DeBerry v. Marchant

196 A.D.2d 608, 601 N.Y.S.2d 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 18, 1993
• Status: Published

Opinion

In a proceeding to invalidate a petition designating Garth Marchant as a candidate in a primary election to be held on September 14, 1993, for nomination of the Democratic Party as its candidate for the public office of Member of the New York City Council from the 27th Council District, the appeal is from a judgment of the Supreme Court, Queens County (Eng, J.), dated August 13, 1993, which dismissed the proceeding.

Ordered that the judgment is reversed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

The record indicates that in addition to specifications referred to in the order to show cause to invalidate, dated July 26, 1993, additional specifications were submitted by the appellant John C. DeBerry to the Supreme Court on August 6, 1993.

Thereafter, the Supreme Court appointed a Special Referee to hear and report "on the specific objections raised by [the appellant]”. The record indicates that the Referee only reviewed the additional specifications and determined that Garth Marchant did not have a sufficient number of signatures to validate his designating petition. However, on August 13, 1993, the Supreme Court held that the additional specifications submitted on August 6, 1993, should not have been considered by the Referee. Accordingly, the Supreme Court disaffirmed the Referee’s report and dismissed the proceeding to invalidate the designating petitions.

Under the circumstances of this case, the matter is remitted for a review of all the specifications raised by the appellant and for a de novo determination thereon. Mangano, P. J., Thompson, Lawrence and Pizzuto, JJ., concur.