate Division of the Supreme Court of New York

Cola v. D'Apice

112 A.D.2d 1060, 493 N.Y.S.2d 173, 1985 N.Y. App. Div. LEXIS 52263

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 21, 1985

StatusPublished

Cited by3 cases

This text of 112 A.D.2d 1060 (Cola v. D'Apice) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cola v. D'Apice, 112 A.D.2d 1060, 493 N.Y.S.2d 173, 1985 N.Y. App. Div. LEXIS 52263 (N.Y. Ct. App. 1985).

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Opinion

In a proceeding to validate petitions designating petitioner Charles A. Cola as a candidate in the Democratic Party primary election to be held on September 10, 1985 for the public office of County Legislator for the 15th Legislative District of the City of Yonkers, the appeal is from a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered August 2, 1985 which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

Petitioner commenced this proceeding after the Board of Elections of the County of Westchester invalidated his petition upon, among other grounds, the finding that 290 signatures on the petition were witnessed by a subscribing witness who resided outside of the 15th Legislative District. Petitioner alleges that this occurred because he obtained a representation from the Democratic Commissioner of the Board of Elections, Marion B. Oldi, that a subscribing witness need only be an enrolled Democratic voter in the City of Yonkers. Special Term found petitioner’s contentions unpersuasive, and dismissed the petition.

We affirm.

Election Law § 6-132 (2) provides that the subscribing witness to a designating petition be "a resident of the political subdivision in which the office or position is to be voted for”. This provision "is a substantive legislative requirement which may not be relaxed by the courts” (Matter of Ryan v Board of Elections, 53 NY2d 515, 516). Although petitioner received incorrect information from the Board of Elections, this does [1061]*1061not excuse his failure to comply with the statutory mandates (see, Matter of Smith v Mahoney, 60 NY2d 596).

Petitioner’s argument that a legislative district is not a "political subdivision” within the meaning of the statute is without merit (see, Matter of Ryan v Board of Elections, 53 NY2d 515, supra [City Council district falls within ambit of statute]). Lazer, J. P., Bracken, Niehoff and Eiber, JJ., concur.

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In a proceeding to validate petitions designating petitioner Charles A. Cola as a candidate in the Democratic Party primary election to be held on September 10, 1985 for the public office of County Legislator for the 15th Legislative District of the City of Yonkers, the appeal is from a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered August 2, 1985 which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

Petitioner commenced this proceeding after the Board of Elections of the County of Westchester invalidated his petition upon, among other grounds, the finding that 290 signatures on the petition were witnessed by a subscribing witness who resided outside of the 15th Legislative District. Petitioner alleges that this occurred because he obtained a representation from the Democratic Commissioner of the Board of Elections, Marion B. Oldi, that a subscribing witness need only be an enrolled Democratic voter in the City of Yonkers. Special Term found petitioner’s contentions unpersuasive, and dismissed the petition.

We affirm.

Election Law § 6-132 (2) provides that the subscribing witness to a designating petition be "a resident of the political subdivision in which the office or position is to be voted for”. This provision "is a substantive legislative requirement which may not be relaxed by the courts” (Matter of Ryan v Board of Elections, 53 NY2d 515, 516). Although petitioner received incorrect information from the Board of Elections, this does [1061]*1061not excuse his failure to comply with the statutory mandates (see, Matter of Smith v Mahoney, 60 NY2d 596).

Petitioner’s argument that a legislative district is not a "political subdivision” within the meaning of the statute is without merit (see, Matter of Ryan v Board of Elections, 53 NY2d 515, supra [City Council district falls within ambit of statute]). Lazer, J. P., Bracken, Niehoff and Eiber, JJ., concur.

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Bluebook (online)

112 A.D.2d 1060, 493 N.Y.S.2d 173, 1985 N.Y. App. Div. LEXIS 52263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cola-v-dapice-nyappdiv-1985.

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