IN RE: Franz N. STOPPENBACH Jr.

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

IN RE: Franz N. STOPPENBACH Jr., Appellant-Respondent, v. John E. SWEENEY, Respondent-Appellant, et al., Respondents.

Decided: August 22, 2002

Before:  CREW III, J.P., CARPINELLO, MUGGLIN, ROSE and LAHTINEN, JJ. Michael A. Avella,Jeffrey T. Buley and Christopher F. Grimaldi, Albany, for respondent-appellant. Paul M. Whitaker, Albany, for appellant-respondent.

Cross appeals from a judgment of the Supreme Court (Stein, J.), entered August 15, 2002 in Albany County, which granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the designating petition naming respondent John E. Sweeney as the Independence Party candidate for the office of Member of Congress, 20th Congressional District, in the September 10, 2002 primary election.

Petitioner commenced this proceeding challenging the sufficiency of the designating petition naming respondent John E. Sweeney (hereinafter respondent) as the Independence Party candidate for Member of Congress for the 20th Congressional District in this year's primary election.   Supreme Court ruled in favor of petitioner, finding 69 of the 616 signatures on respondent's designating petition to be invalid and leaving respondent with 547 valid signatures compared with the required 591 (see Election Law § 6-136).

 On these cross appeals,1 the parties focus on the signatures that Supreme Court ruled to be invalid on the ground that the signers had entered an incorrect town or city of residence, in violation of Election Law § 6-130, which provides that “a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county) and the date when the signature was affixed.”

 We are constrained by our precedents to agree with Supreme Court that signers of designating petitions must comply with the statute by including their town or city of residence (see Matter of Frome v. Nassau County Bd. of Elections, 57 N.Y.2d 741, 742, 454 N.Y.S.2d 978, 440 N.E.2d 1325;  Matter of Zobel v. New York State Bd. of Elections, 254 A.D.2d 520, 522, 678 N.Y.S.2d 794;  see also Matter of Ligammari v. Norris, 275 A.D.2d 884, 884, 719 N.Y.S.2d 787).   Although we are mindful of the Federal District Court's well-reasoned conclusion in Molinari v. Powers, 82 F.Supp.2d 57, 72-73 that the town or city information prescribed by Election Law § 6-130 is no longer necessary to enable a board of elections to confirm the residence of one who signs a designating petition, we have previously considered the availability of computerized voter registration records on this issue and rejected that as a basis for a constitutional challenge (see Matter of Zobel v. New York State Bd. of Elections, supra at 522, 678 N.Y.S.2d 794).

 Finally, we find respondent's alternate contention that Supreme Court should have reduced the number of required signatures in proportion to the abbreviated time permitted for the circulation of his petition to be without merit here.   Accordingly, we affirm the judgment.

We respectfully dissent and would reverse the judgment of Supreme Court under the rationale of Molinari v. Powers, 82 F.Supp.2d 57, 72-73, particularly in light of petitioner's concession that all of the signatures invalidated by virtue of the “town/city ‘trap’ ” (id. at 63) were duly enrolled voters of the Independence Party and there is no hint that the otherwise valid signatures were fraudulently obtained.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Although petitioner filed a notice of cross appeal, his cross appeal must be dismissed because he is not technically aggrieved by Supreme Court's judgment which granted his petition and invalidated respondent's designating petition (see CPLR 5511).

PER CURIAM.

CREW III, J.P., MUGGLIN and ROSE, JJ., concur.

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