Gagliardo v. Colascione

153 A.D.2d 710, 544 N.Y.S.2d 877, 1989 N.Y. App. Div. LEXIS 11061

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 23, 1989
• Status: Published

Opinion

In a proceeding to invalidate a petition designating Lewis Colascione and Robert Flotz as candidates in the Republican Party primary election to be held on September, 12, 1989, for the party position of Member of the Republican Party County Committee in the 95th Election District in the Town of Babylon, the appeal is from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered August 18, 1989, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The Suffolk County Board of Elections was not named as a party to this proceeding, and only one of the two Election Commissioners who comprise the Board was named as a party. The named Commissioner does not have the authority to unilaterally act for the Board, since, by statute, all Board actions require a majority vote of the Commissioners (see, Election Law § 3-212; Matter of Conlin v Kisiel, 35 AD2d 423, affd 28 NY2d 700; Matter of Buhlmann v Wilson, 96 Misc 2d 616). The proceeding therefore was properly dismissed due to the petitioner’s failure to join as a necessary party the remaining Commissioner or the Board of Elections (see, CPLR 1001 [a]; Matter of Oberle v Caracappa, 133 AD2d 241; Matter of Curdo v Wolf, 133 AD2d 188; Matter of Crowe [Board of Elections], 263 App Div 935).

In light of this determination, we need not reach the remaining issues raised. Lawrence, J. P., Rubin, Sullivan, Kooper and Rosenblatt, JJ., concur.