Opinion
2002-07671, 2002-07672
Argued August 27, 2002.
August 28, 2002.
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petitions designating Marilyn O'Grady as a candidate in a primary election to be held on September 10, 2002, for the nominations of the Republican and Conservative Parties, respectively, as their candidate for the public office of Member of the United States House of Representatives for the 4th Congressional District, Marilyn O'Grady appeals from (1) an order of the Supreme Court, Nassau County (Roberto, J.), dated August 16, 2002, which denied her motion to dismiss the proceeding on the ground that the petition was not properly verified and struck her second affirmative defense, and (2) a final order of the same court, dated August 20, 2002, which, upon confirming the report of a referee (Dana, R.), granted the petition, invalidated the appellant's designating petitions, and directed that the name of Marilyn O'Grady be removed from the ballots of the Republican and Conservative Parties.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
ORDERED that the appeal from the order dated August 16, 2002, is dismissed; and it is further,
ORDERED that the final order is reversed, on the law, without costs or disbursements, the order dated August 16, 2002, is vacated, the motion to dismiss the proceeding is granted, and the proceeding is dismissed.
The appeal from the intermediate order dated August 16, 2002, must be dismissed because the right of direct appeal therefrom terminated with the entry of the final order in the proceeding (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the final order (see CPLR 5501[a][1]).
The sole issue before us is whether the instant proceeding was properly commenced. The parties do not argue the merits.
The petition was not verified as mandated by Election Law § 16-116. The requirement is jurisdictional in nature and cannot be cured by amendment (see Matter of Goodman v. Hayduk, 45 N.Y.2d 804).
We further note that our determination will not disenfranchise any voters (cf. Matter of Rose v. Smith, 220 A.D.2d 922).
SMITH, J.P., GOLDSTEIN, MASTRO and RIVERA, JJ., concur.
I would affirm the final order granting the petition. In my view the petitioner's failure to properly verify his petition does not require dismissal of the instant proceeding. It is true that Election Law § 16-116 requires that a proceeding commenced under the Election Law must be by verified petition and that this requirement has been strictly adhered to and deemed jurisdictional in nature (see Matter of Goodman v. Hayduk, 45 N.Y.2d 804, 806; Vaughn v. Withers, 153 A.D.2d 712). Under the particular circumstances of this case, however, a different result should obtain.
Here, the petitioner duly swore to the contents of the petition, and although there was no jurat, it was acknowledged by the notary/attorney before whom the petitioner took his oath and offered his sworn statement, which obviated any prejudice to the appellant or possibility of fraud (see Matter of Rose v. Smith, 220 A.D.2d 922, 923). In addition it is the petitioner, not the appellant, who would be prejudiced by dismissal of this proceeding, because as a result a candidate with an improper designating petition would be allowed to remain on the ballot.