Matter of Goodell v Parment

Matter of Goodell v Parment 2010 NY Slip Op 06455 [76 AD3d 797] August 20, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

In the Matter of Andrew W. Goodell, Appellant, v William L. Parment et al., Respondents, and Nancy G. Barger et al., Respondents.

—[*1] Goodell & Rankin, Jamestown (R. Thomas Rankin of counsel), for petitioner-appellant.

Frederick A. Larson, Jamestown, for respondent-respondent Nancy G. Bargar.

Law Office of Michael R. Cerrie, Dunkirk (Michael R. Cerrie of counsel), for Norman Green, Election Commissioner of respondent Chautauqua County Board of Elections.

Michael J. Sullivan, Fredonia, for Brian Abram, Election Commissioner of respondent Chautauqua County Board of Elections.

Appeal from an order of the Supreme Court, Chautauqua County (John T. Ward, A.J.), entered August 6, 2010 in a proceeding pursuant to the Election Law. The order dismissed the petition.

It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Chautauqua County, for a hearing in accordance with the following memorandum: Petitioner commenced this proceeding seeking, inter alia, to invalidate the certificate of declination filed by respondent William L. Parment with respect to Parment's designation as the Independence Party candidate for the office of Member of the State Assembly for the 150th District and to invalidate the certificate of substitution naming respondent Nancy G. Bargar as the Independence Party candidate for that office. Petitioner alleged that Parment never filed the certificate of declination pursuant to the Election Law but, rather, that it was mailed to Norman Green, the Democratic Election Commissioner of respondent Chautauqua County Board of Elections (Board), who filed the certificate of declination one week after the deadline. Petitioner thus further alleged that the Board improperly recorded the certificate of declination and accepted the certificate of substitution. Supreme Court dismissed the petition.

We conclude that the record before us is insufficient to determine whether the certificate of declination was properly filed pursuant to the Election Law. We therefore hold the case, reserve decision and remit the matter to Supreme Court for an expedited hearing at which [*2]Parment, the Election Commissioners and other relevant employees of the Board, as well as any other witness may testify concerning the delivery and handling of the certificate of declination to and by the Board. Present—Peradotto, J.P., Lindley, Pine and Gorski, JJ.