De Masi v. D'Apice

97 A.D.2d 526, 468 N.Y.S.2d 33, 1983 N.Y. App. Div. LEXIS 20126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1983
• Status: Published

Opinion

In a proceeding to validate a petition nominating the petitioner as a candidate of the Sound Independent Party in the election to be held on November 8, 1983, for the office of County Legislator, County of Westchester, 7th District, Stephen Mawn and the board of elections separately appeal from a judgment of the Supreme Court, Westchester County (Stolarik, J.), dated October 17, 1983, which granted the petition. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed. The board of elections is hereby directed to remove petitioner’s name from the appropriate ballot. The designation of the “Town or City” in the statement of a subscribing witness to a nominating petition “is a matter of the legislatively mandated content of the petition, i.e., a matter of substance and not of form” (Matter of Frame v Board of Elections, 57 NY2d 741, 742; see Election Law, § 6-140, subd 1). The failure to include the prescribed information, or an inaccurate recording thereof, is fatal (Matter of Frome v Board of Elections, supra). Consequently, the aggregate number of 37 signatures on sheet numbers 69, 72 and 77 and 13 signatures on sheet number 84, ruled valid by Special Term, must be invalidated. Absent these signatures, the nominating petition does not contain the requisite number of signatures needed for petitioner’s name to be placed upon the ballot. In view of the foregoing, we do not address the other issues presented on this appeal. Mollen, P. J., Titone, Lazer and Rubin, JJ., concur.