IN RE: Kimberly M. PAGE

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

IN RE: Kimberly M. PAGE, Respondent, v. Andrew G. CERESIA, Appellant, et al., Respondents.

Decided: October 27, 1999

Before:  MIKOLL, J.P., MERCURE, CREW III, YESAWICH JR. and MUGGLIN, JJ. Lee, Le Forestier & Hanft (Richard A. Hanft of counsel), Troy, for appellant. Pirro, Collier, Cohen & Halpern (Jeffrey T. Buley of counsel), White Plains, for Kimberly M. Page, respondent.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered October 21, 1999 in Rensselaer County, which, inter alia, granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the certificate of substitution naming respondent Andrew G. Ceresia as the Conservative Party candidate for the office of Town Justice of the Town of North Greenbush in the November 2, 1999 general election.

Petitioner commenced this proceeding challenging the certificate of substitution naming respondent Andrew G. Ceresia (hereinafter respondent) as the conservative Party candidate for the office of Town Justice of the Town of North Greenbush in the November 2, 1999 general election.   Respondent cross-moved to dismiss contending, inter alia, granted petitioner the requested relief, promoting this appeal by respondent.

Respondent, as so limited by his brief, contends only that Supreme Court erred in failing to dismiss this proceeding, which was commenced by the filing of an order to show cause and affirmation verified by petitioner's attorney, based upon jurisdictional grounds. Specifically, respondent argues that this proceeding was not commenced in compliance with Election Law § 16-116, which requires that a special proceeding of this nature be heard upon a “ verified petition”.   For the reasons that follow, we find this argument to be lacking in merit and, accordingly, affirm Supreme Court's judgment.

As a starting point, absent any claim that a substantial right of a party was prejudiced, Supreme Court properly treated the verified affirmation as a petition for purposes of commencing this special proceeding (see, CPLR 402, 3026;  Matter of Duffy v. Poughkeepsie City School Dist., 183 A.D.2d 1047, 1048 n. 1, 583 N.Y.S.2d 658;  Matter of Rosenhain, 151 A.D.2d 835, 836-837, 542 N.Y.S.2d 810).   As to the validity of such verification, CPLR 3020(d)(3) permits the verification to be made by an attorney where, as here, the party in question does not reside in the county where the attorney has his or her office.   In our view, Supreme Court correctly concluded that counsel's verification here satisfied the requirements imposed by Election Law § 16-116 (see, Matter of Tenneriello v. Board of Elections of City of N.Y., 63 N.Y.2d 700, 701, 479 N.Y.S.2d 978, 468 N.E.2d 1115).   Respondent's remaining arguments regarding Supreme Court's jurisdiction over this matter have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed, without costs.

PER CURIAM.

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