IN RE: Spencer T. “Skip” KOWAL (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that said cross appeal is unanimously dismissed, the order and judgment is reversed on the law without costs and the petition is dismissed.

Memorandum: In this proceeding pursuant to Election Law article 16, respondents-appellants-respondents (respondents) appeal and petitioner cross-appeals from an order and judgment that granted the petition on the ground that the certificate of authorization purporting to authorize respondent-appellant-respondent John Bargnesi, Jr. as a candidate of the Conservative Party for the public office of Erie County Legislator, 4th Legislative District, in the primary election to be held on June 22, 2021 was invalid and enjoined respondents-respondents Ralph Mohr and Jeremy Zellner from placing Bargnesi on the Conservative Party primary ballot. Preliminarily, we note that the order and judgment purported to grant the petition based on one alleged basis for invalidity and deny the petition with respect to another alleged basis but, in effect, granted the petition in its entirety. We conclude that the cross appeal must be dismissed inasmuch as petitioner received all the relief that he requested in the petition and he is therefore not aggrieved by the order and judgment (see Benedetti v. Erie County Med. Ctr. Corp., 126 A.D.3d 1322, 1323, 5 N.Y.S.3d 746 [4th Dept. 2015]).

Respondents contend on their appeal that Supreme Court erred in determining that the certificate of authorization was invalid because it failed to state the date of the primary election. We agree. Unlike the statutes at issue in the cases relied on by the court (see Matter of O'Connor v. Salerno, 105 A.D.2d 487, 488, 480 N.Y.S.2d 633 [3d Dept. 1982]; Matter of Braxton v. Smolinski, 89 A.D.2d 1053, 1053, 454 N.Y.S.2d 915 [4th Dept. 1982], lv denied 57 N.Y.2d 605, 454 N.Y.S.2d 1030, 440 N.E.2d 1341 [1982]), the statute at issue here, Election Law § 6-120 (3), does not specifically prescribe that the date of the primary election be specified in the certificate of authorization (cf. Election Law §§ 6-132 [1]; 6-140 [1]). We therefore conclude that there was substantial compliance with section 6-120 (3) inasmuch as the omission of the date of the primary election was “ ‘neither a defect invalidating the certificate nor a matter presenting an opportunity for prejudice or possibility of fraud’ ” (Matter of Di Stefano v. Kiggins, 254 A.D.2d 688, 688, 678 N.Y.S.2d 416 [4th Dept. 1998]; see Matter of Hazell v. Board of Elections of State of N.Y., 224 A.D.2d 806, 807, 637 N.Y.S.2d 530 [3d Dept. 1996], lv denied 87 N.Y.2d 808, 641 N.Y.S.2d 830, 664 N.E.2d 896 [1996]). Further, “[t]here is no question that the objectives of Election Law § 6-120 (3) were met here, as no issue was raised as to whether the subject authorization expressed the will of the party committee of the political subdivision involved” (Matter of Farrell v. Reid, 131 A.D.3d 628, 630, 15 N.Y.S.3d 429 [2d Dept. 2015]).

We have reviewed the contentions raised by petitioner as alternative grounds for affirmance (see generally Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983]) and conclude that they lack merit.