Opinion
2002-07730
Argued August 27, 2002.
August 28, 2002.
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating, among others, S. Kenneth Evans as a candidate in a primary election to be held on September 10, 2002, for the nomination of the Democratic Party as its candidate for the public office of Member of the Assembly for the 40th Assembly District, the appeal is from an order of the Supreme Court, Kings County (Tomei, J.), dated August 19, 2002, which denied the motion of S. Kenneth Evans, to vacate so much of a final order of the same court, dated August 13, 2002, as, upon his failure to appear, granted that branch of the petition which was to invalidate so much of the petition as designated him as a candidate.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, LEO F. McGINITY, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
ORDERED that the order dated August 19, 2002, is reversed, on the law, without costs or disbursements, the motion is granted, so much of the final order dated August 13, 2002, as invalidated so much of the petition as designated S. Kenneth Evans as a candidate is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.
The record demonstrates confusion as to whether the title and/or index number of this proceeding was read when the calendar was called on the return date of the order to show cause by which it was commenced. It is clear that the appellant was in the courtoom at the time the calendar was called and intended to participate in the proceedings. Under the circumstances, it cannot be concluded that the appellant was in default, and even if he was, the record indicates that his default was not intentional or the result of bad faith (see Matter of Santiago v. Santiago, 275 A.D.2d 429; Krebs v. Cabrera, 250 A.D.2d 736, 737; Key Bank of Southeastern N.Y. v. Lammers, 191 A.D.2d 615, 616). Moreover, it appears that the appellant may have a colorable defense (see Key Bank of Southeastern N.Y. v. Lammers, supra at 616).
Accordingly, the appellant's motion to vacate so much of the final order invalidating so much of the petition as designated him as a candidate, entered upon his failure to appear at the hearing, is granted, and the matter is remitted to the Supreme Court, Kings County, to decide the proceeding on the merits insofar as it relates to the appellant.
PRUDENTI, P.J., FLORIO, McGINITY, CRANE and COZIER, JJ., concur.