Opinion
840.1 CAE 20-01001
09-14-2020
In the Matter of Tracy MITRANO, Petitioner-Respondent, v. NEW YORK STATE BOARD OF ELECTIONS, Peter S. Kosinski, Douglas A. Kellner and Andrew J. Spano, Commissioners of and Constituting the New York State Board of Elections, et al., Respondents-Respondents, and Michael Palmesano, Respondent-Appellant.
JOSEPH T. BURNS, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT. LAW OFFICES OF JESSICA A. KULPIT, BUFFALO (JESSICA A. KULPIT OF COUNSEL), FOR PETITIONER-RESPONDENT.
JOSEPH T. BURNS, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.
LAW OFFICES OF JESSICA A. KULPIT, BUFFALO (JESSICA A. KULPIT OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: PERADOTTO, J.P., CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Election Law § 16-102 seeking to validate a designating petition to place her on the general election ballot for the Working Families Party as a candidate for the office of Representative in Congress from the 23rd Congressional District of New York. Michael Palmesano (respondent) appeals from an order granting the validation petition following a hearing, and we affirm. Contrary to respondent's contention, Supreme Court did not err in conducting a hearing, and the record supports the court's determination that there had been no "alteration" to the date accompanying a particular signature (see § 6-134 (6); Matter of McShane v. Coveney , 37 N.Y.2d 789, 790-791, 375 N.Y.S.2d 103, 337 N.E.2d 609 [1975] ; Matter of Schroeder v. Smith , 21 A.D.3d 511, 512, 800 N.Y.S.2d 224 [2d Dept. 2005] ; Matter of Jarczynski v. McNab , 96 A.D.2d 919, 919, 465 N.Y.S.2d 846 [2d Dept. 1983] ). The restoration of that signature provided petitioner with the requisite number of signatures. Because respondent failed to challenge the scope of the hearing, his further contention that the court should have invalidated additional signatures on the designating petition that were not the subject of that hearing is not properly before us (see generally Matter of Hicks v. Walsh , 76 A.D.3d 773, 774, 906 N.Y.S.2d 661 [3d Dept. 2010] ; Orellano v. Samples Tire Equip. & Supply Corp ., 110 A.D.2d 757, 758, 488 N.Y.S.2d 211 [2d Dept. 1985] ).