Maresca v. Albanese

153 A.D.2d 719, 544 N.Y.S.2d 685, 1989 N.Y. App. Div. LEXIS 11019

Opinion

In a proceeding to invalidate a petition designating Salvatore Albanese as a candidate in the Liberal Party primary election to be held on September 12, 1989, for the public office of Member of the City Council of the City of New York from the 31st Councilmanic District, the appeal, as limited by the appellant’s brief, is from so much of a judgment of the Supreme Court, Kings County (Dowd, J.), dated August 17, 1989, as directed the Board of Elections of the City of New York to afford an opportunity to ballot.

Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the application for an opportunity to ballot is denied.

In this matter the petition purporting to designate Salvatore Albanese as the Liberal candidate for the public office of Member of the New York City Council for the 31st Council-manic District was invalidated by the New York City Board of Elections because the subscribing witness of 15 of the requisite 30 signatures did not reside in the district. Inasmuch as the deficiency in the petition was not a mere technical challenge, there was no equitable basis for authorizing a write-in primary and the Supreme Court improvidently exercised its discretion in so doing (see, Matter of Quaglia v Lefever, 143 AD2d 238; Matter of Santoro v Kujawa, 133 AD2d 534; cf., Matter of Schwarzfeld v D’Apice, 133 AD2d 203, 204). Kunzeman, J. P., Eiber, Spatt, Harwood and Balletta, JJ., concur.