IN RE: Timothy P. O'DEA

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

IN RE: Timothy P. O'DEA, et al., Petitioners-Respondents, v. Robert A. BELL, Appellant, et al., Respondents.

Decided: August 20, 1997

Before BRACKEN, J.P., and COPERTINO, ALTMAN, McGINITY and LUCIANO, JJ.

In a proceeding to invalidate petitions designating Robert A. Bell as a candidate in a primary election to be held on September 9, 1997, for the nomination of the Republican Party as its candidate for the public office of Member of the City Council of the City of New York for the 39th Council District, the appeal is from a judgment of the Supreme Court, Kings County (Barasch, J.), entered August 14, 1997, which granted the application.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the application is denied, the proceeding is dismissed, and the Board of Elections of the City of New York is directed to restore the name of Robert A. Bell to the appropriate ballot.

The Supreme Court erred in invalidating all of the signatures witnessed by a certain Commissioner of Deeds.   The testimony adduced at trial supported the finding that the Commissioner failed to take the oath of three of the 146 signatories.   These three signatures were properly invalidated (see, Matter of Boyle v. New York City Bd. of Elections, 185 A.D.2d 953, 587 N.Y.S.2d 23;  Matter of Zunno v. Fein, 175 A.D.2d 935, 936, 573 N.Y.S.2d 527).   However, no evidence was presented which would rebut the strong presumption of regularity that a public officer has performed the duty imposed upon him by law with respect to the remaining 143 signatures (see, Matter of Rodriguez v. Harris, 51 N.Y.2d 737, 738, 432 N.Y.S.2d 358, 411 N.E.2d 777;  Matter of Caruso v. Casciola, 27 N.Y.2d 657, 658, 313 N.Y.S.2d 871, 261 N.E.2d 907;  Matter of Frazier v. Leon, 186 A.D.2d 99, 100, 587 N.Y.S.2d 45).

MEMORANDUM BY THE COURT.

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