BRIEN v. SENECA COUNTY BOARD OF ELECTIONS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Michael P. O'BRIEN, Petitioner-Appellant, v. SENECA COUNTY BOARD OF ELECTIONS, Ruth Same and Elaine Catanise, Commissioners, Seneca County Board of Elections, Respondents-Respondents, et al., Respondent.

Decided: October 21, 2005

PRESENT:  GREEN, J.P., GORSKI, SMITH, LAWTON, AND HAYES, JJ. Edward C. Gangarosa, Rochester, for Petitioner-Appellant.

 Petitioner commenced this proceeding seeking, inter alia, a determination that the certificate of nominations filed in the Seneca County Board of Elections regarding respondent Duane E. Chrysler is null and void.   We agree with petitioner that Supreme Court erred in dismissing the petition for failure to join the Town of Waterloo Democratic Committee Chairperson as a necessary party.   The petition sought to remove Chrysler from the ballot, and thus the relief sought could be granted without joining or inequitably affecting the Democratic Party or Chairperson of the Democratic Party (see Matter of Seaman v. Bird, 176 A.D.2d 1061, 1062, 575 N.Y.S.2d 207;   Matter of Michaels v. New York State Bd. of Elections, 154 A.D.2d 873, 874, 546 N.Y.S.2d 736).   The petition did not seek to reconvene the caucus.   Thus, it is of no moment that the Chairperson of the Democratic Party would have been the proper person to reconvene the caucus, and it therefore cannot be said that the Chairperson was a necessary party to this proceeding (cf. Matter of Buckley v. Board of Elections of Livingston County, 265 A.D.2d 866, 867, 705 N.Y.S.2d 742;  see generally Matter of Elgin v. Smith, 10 A.D.3d 483, 484, 781 N.Y.S.2d 182).

 With respect to the merits of the petition, the elected office at issue herein is a county office (see Local Law No. 1 [1972] of Seneca County § 2), and candidates for such an office must be selected by designating petition and primary election (see Election Law §§ 6-110, 6-118;  cf. § 6-108).   The selection of Chrysler by caucus was therefore improper.   Thus, we reverse the order, grant the petition and invalidate the certificate of nominations nominating Chrysler.

It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law without costs, the petition is granted and the certificate of nominations nominating respondent Duane E. Chrysler is invalidated.

We dissent.   In our view, Supreme Court properly dismissed the petition seeking, inter alia, an order determining that the certificate of nominations purporting to nominate respondent Duane E. Chrysler as a Democratic candidate for the office of “Supervisor at Large” in the Town of Waterloo is null and void.   The court properly determined that the petition is null and void for failure to join a necessary party (see CPLR 1001[a];  Matter of Jenkins v. Board of Elections of City of N.Y., 270 A.D.2d 436, 437, 705 N.Y.S.2d 64).   By seeking in this proceeding to void the certificate of nominations, petitioner necessarily challenged the propriety of the nominating caucus by the Town of Waterloo Democratic Committee (Committee).   Thus, the Chairperson of the Committee was a necessary party to the proceeding inasmuch as the Committee might have been “inequitably affected” by the decision (CPLR 1001[a] ).   Because “this proceeding is governed by the 10-day limitation period of Election Law § 16-102(2) ․, timely joinder of [the Chairperson] as [a] respondent[ ] in this proceeding is not possible” (Jenkins, 270 A.D.2d at 437, 705 N.Y.S.2d 64).

MEMORANDUM: