Opinion
2011-08-18
In the Matter of Clifton DIXON, Appellant,v.Matthew J. CLYNE et al., as Commissioners of the Albany County Board of Elections, Respondents.
Clifton Dixon, Albany, appellant pro se.Matthew J. Clyne, Albany County Board of Elections, Albany, for respondents.Before: MERCURE, J.P., PETERS, MALONE JR. and KAVANAGH, JJ.
PER CURIAM.
Appeal from an order of the Supreme Court (Lynch, J.), entered August 8, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to Election Law § 16–102, to declare valid the designating petition naming petitioner as the Independence Party candidate for the office of Albany County Legislator for the 3rd Legislative District in the September 13, 2011 primary election.
Petitioner filed a designating petition purporting to nominate him as an Independence Party candidate for the office of Albany County Legislator for the 3rd Legislative District in the primary election to be held on September 13, 2011. As such, he was required to file a properly executed certificate of acceptance with the Albany County Board of Elections no later than July 18, 2011 ( see Election Law § 6–146[1]; § 6–158[2] ). He failed to do so, resulting in the Board declaring the designation to be null and void ( see Election Law § 1–106[2]; § 6–146[1] ). Petitioner thereafter commenced this proceeding to compel his inclusion on the primary ballot and, following joinder of issue, Supreme Court dismissed the petition.
Petitioner appeals and we affirm. Election Law § 6–146(1) is facially constitutional and, contrary to petitioner's argument, we are unpersuaded that it offends his rights to due process or equal protection under the facts of this case ( see U.S. Const., 14th Amend, § 1; Unity Party v. Wallace, 707 F.2d 59, 61–64 [2d Cir.1983]; Matter of Carnahan v. Ward, 44 A.D.3d 1249, 1250, 848 N.Y.S.2d 458 [2007] ). As Supreme Court aptly noted, petitioner was
not misled into believing that no additional paperwork was required when he filed his designating petition ( cf. Hirschfeld v. Board of Elections of City of N.Y., 799 F.Supp. 394, 394–395 [S.D.N.Y.1992]; Williams v. Sclafani, 444 F.Supp. 906, 911–914 [S.D.N.Y.1978], affd. sub nom. Williams v. Velez, 580 F.2d 1046 [2d Cir.1978] ). Indeed, he was well aware that a certificate of acceptance was required, and admittedly inquired into its whereabouts before receiving the Board's correspondence advising him of the requirement. Supreme Court thus correctly dismissed the petition ( see Matter of Rhodes v. Salerno, 90 A.D.2d 587, 588, 456 N.Y.S.2d 156 [1982], affd. 57 N.Y.2d 885, 456 N.Y.S.2d 45, 442 N.E.2d 443 [1982]; Matter of Sheehan v. Aylward, 84 A.D.2d 602, 603, 444 N.Y.S.2d 260 [1981], affd. 54 N.Y.2d 934, 445 N.Y.S.2d 138, 429 N.E.2d 816 [1981] ).
Petitioner's remaining arguments have been considered and, to the extent they are properly before us, found to be without merit.
ORDERED that the order is affirmed, without costs.
MERCURE, J.P., PETERS, MALONE JR. and KAVANAGH, JJ., concur.