McGuire v. Gamache

Appellate Division of the Supreme Court of New York

McGuire v. Gamache

22 A.D.3d 614, 804 N.Y.S.2d 333

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 14, 2005

StatusPublished

Cited by4 cases

This text of 22 A.D.3d 614 (McGuire v. Gamache) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGuire v. Gamache, 22 A.D.3d 614, 804 N.Y.S.2d 333 (N.Y. Ct. App. 2005).

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Opinion

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition nominating Alison E. MacAvery as a candidate of the Senior Citizens Party for the public office of Member, Dutchess County Legislature, District 16, in a general election to be held on November 8, 2005, the appeal is from a final order of the Supreme Court, Dutchess County (Brands, J.), dated September 22, 2005, which granted the petition, invalidated the nominating petition, and directed that the name of Alison E. MacAvery be removed from the Senior Citizens Party ballot.

Ordered that the final order is affirmed, without costs or disbursements.

It is undisputed that the petitioner is a nominated candidate of the Republican Party and the Conservative Party in the general election for the office in question. Contrary to the appellant’s contention, the Supreme Court correctly determined that the petitioner had standing as an aggrieved candidate to bring this proceeding (see Matter of Maher v Board of Elections of County of Nassau, 297 AD2d 396, 397 [2002]; Matter of Liepshutz v Palmateer, 112 AD2d 1098 [1985], affd 65 NY2d 963 [1985]; Matter of Martin v Tutunjian, 89 AD2d 1034 [1982]).

Moreover, the appellant failed to follow the statutorily-prescribed form for the “STATEMENT OF WITNESS” set forth in Election Law § 6-140 (1) (b) to the extent that the subscrib[615]*615ing witness redacted the wording “and I am also duly qualified to sign the petition” on the nominating petition. The unexplained alteration of the statutorily-prescribed statement was fatal, as the omission of part of the required declaration was a substantive departure from the mandates of the statute and not a mere error in form (see Matter of Jonas v Velez, 65 NY2d 954, 955 [1985]; Matter of Alamo v Black, 51 NY2d 716, 717 [1980]; Matter of Klemann v Acito, 45 NY2d 796 [1978]; Matter of Sheldon v Sperber, 45 NY2d 788 [1978]; Matter of Cairo v Harwood, 42 NY2d 1098, 1099 [1977]; Matter of Nobles v Grant, 41 NY2d 1048 [1977]; cf. Matter of Roman v Sharpe, 42 NY2d 986, 987 [1977]). Adams, J.P., Cozier, Crane and Mastro, JJ., concur.

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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition nominating Alison E. MacAvery as a candidate of the Senior Citizens Party for the public office of Member, Dutchess County Legislature, District 16, in a general election to be held on November 8, 2005, the appeal is from a final order of the Supreme Court, Dutchess County (Brands, J.), dated September 22, 2005, which granted the petition, invalidated the nominating petition, and directed that the name of Alison E. MacAvery be removed from the Senior Citizens Party ballot.

Ordered that the final order is affirmed, without costs or disbursements.

It is undisputed that the petitioner is a nominated candidate of the Republican Party and the Conservative Party in the general election for the office in question. Contrary to the appellant’s contention, the Supreme Court correctly determined that the petitioner had standing as an aggrieved candidate to bring this proceeding (see Matter of Maher v Board of Elections of County of Nassau, 297 AD2d 396, 397 [2002]; Matter of Liepshutz v Palmateer, 112 AD2d 1098 [1985], affd 65 NY2d 963 [1985]; Matter of Martin v Tutunjian, 89 AD2d 1034 [1982]).

Moreover, the appellant failed to follow the statutorily-prescribed form for the “STATEMENT OF WITNESS” set forth in Election Law § 6-140 (1) (b) to the extent that the subscrib[615]*615ing witness redacted the wording “and I am also duly qualified to sign the petition” on the nominating petition. The unexplained alteration of the statutorily-prescribed statement was fatal, as the omission of part of the required declaration was a substantive departure from the mandates of the statute and not a mere error in form (see Matter of Jonas v Velez, 65 NY2d 954, 955 [1985]; Matter of Alamo v Black, 51 NY2d 716, 717 [1980]; Matter of Klemann v Acito, 45 NY2d 796 [1978]; Matter of Sheldon v Sperber, 45 NY2d 788 [1978]; Matter of Cairo v Harwood, 42 NY2d 1098, 1099 [1977]; Matter of Nobles v Grant, 41 NY2d 1048 [1977]; cf. Matter of Roman v Sharpe, 42 NY2d 986, 987 [1977]). Adams, J.P., Cozier, Crane and Mastro, JJ., concur.

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22 A.D.3d 614, 804 N.Y.S.2d 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguire-v-gamache-nyappdiv-2005.

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