Matter of Purtell
v.
Kuczek

This case is not covered by Casetext's citator
Supreme Court, Montgomery CountyAug 5, 1985
129 Misc. 2d 166 (N.Y. Misc. 1985)
129 Misc. 2d 166492 N.Y.S.2d 909

August 5, 1985

Norberta Fuller Krupczak for petitioners.

John D. Bush for Joseph Kuczek and another, respondents.

William H. Mycek for John Sheckton and another, respondents.


The 14 petitioners herein are all candidates for the party position of member of the county committee of the Democratic Party in various election districts within the City of Amsterdam in Montgomery County.

All petitioners filed designating petitions which were invalidated by the Board of Elections on the ground that the insertion in the heading of the petition of the date of September 10 as the date when the next primary election is to be held was improper or incomplete in that the year 1985 did not follow September 10 and that, therefore, the petition did not contain a full and proper designation of the date of the next primary.

Election Law § 6-132 mandates that a designating petition contain the date of the primary election. The Court of Appeals has made it clear that while substantial compliance with the requirements of the Election Law as to details of form is acceptable, there must be strict compliance with statutory commands as to matters of prescribed content (Matter of Hutson v Bass, 54 N.Y.2d 772; Matter of Alamo v Black, 51 N.Y.2d 716; Matter of Higby v Mahoney, 48 N.Y.2d 15).

The lack of a complete date of the primary election is fatal and mandates the dismissal of the within 14 petitions. The date of the primary election is specifically prescribed by Election Law § 6-132 (1) and strict compliance with the content provisions of the statute is required (Matter of Braxton v Smolinski, 89 A.D.2d 1053; see also, Matter of Sedita v Smolinski, 89 A.D.2d 1052; Matter of O'Connor v Salerno, 105 A.D.2d 487).

It is equally clear that "September 10" without the year 1985 is not a date. A date is the point of time at which a transaction takes place, or is appointed to take place; a given point of time; a specified day of the month and year (Webster's International Dictionary 670 [2d ed]). "Accordingly, to comply with the requirements of the Election Law, the day, month and year * * * must appear upon the petition. Failure to specify the year constitutes a fatal defect." (In re Muldoon, 123 N.Y.S.2d 711, 712.)

Petitioners Diane Morrone and Ronald Wierzbicki contend that they were never properly challenged because objections were filed against Diane Marrone and Robert Wierzbicki. These contentions are without merit. There is no contention that notice was not timely, that the required information was not set forth or that these petitioners were prejudiced in any way. They obviously were made aware of the basis for disqualification and brought timely proceedings in court. Notice to candidates is not vital when the petitions are invalid on their face as these are (see, Matter of McGough v Todd, 51 Misc.2d 255).

Petitioner Joseph Purtell contends that one of the two election commissioners is running against him and that it was improper for said commissioner, Joseph Kuczek, to rule on his petition. This contention is without merit. First, the function of the Board of Elections is strictly ministerial; secondly, the fact that all 14 petitioners were similarly treated belies a claim of specific prejudice directed at Purtell; third, the petitioner did not object at the hearing before the Board of Elections and consequently, waived any claim of prejudice; finally, the court's review of the petition and determinations that it was properly invalidated eliminates this issue.

Petitioners aver that section 6-132 is unconstitutional relying upon Jefferson v Abrams (Sept. 6, 1984 [US Dist Ct, EDNY]). Said reliance is misplaced. I find no support in said decision for a determination that section 6-132 is unconstitutional. However, it is not necessary that the court reach the merits of this determination as the issue is not properly before the court. No notice has been given to the Attorney-General pursuant to CPLR 1012 (b) so that his office could timely appear pursuant to Executive Law § 71 in support of the statute's constitutionality.

Finally, several petitioners have served amended petitions requesting a write-in primary. The amended petitions were not timely served (Election Law § 16-102). Further, section 16-100 does not provide the court with the authority to make such orders as justice requires, since that language is conspicuously missing from the statute. Matter of Ramos v Alpert ( 41 A.D.2d 1012) and Matter of Hunting v Power ( 54 Misc.2d 120), both relied upon by petitioners, were decided prior to the enactment of section 16-100. If the matter were one of discretion, I would exercise my discretion against directing write-in primaries.

Upon all of the above, all petitions and amended petitions are dismissed.