Opinion
4950-06.
Decided August 7, 2006.
James E. Long, Esq., Albany, New York, Attorney For Petitioner-Candidate.
Hojnacki Guido, Delmar, NY, Attorney For Respondents-Objectors.
(Michael A. Avella, Esq, of counsel) Todd D. Valentine, Esq., Albany, New York, Attorney For Respondent New York State Board of Elections.
The petitioner has filed petitions nominating and designating him as a candidate for public office as a Member of the United States House of Representatives for the 24th Congressional District for the Independence Party of the State of New York at a primary election to be held on September 12, 2006. Objections and specifications were subsequently filed by the respondents-objectors. During proceedings held on August 2, 2006, the respondent State Board of Elections found that the petitions contained insufficient valid signatures and removed the petitioner's name from the primary ballot for said elective office. Petitioner has commenced the above-captioned proceeding pursuant to Election Law § 16-102 (1) to validate the petitions.
During an appearance on August 4, 2006, the parties advised the Court that they believed that they would be able to enter into a written stipulation with respect to the relevant issues in lieu of conducting a formal hearing. The parties have entered into the following stipulation:
"1.That the petitioner needs 705 valid signatures of the Independence Party members for a valid petition for public office of Member of the House of Representatives 24th Congressional District.
"2.That the State Board of Elections determined that there are 696 valid signatures of Independence party members.
"3.Respondents claim that 17 of those signatures are invalid by reason of Steven P. Mancuso, having notarized the signatures under such name while having been registered with the NY Secretary of State as a notary under the name of Steven P. Mancusco.
"4.Petitioners claim that the signatures on pages 40 41, totaling 24 signatures which were ruled invalid by the State Board are in fact valid as alleged in the Petition at page 11 and 12.
"The issues remaining for the court's determination are whether the name of the notary, Steven Mancuso, having been registered as Steven P. Mancusco invalidates the 17 signatures he witnesses (sic). If the answer is yes the petition should be dismissed.
"If the court finds the Mancuso notary issue does not invalidate the 17 signatures the Petitioner still needs to have the court validate the 24 signatures on pages 40 and 41 for the reasons set forth in the petition at paragraphs 11 and 12 for the relief in the Petition to be granted."
It is well settled that technical defects in the notarization of a document do not invalidate the official acts of a notary public ( see Executive Law § 137; Parkhill v. Cleary, 305 AD2d 1088 [4th Dept., 2003]). From the wording of paragraph 3 of the stipulation ( supra) there appears to be no dispute, that Stephen P. Mancuso and Stephen P. Mancusco are one and the same person; and that he was properly qualified as a notary public, although his name was apparently spelled incorrectly in records maintained by the New York State Department of State. The overriding consideration in this instance is whether pages 40 and 41 of the petition were properly notarized by a notary public as required under Election Law § 6-132 (3) ( see Matter of Brown v. Suffolk County Board of Elections, 264 AD2d 489 [2nd Dept., 1999]). A rose by any other name is still a rose The Court finds that the petitions were properly notarized under Election Law § 6-132 (3). Under the circumstances, the Court determines that the objection has no merit, and that the 17 signatures are valid.
William Shakespeare, paraphrased from Romeo and Juliet, Act II, Scene ii, 43.
Turning to pages 40 and 41 of the petition, it is alleged that the signatures on these pages are invalid by reason that the subscribing witness failed to insert his correct town or city of residence in the Witness Identification section of the petition. In Matter of Berkowitz v. Harrington ( 307 AD2d 1002 [2nd Dept., 2003]) it was held that the failure to include in the "Witness Identification Information" section of the petition the town or city and county of the subscribing witness was not sufficient, in and of itself, to warrant invalidation of the petition, where the complete address of the subscribing witness appeared elsewhere on the same page of the petition.
The respondents-objectors argue that the case of Matter of Stoppenbach v. Sweeney ( 98 NY2d 431) governs the situation here, in that the Court of Appeals held that compliance with Election Law § 6-130 constitutes a matter of substance and not of form. The Court discerns no basis upon which to expand the Stoppenbach decision beyond its specific holding. Moreover, the Court cannot ignore the fact that the Third Department recently held that the omission of such information in the "Witness Identification Information" section of the petition was an inconsequential violation, particularly where "the narrow violation at issue does not give rise to the possibility or inference of fraud" ( Matter of Curley v. Zacek, 22 AD3d 954 [3rd Dept., 2005], at p. 956). The Court finds that the 24 signatures contained on pages 40 and 41 of the petition are valid.
Election Law § 6-130 recites in its entirety as follows: "The sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed"
In Curley, as relevant here, the subscribing witness inserted his complete residence address in the "Statement of Witness" section of the petition. He indicated that he resided at 764 Saratoga Road, Apt. 20, Gansevoort, New York 12831. He did not fill in the "Witness Identification Information" section of the petition. An unknown individual subsequently inserted "Gansevoort" in the town/city portion of that section of the petition. Gansevoort is not a town in Saratoga County, but rather a hamlet located within the Town of Wilton. As noted, the Appellate Division found the error to be "inconsequential". In this instance, the town/city portion of the "Witness Identification Information" section of the petition indicates that the subscribing witness resides in Whitesboro which, while not a town, is located within Oneida County. The "Statement of Witness" section of the petition (as was the case in Curley, supra) contains a complete residence address for the subscribing witness.
In summary, the Court finds that the petition contains 720 valid signatures of Independence Party members designating the petitioner for nomination for the public office of Member of the House of Representatives 24th Congressional District. Since 705 valid signatures are required, the petition is found to be valid.
One further point must be addressed. Because there is no other designation for the Independence Party nomination for the 24th Congressional District, the petitioner requests that his name be placed on the ballot of the Independence Party for said office for the general election. In the absence of the presentation of any evidence or argument to the contrary, the Court discerns no reason why such relief should not be granted.
The Court concludes that the petition must be granted and the answer dismissed.
Accordingly, it is
ORDERED and ADJUDGED, that the petition is granted and the answer dismissed; and it is further
ORDERED and ADJUDGED, that the New York State Board of Elections certify petitioner Michael A. Arcuri as a candidate for the Public Office of Member of the United States House of Representatives for the 24th Congressional District for the Independence Party of the State of New York at the general election to be held on November 7, 2006.
This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the petitioner, who is directed to enter this Decision/Order/Judgment without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.