Matter of Gammerman v. Bd. of Elections of the City of New York

57 N.Y.2d 888 (1982)

In the Matter of Ira Gammerman et al., Appellants, v. Board of Elections of the City of New York et al., Respondents. Shirley Levittan et al., Proposed Intervenors-Respondents.

Court of Appeals of the State of New York.

Argued October 15, 1982.

Decided October 15, 1982.

Paul H. Asofsky for Ira Gammerman and others, appellants.

Frederick A. O. Schwarz, Jr., Corporation Counsel (Leonard Koerner of counsel), for Board of Elections of the City of New York, respondent.

Herbert Rubin for Jack Rosenberg and others, respondents.

Peter C. Hein for intervenors-respondents.

Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER. Dissent: Judge FUCHSBERG.

Order affirmed, without costs. We agree with the Appellate Division that the defect of late filing is not curable for the reasons assigned.

Judge FUCHSBERG dissents and votes to reverse in the following memorandum: The drastic result in this case is the consequence of the harsh rule this court enunciated in such cases as Matter of Rutter v Coveney (38 N.Y.2d 993) and Matter of Higby v Mahoney (48 N.Y.2d 15). Reiterating the views I expressed in those cases, I would find an exception for the extraordinary circumstances which confront us now and reverse.