Matter of Quinn v Erie County Bd. of Elections

Matter of Matter of Quinn v Erie County Bd. of Elections 2014 NY Slip Op 05911 Decided on August 20, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 20, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.
834 CAE 14-01402

[*1]IN THE MATTER OF MICHAEL P. QUINN AND MARK W. KUMIEGA, PETITIONERS-RESPONDENTS,

v

ERIE COUNTY BOARD OF ELECTIONS, DENNIS E. WARD AND RALPH MOHR, AS COMMISSIONERS, ERIE COUNTY BOARD OF ELECTIONS, RESPONDENTS-APPELLANTS, ET AL., RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered August 11, 2014 in a proceeding pursuant to Election Law article 16. The order granted the petition to validate a joint designating petition and directed that petitioners be placed on the primary election ballot.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

JAMES OSTROWSKI, BUFFALO, FOR PETITIONERS-RESPONDENTS.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Petitioners commenced this proceeding seeking to validate their joint designating petition for the position of Erie County Democratic Committee Member, Town of Hamburg, District 11. We conclude that Supreme Court erred in granting the petition, and we therefore reverse the order and dismiss the petition. "Election Law § 6-132 (2) requires that each sheet of a designating petition must contain a statement of a subscribing witness which shall be dated and signed by the witness. The date is a matter of prescribed content and therefore strict compliance is required" (Matter of MacKay v Cochran , 264 AD2d 699, 699-700). Here, it is undisputed that the date of the subscribing witness's authenticating statement on the first sheet of the designating petition is June 7, 2014, i.e., 18 days before the June 25, 2014 date of the signatures collected on that first sheet. It is also undisputed that without the signatures on that first sheet, the designating petition does not contain the requisite number of signatures. Because "all signatures on the petition which [a]re dated after the authenticating statement [are] void" (Matter of Weiss v Mahoney , 49 AD2d 796, 796; see Matter of Byrnes v Board of Elections of the County of Nassau , 134 NYS2d 257, 261, affd 284 App Div 847, affd 307 NY 816), the signatures on the first sheet of the designating petition are void, and respondent Erie County Board of Elections therefore properly rejected the designating petition. Although petitioners could have filed petitioner Mark W. Kumiega's affidavit attesting to his purported mistake on or before the last day provided by law for filing a designating petition, they failed to do so, and Kumiega's affidavit, which accompanied the petition, was therefore "not properly cognizable" by the court (Matter of Sortino v Chiavaroli , 59 AD2d 644, 644, affd 42 NY2d 982).

Entered: August 20, 2014

Frances E. Cafarell

Clerk of the Court