IN RE: Keith ROMAINE (2009)

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Christopher Marshall as a candidate in a primary election to be held on September 15, 2009, for the nomination of the Conservative Party as its candidate for the public office of Councilmember, Council District 6, Town of Brookhaven, the petitioner appeals from a final order of the Supreme Court, Suffolk County (Jones, J.), dated August 14, 2009, which, upon a decision of the same court dated August 6, 2009, made after a hearing, and, among other things, upon granting, in part, the application of Christopher Marshall to preclude him from adducing evidence of certain alleged defects in the designating petition, denied the petition and dismissed the proceeding, and Christopher Marshall cross-appeals, as limited by his brief, from stated portions of the same final order.

ORDERED that the cross appeal is dismissed, without costs or disbursements, as Christopher Marshall is not aggrieved by the final order (see CPLR 5511;  Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241);  and it is further,

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

The contentions of the petitioner, Keith Romaine, that Sheet No. 5 of the designating petition was permeated with fraud and that the Suffolk County Conservative Party failed to comply with Election Law § 6-120 are raised for the first time on appeal and, therefore, are not properly before this Court (see Matter of Leroy v. Board of Elections in City of N.Y., 65 A.D.3d 645, ----, 883 N.Y.S.2d 907, 908;  Matter of Maher v. Coads, 297 A.D.2d 397, 397, 746 N.Y.S.2d 619).

 Romaine's contention that the Supreme Court should have denied the application of candidate Christopher Marshall to preclude Romaine from adducing evidence of certain alleged defects in the designating petition is without merit, since those alleged defects were not set forth in or incorporated into the pleadings as specific objections, and Marshall was not otherwise sufficiently or fairly apprised of which signatures were being challenged and the grounds for those challenges (see Matter of O'Toole v. D'Apice, 112 A.D.2d 1078, 1078, 493 N.Y.S.2d 56;  Matter of Belak v. Rossi, 96 A.D.2d 1011, 1011-1012, 467 N.Y.S.2d 100;  cf. Matter of Venuti v. Westchester County Bd. of Elections, 43 A.D.3d 482, 484, 842 N.Y.S.2d 30;  Matter of Mazza v. Board of Elections of County of Albany, 196 A.D.2d 679, 680, 601 N.Y.S.2d 508;  Matter of Smith v. Marchi, 143 A.D.2d 325, 325, 532 N.Y.S.2d 389).

Contrary to Romaine's contentions, there was insufficient proof that Mark Allen, one of the subscribing witnesses, made false statements on Sheet No. 2 of the designating petition.   Moreover, Allen both initialed and explained the contested alterations (see Matter of Jonas v. Velez, 65 N.Y.2d 954, 955, 493 N.Y.S.2d 1019, 483 N.E.2d 1151;  Matter of Rosmarin v. Belcastro, 44 A.D.3d 1055, 1056, 848 N.Y.S.2d 195;  Matter of Sternberg v. Hill, 269 A.D.2d 730, 731, 711 N.Y.S.2d 512;  Matter of Coleman v. Boone, 230 A.D.2d 872, 872, 646 N.Y.S.2d 573;  Matter of Brown v. Phillips, 185 A.D.2d 953, 953, 587 N.Y.S.2d 23;  Matter of Smith v. McNab, 96 A.D.2d 922, 922, 466 N.Y.S.2d 106).

 Furthermore, we find no basis in the record to disturb the Supreme Court's finding that the date set forth at Sheet No. 3, line 14, of the designating petition properly indicated the day, month, and year when the signature was affixed (see Election Law § 6-130;  see generally Matter of Pringle v. Spanakos, 207 A.D.2d 515, 516, 616 N.Y.S.2d 245;  cf. Matter of Purtell v. Kuczek, 112 A.D.2d 1092, 1094, 493 N.Y.S.2d 227).   Even if there were such an error, under the circumstances, it would not serve to invalidate the subsequent signatures (see Matter of Kent v. Bass, 83 A.D.2d 898, 898, 442 N.Y.S.2d 123, affd. 54 N.Y.2d 776, 443 N.Y.S.2d 154, 426 N.E.2d 1184).

Additionally, there is no basis in the record to disturb the Supreme Court's finding that the identities of the signers on Sheet No. 1, line 18, and on Sheet No. 6, line 1, of the designating petition “as ․ registered voter[s]” were “established by reference to the signature[s] on the petition and that of [ ] person[s] whose name[s] appear[ ] in the registration poll ledgers” (Election Law § 6-134[5];  cf. Matter of Fusco v. Miele, 275 A.D.2d 426, 426, 712 N.Y.S.2d 628).   Moreover, the Supreme Court properly denied Romaine's objection with respect to the signature appearing at Sheet No. 1, line 12, of the designating petition, in light of the uncontradicted testimony of the signer, who unequivocally testified that he had signed on that line (see Matter of Jaffee v. Kelly, 32 A.D.3d 485, 485-486, 819 N.Y.S.2d 485;  cf. Matter of Henry v. Trotto, 54 A.D.3d 424, 426, 862 N.Y.S.2d 605).

In light of the foregoing, the parties' remaining contentions are not properly before this Court or need not be considered.