IN RE: Justin DiSanzo

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

IN RE: Justin DiSanzo, et al., appellants, v. Joseph P. Addabbo, Jr., et al., respondents.

2010-07847 (Index No. 19176/10)

Decided: August 18, 2010

MARK C. DILLON, J.P. HOWARD MILLER JOHN M. LEVENTHAL CHERYL E. CHAMBERS, JJ.

Argued-August 17, 2010

DECISION & ORDER

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Joseph P. Addabbo, Jr., as a candidate in a primary election to be held on September 14, 2010, for the nomination of the Working Families Party as its candidate for the public office of State Senator for the 15th Senatorial District, the petitioners appeal from a final order of the Supreme Court, Queens County (O'Donoghue, J.), which, after a hearing, denied the petition and, in effect, dismissed the proceeding.

ORDERED that the final order is reversed, on the law, without costs or disbursements, the proceeding is reinstated, the petition to invalidate the designating petition is granted, and the Board of Elections in the City of New York is directed to remove the name of Joseph P. Addabbo, Jr., from the appropriate ballot.

The petitioners commenced this proceeding, inter alia, to invalidate a designating petition.   Before the hearing, the parties stipulated that the designating petition contained 30 signatures, and that 24 signatures were required (see Election Law § 6-136[2] ).   Joseph P. Addabbo, Jr., conceded that 3 of the 30 signatures were invalid.   The Supreme Court determined that only an additional 3 signatures were invalid, and therefore denied the petition upon finding, in effect, that there were 24 valid signatures.   We reverse.

Election Law § 6-130 provides that “[t]he sheets of 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 is affixed” (Election Law § 6-130).  Election Law § 6-132 also requires that each signature on a designating petition bear the date it was made (see Matter of Vassos v New York City Bd. of Elections, 286 A.D.2d 463).   These requirements must be strictly complied with, as it is a matter of prescribed content (see Matter of Stoppenbach v. Sweeney, 98 N.Y.2d 431;  Matter of Hutson v. Bass, 54 N.Y.2d 772;  Matter of DeBerardinis v. Sunderland, 277 A.D.2d 187).

Here, the Supreme Court erred in failing to invalidate the signature contained on Sheet No. 7, line 5, of the designating petition since there was no date written next to the signature (see Matter of Vassos v New York City Bd. of Elections, 286 A.D.2d at 463;  Matter of DeBerardinis v. Sunderland, 277 A.D.2d at 187;  Matter of Parra v. Shiffman, 64 A.D.2d 934;  Matter of Nunley v. Cohen, 258 App.Div. 746).   Furthermore, as the subscribing witness wrote down the incorrect date on which two signatures were affixed to Sheet No. 6, lines 2 and 3, of the designating petition, those signatures should have been invalidated (see Matter of Kent v. Bass, 83 A.D.2d 898;  Matter of Nunley v. Cohen, 258 App.Div. at 746;  see generally Matter of Stoppenbach v Sweeney, 98 N.Y.2d at 433;  Matter of MacKay v. Cochran, 264 A.D.2d 699, 699-700).   Excluding these three signatures, the number of remaining signatures on the designating petition is insufficient to meet the requirements of Election Law § 6-132(2).

DILLON, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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