IN RE: John A. Vitucci (2026)

Argued—October 1, 2026

DECISION & ORDER

In a proceeding pursuant to Election Law § 16–102, inter alia, to validate a certificate of nomination naming John A. Vitucci as the candidate of the Democratic Party for the public office of Judge of the Civil Court of the City of New York from the County of Richmond, 1st Municipal District, in a general election to be held on November 3, 2026, Kevin P. Ford, Erin N. Ford, and Paul C. Perricone appeal from a final order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 13, 2026.  The final order, among other things, granted the petition, inter alia, to validate the certificate of nomination and directed the Board of Elections in the City of New York to place John A. Vitucci's name on the ballot in the general election to be held on November 3, 2026, under the Democratic Party line, for the public office of Judge of the Civil Court of the City of New York from the County of Richmond, 1st Municipal District.

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

On August 4, 2026, the petitioners commenced this proceeding pursuant to Election Law § 16–102, inter alia, to validate a certificate of nomination naming John A. Vitucci as the candidate of the Democratic Party for the public office of Judge of the Civil Court of the City of New York from the County of Richmond, 1st Municipal District (hereinafter the office at issue), in a general election to be held on November 3, 2026.  According to the petitioners, earlier on that same date, the Board of Elections in the City of New York (hereinafter the Board) sustained objections to the certificate of nomination and determined that the certificate of nomination was invalid.  Kevin P. Ford, Erin N. Ford, and Paul C. Perricone (hereinafter collectively the objectors) opposed the petition, inter alia, to validate the certificate of nomination.  In a final order dated August 13, 2026, the Supreme Court, among other things, granted the petition, inter alia, to validate the certificate of nomination and directed the Board to place Vitucci's name on the ballot in the general election to be held on November 3, 2026, under the Democratic Party line, for the office at issue.  The objectors appeal.

The objectors' contention on appeal that the proceeding was untimely because it was not commenced within 10 days of a July 15, 2026 meeting of the Democratic District Committee of the Richmond County Democratic Committee of the 1st Municipal Court District of the Civil Court of the City of New York (see id. § 16–102[2] ) is without merit.  Since this issue presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, under the circumstances of this case, we reach this contention although it is raised for the first time on appeal (see Kinzler v. Ascend Learning, Inc., 252 AD3d 733, 735;  Lopiccolo v. Holtsville Fire Dist., 242 AD3d 862, 865).

To properly institute a proceeding raising a challenge under Election Law § 16–102, a petitioner must commence the proceeding and complete service on all necessary parties within the period prescribed by Election Law § 16–102(2) (see Matter of Mahler v. Siniscalchi, 228 AD3d 707, 708;  Matter of McCrory v Westchester County Bd. of Elections, 216 AD3d 857, 858).  Here, the proceeding was commenced within three business days of the Board's determination invalidating the certificate of nomination and, therefore, was timely (see Election Law § 16–102[2] ).  This Court does not construe Election Law § 16–102(2) to preclude a proceeding that is promptly instituted after a petitioner receives notice of the Board's determination (see Matter of Pell v. Coveney, 37 N.Y.2d 494, 496;  Matter of Hansen v Suffolk County Bd. of Elections, _ AD3d _, _, 2026 N.Y. Slip Op 05256, *2).

We also conclude that, contrary to the objectors' contention, the strictures of Election Law § 6–148(4) are inapplicable to the certificate of nomination.  As a general matter, when presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature (see People ex rel. Ellis v. Imperati, 45 NY3d 67, 73;  Matter of Winter v. Luft, 230 AD3d 1084, 1087).  Since the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof (see Matter of Wohl v. Bruen, 238 AD3d 818, 821;  Matter of Winter v. Luft, 230 AD3d at 1087).  When the statutory language at issue is but one component of a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible (see People ex rel. Ellis v. Imperati, 45 NY3d at 73;  Matter of Mestecky v. City of New York, 30 NY3d 239, 243).

Here, the certificate of nomination is subject to the requirements of Election Law § 6–156, which governs the process for “[p]arty nominations;  certifications” and sets forth, among other things, the required content of certificates of nomination made other than at a primary.  In contrast, Election Law § 6–148(4), which pertains to “[n]omination and designation;  filling vacancies,” is inapplicable to the certificate of nomination, as the vacancy in the office at issue was not a vacancy in a nomination or designation and was not caused by declination, disqualification, death, or a tie vote (see id. § 6–148[1];  Testa v. Ravitz, 84 N.Y.2d 893, 895;  Matter of Swift v. Huested, 176 A.D.2d 980, 981).  Rather, the vacancy in the office at issue was created on June 1, 2026, when the New York State Legislature amended section 102–a of the New York City Civil Court Act to create, inter alia, an additional Civil Court judgeship in Richmond County's 1st Municipal Court District (see L 2026, ch 58, part HHH, § 1).  The amendment provided that “[t]he positions created by section one of this act shall be filled by election at the November 3, 2026 election, for a term to commence on the first day of January, 2027, as if such vacancies occurred on the effective date of this act” (L 2026, ch 58, part HHH, § 2).

Our determination that Election Law § 6–148(4) is inapplicable here is consistent with prior case law, which limited the applicability of Election Law § 6–148(4) to vacancies in preexisting nominations and designations (see e.g. Testa v. Ravitz, 84 N.Y.2d at 895;  Matter of Brocato v. Tinari, 157 AD3d 782, 784).  The plain language of the caption of Election Law § 6–148(4), entitled “[n]omination and designation;  filling vacancies,” supports our determination that the vacancy in the office at issue falls outside of the parameters of Election Law § 6–148(4).  Since Election Law § 6–148(4) applies to vacancies in an existing nomination or designation that needs to be filled, it is not applicable to a vacancy in the office at issue, which was created by an act of the Legislature (see L 2026, ch 58, part HHH, § 1).

Here, the objectors did not contend that the certificate of nomination failed to comply with Election Law § 6–156, and we conclude that Election Law § 6–148(4) is inapplicable.  Accordingly, the Supreme Court properly granted the petition, inter alia, to validate the certificate of nomination and directed the Board to place Vitucci's name on the ballot in the general election to be held on November 3, 2026, under the Democratic Party line, for the office at issue.

In light of our determination, we need not reach the parties' remaining contentions.

DUFFY, J.P., WARHIT, VENTURA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court