Opinion
August 30, 1985
Appeal from the Supreme Court, New York County (Blyn, J.).
These matters were remanded to us by the Court of Appeals for findings of fact. We find that in the proceeding in which Erazo and McCaffrey were principals, a stipulation was entered into between counsel for the respective parties withdrawing all objections and specifications and consenting that the Erazo designating petition be deemed valid. Notwithstanding this, we have before us another proceeding decided simultaneously herewith in which Angelo Del Toro, as an aggrieved candidate, is the petitioner resulting in a holding that the Erazo designating petition was invalid. In that matter, we have ruled that the Erazo designating petition is a valid petition. We find also that there was a waiver by Erazo of the transcript of the proceedings. While his attorney asserts that he did not waive the transcript, he never deposited a sum sufficient to defray the costs nor did he furnish a copy to this court (CPLR 5525 [a]). This we deem to be a waiver. Notwithstanding this we have been able to procure a portion of the stenographic transcript. Such portion of the transcript as has been transcribed is included in the record of proceedings before this court.
The reduction of the valid number of signatures on the petitions involved to a figure below 10,000, the minimum number necessary to constitute a valid petition, was dependent on the deduction of those signatures which Special Term excluded under the cover sheet rule. We find the cover sheet rule inapplicable to the situation here presented because the errors in the cover pages are insubstantial ( Matter of Franco v. Velez, 112 A.D.2d 875, affd 65 N.Y.2d 967; see also, Matter of Staber v. Fidler, 65 N.Y.2d 529). In light of the validity of these signatures, the total number of valid signatures exceeds the minimum required by law in each case. With respect to mispagination, we held in Matter of Farrell v. Morgan ( 112 A.D.2d 882, 883, that "[a]bsent some indication that the gaps [in pagination] are the result of some fraudulent act, it is manifestly unfair to penalize the signatories who, after all, have the greatest stake in the proper operation of the democratic process, for these occasional aberrations." We adhere to that holding in this case.
Accordingly, we find the designating petitions to be valid.
Concur — Carro, J.P., Bloom, Fein, Rosenberger and Ellerin, JJ.