McLeod v. Del Toro

Appellate Division of the Supreme Court of New York

McLeod v. Del Toro

112 A.D.2d 908, 493 N.Y.S.2d 459, 1985 N.Y. App. Div. LEXIS 52122

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

DecidedAugust 30, 1985

StatusPublished

This text of 112 A.D.2d 908 (McLeod v. Del Toro) 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.

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McLeod v. Del Toro, 112 A.D.2d 908, 493 N.Y.S.2d 459, 1985 N.Y. App. Div. LEXIS 52122 (N.Y. Ct. App. 1985).

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Opinion

Judgment of the Supreme Court, New York County (Blyn, J.), entered on August 20, 1985 which, in the first three proceedings, granted the applications of petitioners to invalidate the petitions designating Angelo Del Toro as a candidate for nomination of the Democratic Party for the public office of President of the City Council of the City of New York at the primary election to be held on September 10, 1985 and the last of which granted the application of Del Toro to invalidate the designating petition of Erazo, unanimously reversed, on the law, without costs, the petitions to invalidate denied, the designating petitions of Del [909]*909Toro and Erazo deemed valid and the Board of Elections is directed to place their names on the primary ballot as candidates for such public office (see also, Matter of Erazo v Ruiz, 112 AD2d 909, and Matter of Erazo v McCaffrey, 112 AD2d 909).

These matters were remanded to us by the Court of Appeals for further findings. We find, based on the special referee’s report, to the extent confirmed by Special Term, and to the extent reflected in the minutes, that the proceeding against Del Toro was properly instituted. The number of signatures submitted to the Board of Elections by Del Toro and Erazo was substantially in excess of the number required by law. With respect to Del Toro no objection was made to any specific signatures. The major basis for invalidating the petitions was the failure to append to the several volumes thereof cover sheets which strictly complied with the requirements of Election Law § 6-134 (2). We find the cover page rule to be inapplicable to the circumstances presented to us because the cover page errors are insubstantial. (Matter of Franco v Velez, 112 AD2d 875, affd 65 NY2d 967; Matter of Staber v Fidler, 65 NY2d 529; Matter of Steere v Mason, 112 AD2d 881.) With respect to mispagination, we held in Matter of Farrell v Morgan (112 AD2d 882, 883) that "[ajbsent some indication that the gaps [in pagination] are the result of some fraudulent act, it is manifestly unfair to penalize the signatories who, after all, have the greatest stake in the proper operation of the democratic process, for these occasional aberrations.” We adhere to that holding in this case.

Accordingly, we find the designating petitions to be valid designating petitions and that the motions to invalidate them were improperly granted. Concur — Bloom, J. P., Fein, Rosenberger and Ellerin, JJ.

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Judgment of the Supreme Court, New York County (Blyn, J.), entered on August 20, 1985 which, in the first three proceedings, granted the applications of petitioners to invalidate the petitions designating Angelo Del Toro as a candidate for nomination of the Democratic Party for the public office of President of the City Council of the City of New York at the primary election to be held on September 10, 1985 and the last of which granted the application of Del Toro to invalidate the designating petition of Erazo, unanimously reversed, on the law, without costs, the petitions to invalidate denied, the designating petitions of Del [909]*909Toro and Erazo deemed valid and the Board of Elections is directed to place their names on the primary ballot as candidates for such public office (see also, Matter of Erazo v Ruiz, 112 AD2d 909, and Matter of Erazo v McCaffrey, 112 AD2d 909).

These matters were remanded to us by the Court of Appeals for further findings. We find, based on the special referee’s report, to the extent confirmed by Special Term, and to the extent reflected in the minutes, that the proceeding against Del Toro was properly instituted. The number of signatures submitted to the Board of Elections by Del Toro and Erazo was substantially in excess of the number required by law. With respect to Del Toro no objection was made to any specific signatures. The major basis for invalidating the petitions was the failure to append to the several volumes thereof cover sheets which strictly complied with the requirements of Election Law § 6-134 (2). We find the cover page rule to be inapplicable to the circumstances presented to us because the cover page errors are insubstantial. (Matter of Franco v Velez, 112 AD2d 875, affd 65 NY2d 967; Matter of Staber v Fidler, 65 NY2d 529; Matter of Steere v Mason, 112 AD2d 881.) With respect to mispagination, we held in Matter of Farrell v Morgan (112 AD2d 882, 883) that "[ajbsent some indication that the gaps [in pagination] are the result of some fraudulent act, it is manifestly unfair to penalize the signatories who, after all, have the greatest stake in the proper operation of the democratic process, for these occasional aberrations.” We adhere to that holding in this case.

Accordingly, we find the designating petitions to be valid designating petitions and that the motions to invalidate them were improperly granted. Concur — Bloom, J. P., Fein, Rosenberger and Ellerin, JJ.

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Bluebook (online)

112 A.D.2d 908, 493 N.Y.S.2d 459, 1985 N.Y. App. Div. LEXIS 52122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcleod-v-del-toro-nyappdiv-1985.

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