IN RE: Meryl L. FISCHER (2004)

In a proceeding pursuant to Election Law § 16-102, among other things, to invalidate a petition, inter alia, designating various individuals as candidates in a primary election to be held on September 14, 2004, for the party positions of Male and Female Members of the Independence Party State Committee, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, and 21st Assembly Districts, Nassau County, and Members of the Independence Party County Committee, Nassau County, for their respective Election Districts, Michael S. Peragine, Desiree Kelly, Edwin T. Kelly, Janet A. Idema, John K. Peragine, Bonnie Green, Gabriel S. Parajos, Paul N. Meitinnis, Gary N. Sinawski, Debra E. Pearl, Patricia G. Seldomridge, Robert J. Seldomridge, Robert Palumbo, Rosemary F. Styne, Miriam C. Flores Alfaro, Gilberto Flores, Denai A. Markin, Gregory Markin, James J. Smith, Thomas Siracuse, Jill S. Shapiro, Stephen R. Mahler, Kerrianne Corbett, Steven W. Corbett, James A. Magan, Debra B. Kovitz, Matthew Lombardo, Thomas Meehan, Howard M. Stillwagon, Mary Stillwagon, Catherine Manganiello, Michael Manganiello, Nancy A. Burn, and George Essig appeal from so much of a final order of the Supreme Court, Nassau County (De Maro, J.), entered August 11, 2004, as granted that branch of the petition which was to disqualify Michael S. Peragine and Bonnie Green from seeking any position in the Independence Party, and the petitioners cross-appeal, as limited by their brief, from so much of the same final order as denied that branch of the petition which was to invalidate the designating petition.

ORDERED that the appeal by Desiree Kelly, Edwin T. Kelly, Janet A. Idema, John K. Peragine, Gabriel S. Parajos, Paul N. Meitinnis, Gary N. Sinawski, Debra E. Pearl, Patricia G. Seldomridge, Robert J. Seldomridge, Robert Palumbo, Rosemary F. Styne, Miriam C. Flores Alfaro, Gilberto Flores, Denai A. Markin, Gregory Markin, James J. Smith, Thomas Siracuse, Jill S. Shapiro, Stephen R. Mahler, Kerrianne Corbett, Steven W. Corbett, James A. Magan, Debra B. Kovitz, Matthew Lombardo, Thomas Meehan, Howard M. Stillwagon, Mary Stillwagon, Catherine Manganiello, Michael Manganiello, Nancy A. Burn, and George Essig is dismissed, without costs or disbursements, as those parties are not aggrieved by the portion of the final order appealed from (see CPLR 5511);  and it is further,

ORDERED that the final order is modified, on the law, by deleting the provision thereof denying that branch of the petition which was to invalidate so much of the designating petition as designated Michael S. Peragine, Desiree Kelly, Edwin T. Kelly, Janet A. Idema, John K. Peragine, Bonnie Green, Gabriel S. Parajos, Paul N. Meitinnis, Gary N. Sinawski, Debra E. Pearl, Patricia G. Seldomridge, Robert J. Seldomridge, Robert Palumbo, Rosemary F. Styne, Miriam C. Flores Alfaro, Gilberto Flores, Denai A. Markin, Gregory Markin, James J. Smith, Thomas Siracuse, Jill S. Shapiro, Stephen R. Mahler, Kerrianne Corbett, Steven W. Corbett, James A. Magan, Debra B. Kovitz, Matthew Lombardo, Thomas Meehan, Howard M. Stillwagon, Mary Stillwagon, Catherine Manganiello, Michael Manganiello, Nancy A. Burn, and George Essig as candidates and substituting therefor a provision granting that branch of the petition;  as so modified, the final order is affirmed insofar as appealed from by Michael S. Peragine and Bonnie Green and insofar as cross-appealed from, without costs or disbursements, and the Nassau County Board of Elections is directed to remove the names of Michael S. Peragine, Desiree Kelly, Edwin T. Kelly, Janet A. Idema, John K. Peragine, Bonnie Green, Gabriel S. Parajos, Paul N. Meitinnis, Gary N. Sinawski, Debra E. Pearl, Patricia G. Seldomridge, Robert J. Seldomridge, Robert Palumbo, Rosemary F. Styne, Miriam C. Flores Alfaro, Gilberto Flores, Denai A. Markin, Gregory Markin, James J. Smith, Thomas Siracuse, Jill S. Shapiro, Stephen R. Mahler, Kerrianne Corbett, Steven W. Corbett, James A. Magan, Debra B. Kovitz, Matthew Lombardo, Thomas Meehan, Howard M. Stillwagon, Mary Stillwagon, Catherine Manganiello, Michael Manganiello, Nancy A. Burn, and George Essig from the appropriate ballots.

 The petitioners sought, inter alia, to invalidate a designating petition which contained a slate of candidates, including candidates for Independence Party State Committee, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, and 21st Assembly Districts, Nassau County, which designating petition they had standing to challenge.   Thus, they also had standing to challenge the designating petition with respect to the candidates for Independence Party County Committee, Nassau County, because the validity of the petition in its entirety was called into question by the claim that it was permeated with fraud (see Election Law § 6-154[2];  § 16-102[1];  Matter of Livreri v. Gargiulo, 49 N.Y.2d 832, 833, 427 N.Y.S.2d 783, 404 N.E.2d 1324;  see also Matter of McGoey v. Black, 100 A.D.2d 635, 636-637, 473 N.Y.S.2d 599).

Under the circumstances of this case, the Supreme Court should have found that the designating petition was permeated with fraud (see Matter of Heitzner v. Neglia, 196 A.D.2d 616, 601 N.Y.S.2d 705;  Matter of Gucciardo v. Meyers, 196 A.D.2d 615, 601 N.Y.S.2d 864;  see also Matter of Richardson v. Luizzo, 64 A.D.2d 942, 943, 408 N.Y.S.2d 532, affd. 45 N.Y.2d 789, 409 N.Y.S.2d 9, 381 N.E.2d 182;  Matter of Lutfy v. Gangemi, 35 N.Y.2d 179, 182, 359 N.Y.S.2d 273, 316 N.E.2d 710).   The remaining issue is what relief may be granted based on that finding under the posture of this proceeding.

 The Supreme Court correctly disqualified both Michael S. Peragine and Bonnie Green from seeking any position in the Independence Party based upon their active involvement in the fraudulent activities (see Matter of Villafane v. Caban, 104 A.D.2d 579, 479 N.Y.S.2d 282).   However, since the petitioners failed to name and serve all the persons named in the designating petition as parties to this proceeding, the relief has been limited to a direction that the Nassau County Board of Elections remove from the appropriate ballot only the names of persons actually named and served as respondents (cf. Matter of Buchanan v. Espada, 88 N.Y.2d 973, 648 N.Y.S.2d 426, 671 N.E.2d 538).   The case of Matter of Richardson v. Luizzo, supra, is not to the contrary since in that case the court declared the designating petition invalid with respect to “all of the respondent candidates [emphasis added].”

The parties' remaining contentions either have been rendered academic in light of our determination or are without merit.