Summary
In Owens v. Sharpton (45 N.Y.2d 794, 796), the Court of Appeals stated "[W]here... there is no finding that either the petition or petition gathering process is tainted by fraud, the committee is empowered to make this substitution....Where, on the other hand, the designating petition itself is `invalid', the result will be different."
Summary of this case from In re Application of Espada v. DiazOpinion
Argued August 30, 1978
Decided September 1, 1978
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, BELDOCK, J.
H. Spencer Kupperman for appellants.
M. Douglas Haywoode for respondents.
MEMORANDUM.
The order insofar as appealed from should be affirmed, without costs. Respondent candidate was disqualified as a candidate in the Democratic primary election for the office of State Senator on a finding that he did not comply with the residency requirements of section 7 of article III of the State Constitution. No challenge was made to the signatures on the designating petitions themselves, and the petitions were validated insofar as they designated a committee to fill vacancies. Special Term declined to find fraudulent design in the residency errors and the Appellate Division unanimously affirmed. In these circumstances disqualification of a candidate does not invalidate the filed petitions as such in toto, and they remain valid to permit the named committee to fill vacancies to make an appropriate substitution (Election Law, § 6-148, subd 2). Where as here, a candidate is disqualified but there is no finding that either the petition or petition gathering process is tainted by fraud, the committee is empowered to make this substitution (see Matter of Grieco v Bader, 43 Misc.2d 245, affd 21 A.D.2d 751; Matter of Marley v Hamilton, 55 A.D.2d 864, mot for lv to app den 40 N.Y.2d 801). Where, on the other hand, the designating petition itself is "invalid", the result will be different (see Matter of Fotopoulos v Board of Elections, 45 N.Y.2d 807 [decided herewith]).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Motion for leave to appeal granted (August 30, 1978). Order affirmed, without costs.