Opinion
August 14, 1984
Martin Connor and Thomas L. McMahon for respondents.
Martin Sulkow and Everett N. Hughes for petitioners.
Respondents move to dismiss this special proceeding, brought pursuant to article 16 of the Election Law, in which petitioners seek to validate their candidacies for election as member of the Democratic County Committee from various election districts in the 44th Assembly District. The petition is verified by petitioners' attorney who sets forth his verification pursuant to CPLR 3020 (subd [d], par 3), but does not set forth "the grounds of his belief as to all matters not stated upon his knowledge", as required by CPLR 3021. Respondents contend this proceeding is barred by petitioners' failure to submit the verified petition required by section 16-116 Elec. of the Election Law.
Jurisdiction to entertain a proceeding under article 16 of the Election Law requires timely service of a verified petition by a proper objector ( Matter of Diamond v Power, 21 A.D.2d 660). The section 16-116 Elec. of the Election Law requirement of a verified petition is a jurisdictional condition precedent ( Matter of Goodman v Hayduk, 64 A.D.2d 937, affd 45 N.Y.2d 804). "By 'verified petition' is meant a petition duly verified by a person who is entitled under the law to be a petitioner in the proceeding" ( Matter of Becker v Power, 207 Misc. 53, 54). The court therefore concludes that verification by an attorney rather than the party to the proceeding is not permissible in this case ( Matter of Sedita v Smolinski, 89 A.D.2d 1052, mot for lv to app den 57 N.Y.2d 605).
Assuming, arguendo, petitioners are correct in their contention that verification in a special proceeding under article 16 of the Election Law is governed by CPLR 3020, that would still not cure the defective verification here. As pointed out in Matter of Giambra v Commissioner of Motor Vehicles ( 46 N.Y.2d 743), where an attorney verifies a pleading pursuant to CPLR 3020 (subd [d], par 3), there must be careful compliance with CPLR 3021 in that the attorney must set forth the grounds of his belief as to all matters not stated upon his knowledge. That was not done here.
Matter of Ladore v Mayor of Vil. of Port Chester ( 70 A.D.2d 603), relied on by petitioners, is inapplicable here. A close reading of that case indicates that the respondents therein initially moved to dismiss based on failure of personal service and, when that failed, raised as an afterthought that there was no verification at all on the petition. The Ladore discussion concerning waiver of objection to the form of verification, in my opinion, is dicta, and was, in effect, overruled by Sedita ( supra).
The application is therefore granted and the petition is dismissed.