Opinion
168 SSM 15
Decided September 9, 2002.
Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered September 6, 2002, which, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, entered in Bronx County (Robert Seewald, J.), denying an application to invalidate the substitution of respondent Diaz as candidate for Member of New York State Senate, 32nd Senatorial District, in the Democratic Party Primary Election to be held on September 10, 2002, and dismissing the proceeding, (2) granted the petition, (3) invalidated the substitution, and (4) enjoined and restrained respondent Commissioners of the Board of Elections from placing responent's name upon the official ballots in the primary election.
Matter of Espada v. Dias, 297 A.D.2d 497, reversed.
Submitted by Stanley Kalmon Schlein, for appellants.
Submitted by David L. Lewis, for respondents Espada, et al.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The Appellate Division order should be reversed, without costs, and the petition dismissed.
In an earlier proceeding brought pursuant to Election Law § 16-102, Supreme Court disqualified candidate Raysa Castillo on residency grounds. The present petition seeks to invalidate the certificate of substitution naming Ruben Diaz for Castillo.
Supreme Court explicitly determined that neither the petition nor the petition gathering process was tainted by fraud. In reversing as a matter of law, the Appellate Division neither rejected Supreme Court's factual findings nor made any substitute findings. The Appellate Division thus erred in reversing and granting the petition to invalidate. "Where as here, a candidate is disqualified but there is no finding that either the petition or petition gathering process is tainted by fraud, the committee [to fill vacancies] is empowered to make this substitution" (Owens v. Sharpton, 45 N.Y.2d 794, 796).
On review of submissions pursuant to section 500.4 of the Rules, order reversed, without costs, and petition dismissed, in a memorandum.