Opinion
1256.2 CAE 18–01945
10-25-2018
In the Matter of Edward F. COX and Jeffrey C. Zeplowitz, Petitioners–Respondents, v. Francina J. SPOTH, Erie County Democratic Party, Jeremy J. Zellner, Respondents–Appellants, Erie County Board of Elections, Respondent–Respondent, et al., Respondents.
JEROME D. SCHAD, WILLIAMSVILLE, FOR RESPONDENTS–APPELLANTS. BOUVIER LAW LLP, BUFFALO (JOSEPH P. HEINS OF COUNSEL), FOR PETITIONERS–RESPONDENTS. MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT.
JEROME D. SCHAD, WILLIAMSVILLE, FOR RESPONDENTS–APPELLANTS.
BOUVIER LAW LLP, BUFFALO (JOSEPH P. HEINS OF COUNSEL), FOR PETITIONERS–RESPONDENTS.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court, Erie County ( Paul Wojtaszek, J.), entered October 12, 2018 in a proceeding pursuant to Election Law article 16. The order, inter alia, granted the petition and a determined that the certificate of nomination of Francina J. Spoth as a Democratic Party candidate for the public office of Town Clerk of the Town of Amherst is invalid.
It is hereby ORDERED that said appeal insofar as taken by Jeremy J. Zellner is unanimously dismissed and the order is affirmed without costs.
Memorandum: Petitioners commenced this proceeding pursuant to Election Law § 16–102 seeking an order invalidating a certificate of nomination nominating respondent Francina J. Spoth as a Democratic Party candidate for the public office of Town Clerk of the Town of Amherst, and restraining respondent Erie County Board of Elections (Board), consisting of commissioners Ralph M. Mohr and Jeremy J. Zellner, from placing Spoth on the general election ballot. Petitioners alleged that respondent Erie County Democratic Party (Democratic Party) violated Election Law § 6–116 because the outgoing Democratic Party Executive Committee (Executive Committee), rather than the "last elected" incoming Executive Committee, issued the certificate of nomination. Supreme Court granted the petition, and Spoth, Jeremy J. Zellner, and the Democratic Party appeal. We affirm.
Initially, we note that Zellner, in his individual capacity, is not a party to this proceeding and lacks authority to act unilaterally on behalf of the Board (see generally Matter of Scannapieco v. Riley, 132 A.D.3d 705, 705–706, 17 N.Y.S.3d 323 [2d Dept. 2015] ). Thus, we dismiss the appeal to the extent that it was purportedly taken by Zellner (see Skay v. Public Lib. of Rockville Ctr., 238 A.D.2d 397, 397, 657 N.Y.S.2d 553 [2d Dept. 1997] ).
Contrary to the contention of Spoth and the Democratic Party (respondents-appellants), we conclude that petitioners were not required to serve Zellner with a copy of the order to show cause and petition. As noted, Zellner was not named as a party to this proceeding in his individual capacity and, instead, was named only in his official capacity as a commissioner of the Board. Inasmuch as the record establishes that petitioners served the Board and the other named respondents with process, the court properly determined that all named respondents were served.
We further conclude that petitioners had standing to commence this proceeding, notwithstanding the fact that neither petitioner is a member of the Democratic Party, because petitioner Edward F. Cox is the chairman of a party committee, petitioner Jeffery C. Zeplowitz is an aggrieved candidate, and petitioners' challenge is based on the alleged failure of the Democratic Party to comply with the Election Law and not on a failure to comply with the internal rules of the Democratic Party or the Executive Committee (see Election Law § 16–102[1] ; Matter of Ciccotti v. Havel, 186 A.D.2d 979, 979, 588 N.Y.S.2d 440 [4th Dept. 1992], lv denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633 [1992] ; see also Matter of Liepshutz v. Palmateer, 112 A.D.2d 1098, 1099–1100, 493 N.Y.S.2d 233 [3d Dept. 1985], affd 65 N.Y.2d 963, 494 N.Y.S.2d 108, 484 N.E.2d 137 [1985] ; Matter of Lavell v. Baker, 153 A.D.3d 1135, 1136, 60 N.Y.S.3d 736 [4th Dept. 2017], lv dismissed and denied 29 N.Y.3d 1100, 59 N.Y.S.3d 737, 81 N.E.3d 1217 [2017] ; Matter of Swarts v. Mahoney, 123 A.D.2d 520, 520, 507 N.Y.S.2d 90 [4th Dept. 1986], lv. denied 68 N.Y.2d 605, 506 N.Y.S.2d 1029, 497 N.E.2d 968 [1986] ). Moreover, we conclude that Cox's failure to verify the petition is of no moment because he is united in interest with Zeplowitz, who did verify the petition (see Matter of Glowacki v. Smolinski, 89 A.D.2d 1053, 1053, 454 N.Y.S.2d 563 [4th Dept. 1982], lv denied 57 N.Y.2d 605, 454 N.Y.S.2d 1030, 440 N.E.2d 1341 [1982] ; see generally CPLR 3020[d] ; Matter of McKinney v. Relin, 197 A.D.2d 839, 839, 602 N.Y.S.2d 247 [4th Dept. 1993], lv dismissed 82 N.Y.2d 748, 602 N.Y.S.2d 806, 622 N.E.2d 307 [1993] ).
We reject respondents-appellants' contention that petitioners' failure to join the Executive Committee as a necessary party requires dismissal of the petition. Although the certificate of nomination was filed by the outgoing Executive Committee and petitioners named instead the Democratic Party as a respondent to this proceeding, we conclude that the Executive Committee's interests are "adequately represented" by the Democratic Party ( Matter of Marafito v. McDonough, 153 A.D.3d 1123, 1125, 62 N.Y.S.3d 546 [3d Dept. 2017] ; see Matter of Max v. Ward, 107 A.D.3d 1597, 1599, 967 N.Y.S.2d 557 [4th Dept. 2013] ; Matter of Snell v. Young, 88 A.D.3d 1149, 1150, 931 N.Y.S.2d 201 [3d Dept. 2011], lv denied 17 N.Y.3d 715, 2011 WL 5142048 [2011] ).
Finally, we reject respondents-appellants' contention that the certificate of nomination was valid. "With the election of a new County Committee in a primary election, the old County Committee [becomes] functus officio and ‘no rule of the old county committee could extend the authority of its executive committee to continue to exercise functions in substantial matters after their successors as a county committee had been elected’ " ( Matter of Mazur v. Kelly, 170 A.D.2d 1037, 1038, 566 N.Y.S.2d 180 [4th Dept. 1991], lv denied 77 N.Y.2d 804, 568 N.Y.S.2d 912, 571 N.E.2d 82 [1991] ). Nonetheless, an outgoing executive committee has the authority to file a certificate of nomination if it was "effectively impossible to canvass and certify the newly elected committee members, convene an organizational meeting, elect a [new executive committee], and file a proper certificate of nomination" within the applicable time frame ( Matter of Settineri v. DiCarlo, 197 A.D.2d 724, 728, 605 N.Y.S.2d 95 [2d Dept. 1993, Balletta, J.P., dissenting], revd on dissenting op below 82 N.Y.2d 813, 816, 604 N.Y.S.2d 546, 624 N.E.2d 683 [1993] ).
Here, the primary election took place on September 13, 2018, the vacancy in the public office of Town Clerk of the Town of Amherst occurred on September 18, 2018, and the outgoing Executive Committee filed the certificate of nomination on September 19, 2018 even though the 14–day deadline by which to file a certificate of nomination was October 2, 2018 (see Election Law § 6–158[6] ). The Democratic Party held its organizational meeting on September 22, 2018, thus demonstrating that its newly elected committee members had been canvassed and certified (see generally Election Law §§ 2–112[1] ; 9–200 [1]; Settineri, 197 A.D.2d at 728, 605 N.Y.S.2d 95 ). The subcommittee meetings, however, could be held only after the organizational meeting and on four days' written notice, and we therefore agree with respondents-appellants that the subcommittee meetings could have been held no earlier than September 26, 2018. Thus, the Democratic Party had six days within which to convene its incoming Executive Committee and file a proper certificate of nomination, yet it failed to do so.
We note that the Democratic Party could have held its organizational meeting on September 14, 2018, the day after the primary election, as the Republican and Conservative parties did. Although the outgoing Town Clerk publicly announced in August 2018 that she would be resigning effective September 18, 2018, the Democratic Party waited until September 22 to hold its organizational meeting, thereby shortening by eight days the time within which it could file a proper certificate of nomination.
Inasmuch as the record establishes that it was not "effectively impossible" to timely convene an incoming Executive Committee, we conclude that the court properly invalidated the certificate of nomination (cf. Settineri, 197 A.D.2d at 726–728, 605 N.Y.S.2d 95 ).