Matter of Nicolai v McKay

[*1] Matter of Nicolai v McKay 2007 NY Slip Op 52343(U) [17 Misc 3d 1139(A)] Decided on October 22, 2007 Supreme Court, Albany County O'Connor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2007
Supreme Court, Albany County

In the Matter of the Application of Francis A. Nicolai, A Candidate Aggrieved, Petitioner, v Frank McKay; GIULIO A. CAVALLO; DHYMALA N.VAZQUEZ; NEW YORK STATE INDEPENDENCE PARTY; WESTCHESTER COUNTY COMMITTEE OF THEINDEPENDENCE PARTY; ROCKLAND COUNTY COMMITTEE OF THE INDEPENDENCE PARTY; DUTCHESSCOUNTY COMMITTEE OF THE INDEPENDENCE PARTY;ORANGE COUNTY COMMITTEE OF THE INDEPENDENCE PARTY; PUTNAM COUNTY COMMITTEE OF THEINDEPENDENCE PARTY; and JOHN DOE and JANE DOE, -and-NEW YORK STATE BOARD OF ELECTIONS; WESTCHESTER COUNTY BOARD OF ELECTIONS;ROCKLAND COUNTY BOARD OF ELECTIONS;DUTCHESS COUNTY BOARD OF ELECTIONS;ORANGE COUNTY BOARD OF ELECTIONS; and PUTNAM COUNTY BOARD OF ELECTIONS,-and-ELAINE SLOBOD; WILLIAM SHERWOOD;RORY J. BELLANTONI, and JOHN CIAMPOLI, Respondents.



8181-07



SMITH, BUSS & JACOBS, LLP

Attorney for Petitioner

(Jeffrey D. Buss, Esq., of Counsel)

733 Yonkers Avenue, 2nd Floor

Yonkers, New York 10704

JOHN CIAMPOLI, ESQ.

Attorney for Respondents McKay, Cavallo,

Vazquez, New York State Independence Party,

Westchester County, Rockland County, Dutchess

County and Orange County Committees of the

Independence Party, Bellantoni and Sherwood

667 Broadway, Suite 202

Albany, New York 12207

VINCENT J. MESSINA, JR., ESQ.

Attorney for Respondents McKay, Cavallo,

Vazquez, New York State Independence Party,

Westchester County, Rockland County, Dutchess

County and Orange County Committees of the

Independence Party, Bellantoni, Sherwood

and Campioli

267 Carleton Avenue, Suite 301

Central Islip, New York 11722

A. JOSHUA EHRLICH, ESQ.

Attorney for Respondents McKay, New York

State Independence Party, Bellantoni and Slobod

P.O. Box 7273

Capitol Station

Albany, New York 12224

PAUL M. COLLINS, ESQ.

Attorney for Respondent New York

State Board of Elections

40 Steuben Street

Albany, New York 12207

CHARLENE M. INDELICATO, ESQ.

County Attorney for the County of Weschester

Attorney for Respondent Westchester County

Board of Elections

(Matthew Gallagher, Esq., of Counsel)

148 Martine Avenue, Room 600White Plains, New York 10601

PATRICIA ZUGIBE, ESQ.

County Attorney for the County of Rockland

Attorney for Respondent Rockland County

Board of Elections

(Fina Del Principio, Esq., of Counsel)

Allison-Parris County Office Building11 New Hempstead Road

New City, New York 10956

DAVID L. DARWIN, ESQ.

County Attorney for the County of Orange

Attorney for Respondent Orange County

Board of Elections

(Sharon Worthy-Spiegl, Esq., of Counsel)

Government Center, 255 Main Street

Goshen, New York 10924

SANTANGELO RANDAZZO & MANGONE LLP

Attorney for Respondent Putnam County

Board of Elections

(Anthony J. Mangone, Esq., of Counsel)

51 Broadway

Hawthorne, New York 10532-1103

Kimberly A. O'Connor, J.

By Order to Show Cause (Lubell, J.) dated October 5, 2007, petitioner Francis A. Nicolai challenges the nominations delineated in the Certificate of Nomination filed by the Independence Party with the respondent New York State Board of Elections, which nominated respondents Elaine Slobod, William Sherwood and Rory J. Bellantoni candidates for the public office of Supreme Court Justice for the Ninth Judicial District in the State of New York for the general election to be held on November 6, 2007. Respondents oppose this challenge.

In their responsive papers, respondents MacKay, Cavallo, Vazquez, Slobod, Sherwood, Bellantoni, Ciampoli, New York State Independence Party, Westchester County Independence Party, Dutchess County Independence Party, and Orange County Independence Party raised a [*2]number of procedural and jurisdictional defects in the Order to Show Cause that are the subject of these proceedings. Respondent New York State Board of Elections also alleged certain procedural defects that were more fully explored and stated at the hearing on October 19, 2007. Based upon the complexity of the objections and responses by the respondents, this Court requested oral argument by the parties at the hearing on October 19, 2007, and invited the parties to make further submissions after the completion of the oral argument so that the procedural and jurisdictional issues could be addressed. This Decision and Order addresses those procedural and jurisdictional arguments raised by respondents and upon which the Court heard oral argument by both sides.

DISCUSSION

A.STANDING

The Court's analysis in this case must necessarily begin with consideration of whether petitioner has standing to bring this special proceeding. Petitioner Nicolai alleges that he has standing in this proceeding as an "aggrieved candidate" under the Election Law and as a Democratic Party candidate. Respondents challenge the petition on the ground that petitioner does not allege sufficient facts to establish his standing.

The seminal case in restricting the opportunity of an aggrieved candidate to challenge a nomination is the Matter of Wydler v. Cristenfeld (35 NY2d 719 [1974]). In that case, the Court of Appeals held that the party authorization process adopted by the Democratic Party for the substitution of a congressional candidate was immune from challenge by the opposing Republican candidate. Specifically, the Court stated that "[the authorization] provision has as its purpose the regulation of the affairs of a political party and is intended to have as its beneficiaries, only members of that political party or one who asserts that he [or she] was entitled to the authorization thereunder. It is of no interest to others that formalities have not been followed, so long as the purpose of [the statute] is not frustrated" (Matter of Wydler v. Cristenfeld, 35 NY2d at 720 [emphasis added]).

In the Matter of Gross v. Hoblock (6 AD3d 933 [2004]), the Third Department addressed standing in the context of a challenge to a party nomination by an opponent based upon a failure to file a certificate of authorization as required by the Election Law. In that case, the court summarized its view of standing by stating: "[T]he standing issue ultimately turns upon whether the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates, or rather, to a legislatively mandated requirement of the Election Law . . . . Thus, where the challenge is directed to the manner in or methods by which a given party . . . votes on or designates a particular candidate, a nonparty candidate will not be deemed aggrieved, as he or she has no interest in whether the formalities of that process have been followed . . . . Where, however, the challenge is to a legislatively mandated requirement of the Election Law . . . , the interests involved . . . transcend the mere regulation of the affairs of a political party . . . and standing will lie" (Matter of Gross v. Hoblock, 6 AD3d at 935-936 [citations and internal quotations omitted]; see Matter of Stempel v. Albany County Bd. of Elections, 97 AD2d 647, 648 [3d Dep't 1983], aff'd 60 NY2d 801 [1983]; Matter of Koppell v. Garcia, 275 AD2d 587, 588 [3d Dep't 2000]; Matter [*3]of Martin v. Tutunjian, 89 AD2d 1034 [3d Dep't 1982]; Matter of Liepshutz v. Palmateer, 112 AD2d 1098, 1100 [3d Dep't 1985]; Matter of Rowles v. Orsini, 309 AD2d 1307, 1308 [4th Dep't 2003]); Matter of Breslin v. Conners, 4 Misc 3d 952, 958-959 [Sup. Ct. Albany County 2004]).

Here, petitioner Nicolai is not a member of the Independence Party and he has not alleged that he is a member of the Independence Party (Matter of Wydler v. Cristenfeld, supra; see Nemoyer v. New York State Bd. of Elections, 125 Misc 2d 1054, 1055-1056 [Sup. Ct. Albany County 1984]). Furthermore, petitioner Nicolai has not alleged, either in his papers or at the hearing of this matter, that he is entitled to the nomination of the Independence Party (see id.; Matter of Rowles v. Orsini, supra; Matter of Stempel v. Albany County Bd. of Elections, supra; Matter of Wydler v. Cristenfeld, supra), or that there has been fraud or irregularity such that it is impossible to determine who was rightfully nominated. Moreover, there is no proof in petitioner's papers, offered at the hearing of this matter, or in the record before the Court that the nominations made at the convention did not represent the will of the Independence Party (see Matter of Koppell v. Garcia, supra, citing Matter of Wydler v. Cristenfeld, supra). Finally, notwithstanding petitioner's contentions to the contrary, the challenge in this proceeding is to the internal affairs and operating functions of the Independence Party in its nomination of candidates for the public office of Supreme Court Justice in the Ninth Judicial District, and not to legislatively mandated requirements of the Election Law (see Matter of Koppell v. Garcia, supra; Matter of Stempel v. Albany County Bd. of Elections, supra; Matter of Wydler v. Cristenfeld, supra; cf. Matter of Martin v. Tutunjian, supra & Matter of Liepshutz v. Palmateer, supra).

Under these circumstances, petitioner Nicolai is not an "aggrieved candidate" under Section 16-102 of the Election Law, and lacks stacks standing to challenge the validity of the Independence Party's Certificate of Nomination, nominating respondents Slobod, Sherwood and Bellantoni for the public office of Justice of the Supreme Court of the State of New York, Ninth Judicial District in the November 6, 2007 general election. . For these reasons, the Court grants respondents' motion to dismiss the petition.

B.SERVICE OF PROCESS

Respondents have challenged service of process in this case and are alleging a jurisdictional defect as a result. Upon review of the documentation submitted by petitioner from Federal Express that was attached to the petition, the Court is satisfied that the petitioner complied with the method and time of service prescribed in the Order to Show Cause. As such, respondents' motion to dismiss on the grounds of improper service of process is denied.

The remaining issues raised by the parties need not be addressed in light of the foregoing.

Accordingly, it is hereby

ORDERED, that respondents' motion to dismiss the petition is granted for the reasons stated herein.

This memorandum shall constitute the Decision and Order of the Court. All papers, including this Decision and Order, are being returned to the attorneys for respondents McKay, Giulio A. Cavallo, Dhyalma N. Vazquez, Elaine Slobod, William Sherwood, Rory J. Bellantoni, John Ciampoli, New York State Independence Party, Westchester County Committee of the Independence Party, Rockland County Committee of the Independence Party, Dutchess County Committee of the Independence Party and Orange County Committee of the Independence Party. [*4]The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED.

ENTER.

Dated:October 22, 2007

Albany, New York

HON. KIMBERLY A. O'CONNOR

Acting Supreme Court Justice