Frisa v. Irace

297 A.D.2d 393, 746 N.Y.2d 845, 746 N.Y.S.2d 845, 2002 N.Y. App. Div. LEXIS 8145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 2002
• Status: Published

Opinion

The sole issue before us is whether the instant proceeding was properly commenced. The parties do not argue the merits.

The petition was not verified as mandated by Election Law § 16-116. The requirement is jurisdictional in nature and cannot be cured by amendment (see Matter of Goodman v Hayduk, 45 NY2d 804).

We further note that our determination will not disenfranchise any voters (cf. Matter of Rose v Smith, 220 AD2d 922). Smith, J.P., Goldstein, Mastro and Rivera, JJ., concur.

Friedmann, J., dissents and votes to affirm the final order insofar as appealed from, with the following memorandum: I would affirm the final order insofar as appealed from. It is true that Election Law § 16-116 requires that a proceeding commenced under the Election Law must be by verified petition and that this requirement has been strictly adhered to and deemed jurisdictional in nature (see, Matter of Goodman v Hayduk, 45 NY2d 804, 806; Vaughn v Withers, 153 AD2d 712). Under the particular circumstances of this case, however, a different result should obtain.

Contrary to the appellants’ contention, that branch of the petition which was to invalidate his designating petition as a candidate for the Republican Party was properly verified. The petitioner duly swore to the contents of the petition, and although there was no jurat, it was acknowledged by the notary/ attorney before whom the petitioner took his oath and offered his sworn statement, which obviated any prejudice to the appellant or possibility of fraud (see, Matter of Rose v Smith, 220 AD2d 922, 923). In addition it is the petitioner, not the appellant, who would be prejudiced by dismissal of this proceeding, because as a result a candidate with an improper designating petition would be allowed to remain on the ballot.