Opinion
No. 894 CAE 07-01706.
August 22, 2007.
Appeal from an order (denominated order and judgment) of the Supreme Court, Erie County (John A. Michalek, J.), entered August 16, 2007 in a proceeding pursuant to Election Law article 16. The order dismissed the petition.
James Ostrowski, Buffalo, For Petitioner-Appellant. Hodgson Russ Llp, Buffalo (Michael B. Risman Of Counsel), For Respondents-Respondents Barbara Miller-Williams, Candidate, and Mark A. Smalls, Objector.
Before: Present — Scudder, P.J., Hurlbutt, Martoche, Smith and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly dismissed the petition seeking to direct the Erie County Board of Elections (Board of Elections) to place petitioner's name on the ballot for the Democratic primary election to be held on September 18, 2007. Petitioner contends that the court erred in agreeing with the Board of Elections that 41 signatures collected by a certain witness were invalid because he listed an incorrect residence on the sheets of the designating petition containing the signatures that he collected and thus that petitioner's designating petition lacked the requisite number of valid signatures. We reject that contention. The witness listed the address of a residence that previously was owned by his mother but was presently owned by an individual unknown to the witness. According to the testimony of the witness at the hearing on the petition, although his previous neighbors occasionally delivered mail to him that was erroneously delivered to that address, he listed that address because he did not own or rent a residence and was residing in the back of petitioner's campaign headquarters when he collected the signatures at issue. The record thus supports the court's determination that the address listed by the witness on the designating petition was a residence address with which he no longer had "legitimate, significant and continuing attachments" and thus that the signatures collected by that witness were invalid ( Matter of Ferguson v McNab, 60 NY2d 598, 600; see Election Law § 6-132; Matter of Lemishow v Black, 63 NY2d 684; Matter of Isabella v Hotaling, 207 AD2d 648, 650, lv denied 84 NY2d 801).