Opinion
740.1 CAE 19–01006
05-30-2019
In the Matter of Jordan D. TOLES, Petitioner–Respondent, v. Bernice M. RADLE, Respondent–Appellant, and Erie County Board of Elections, Respondent-Respondent.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR RESPONDENT–APPELLANT. VANDETTE PENBERTHY, LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PETITIONER–RESPONDENT. MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR RESPONDENT–APPELLANT.
VANDETTE PENBERTHY, LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PETITIONER–RESPONDENT.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND WINSLOW, 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 invalidate a designating petition to place Bernice M. Radle (respondent) on the primary election ballot for the Democratic Party as a candidate for the City of Buffalo Common Council. While the proceeding was pending, respondent Erie County Board of Elections (Board) determined that the designating petition was invalid. In a subsequent attorney affirmation in the proceeding commenced by petitioner, respondent contended that the Board exceeded its ministerial authority in invalidating the designating petition, and requested that Supreme Court validate it. Supreme Court declined to validate the designating petition, and respondent appeals.
Inasmuch as respondent did not bring a petition to validate her designating petition, the court "acted properly in not validating signatures which had been declared invalid by the Board" ( Matter of Rodriguez v. Nieves, 242 A.D.2d 350, 350, 661 N.Y.S.2d 663 [2d Dept. 1997] ; see Matter of Krueger v. Richards, 59 N.Y.2d 680, 682–683, 463 N.Y.S.2d 413, 450 N.E.2d 219 [1983] ). Respondent's remaining contention concerning allegations of fraud is not properly before us. The court made no determination of fraud against her, and she is therefore not an aggrieved party with respect to that issue (see generally CPLR 5501, 5511 ; Matter of Carney v. Davignon, 289 A.D.2d 1096, 1097, 735 N.Y.S.2d 263 [4th Dept. 2001] ).