Opinion
2002-07702
Argued August 27, 2002.
August 28, 2002.
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petition designating Steven Irace as a candidate in the primary election to be held September 10, 2002, for the nomination of the Republican and Conservative Parties, respectively, as their candidate for the public office of Member of the United States House of Representatives for the 4th Congressional District, Steven Irace appeals, as limited by his brief, from so much of a final order of the Supreme Court, Nassau County (Roberto, J.), dated August 20, 2002, as, upon confirming the report of a referee (Shifrin, R.), determined that the petition was properly verified, struck the appellant's first affirmative defense, granted that branch of the petition which was to invalidate the petition designating the appellant as a candidate of the Republican party, and directed that his name be removed from the ballot of the Republican Party.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
ORDERED that the final order is reversed insofar as appealed from, without costs or disbursements, the appellant's first affirmative defense is reinstated, and that branch of the petition which was to remove the appellant's name from the ballot of the Republican Party is denied.
The sole issue before us is whether the instant proceeding was properly commenced. The parties do not argue the merits.
The petition was not verified as mandated by Election Law § 16-116. The requirement is jurisdictional in nature and cannot be cured by amendment (see Matter of Goodman v. Hayduk, 45 N.Y.2d 804).
We further note that our determination will not disenfranchise any voters (cf. Matter of Rose v. Smith, 220 A.D.2d 922).
SMITH, J.P., GOLDSTEIN, MASTRO and RIVERA, JJ., concur.
I would affirm the final order insofar as appealed from. It is true that Election Law § 16-116 requires that a proceeding commenced under the Election Law must be by verified petition and that this requirement has been strictly adhered to and deemed jurisdictional in nature (see, Matter of Goodman v. Hayduk, 45 N.Y.2d 804, 806; Vaughn v. Withers, 153 A.D.2d 712). Under the particular circumstances of this case, however, a different result should obtain.
Contrary to the appellants' contention, that branch of the petition which was to invalidate his designating petition as a candidate for the Republican Party was properly verified. The petitioner duly swore to the contents of the petition, and although there was no jurat, it was acknowledged by the notary/attorney before whom the petitioner took his oath and offered his sworn statement, which obviated any prejudice to the appellant or possibility of fraud (see, Matter of Rose v. Smith, 220 A.D.2d 922, 923). In addition it is the petitioner, not the appellant, who would be prejudiced by dismissal of this proceeding, because as a result a candidate with an improper designating petition would be allowed to remain on the ballot.