IN RE: Gabriel A. PEARSE

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

IN RE: Gabriel A. PEARSE, appellant, v. NEW YORK CITY BOARD OF ELECTIONS, respondent.

Decided: August 24, 2004

DAVID S. RITTER, J.P., HOWARD MILLER, SONDRA MILLER, and ROBERT A. SPOLZINO, JJ.

In a proceeding pursuant to Election Law § 16-102, inter alia, to validate so much of a petition as designated Gabriel A. Pearse as a candidate in a primary election to be held on September 14, 2004, for the nomination of the Democratic Party as its candidate for the public office of Member of the United States House of Representatives, 11th Congressional District, the petitioner appeals from a final order of the Supreme Court, Kings County (Levine, J.), dated August 16, 2004, which, among other things, denied the petition and dismissed the proceeding.

ORDERED that the final order is reversed, on the law, without costs or disbursements, the petition is granted, so much of the petition as designated Gabriel A. Pearse as a candidate in a primary election to be held on September 14, 2004, for the nomination of the Democratic Party as its candidate for the public office of Member of the United States House of Representatives, 11th Congressional District, is validated, and the Board of Elections of the City of New York is directed to place the name of Gabriel A. Pearse on the appropriate ballot.

The petitioner's amended cover sheet was in substantial compliance with the Election Law and the rules promulgated by the Board of Elections of the City of New York (hereinafter the Board) (see Election Law § 6-134[10];  9 NYCRR 6215.6 [a];  Matter of Siems v. Lite, 307 A.D.2d 1016, 763 N.Y.S.2d 501;  Matter of Most v. Walker, 297 A.D.2d 356, 746 N.Y.S.2d 410;  Matter of Fromson v. Lefever, 112 A.D.2d 1064, 1066-1067, 493 N.Y.S.2d 169, affd. sub nom. Matter of Barrett v. Scaringe, 65 N.Y.2d 946, 493 N.Y.S.2d 1017, 483 N.E.2d 1149).   In any event, the petitioner was neither notified of the Board's determination nor afforded the opportunity to cure the purported defect, as required by the Rules of the Board of Elections of the City of New York, D2 and E1 (see 9 NYCRR 6215.7[b] ).

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