MATTER OF DE CICCO v. CHEMUNG CTY. BD., ELEC. [3d Dept 1999

Full title: In the Matter of LOUIS F. DE CICCO et al., Respondents, v. CHEMUNG COUNTY…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Aug 20, 1999

(N.Y. App. Div. Aug. 20, 1999)

Opinion

August 20, 1999

Appeal from an order of the Supreme Court (Buckley, J.), entered August 9, 1999 in Chemung County, which granted petitioners' application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the opportunity to ballot petition for the Conservative Party nomination for the office of Chemung County District Attorney in the September 14, 1999 primary election.

Christopher A. Barton and Kevin P. Flynn, Elmira, for appellants.

Thomas J. Spargo, East Berne, for Louis F. De Cicco and another, respondents.

Before: CARDONA, P.J., MERCURE, PETERS, SPAIN and GRAFFEO, JJ.

MEMORANDUM AND ORDER

PER CURIAM.

In this case, supporters for John Trice circulated two petitions among enrolled Conservative Party members. One petition sought to designate Trice as the Conservative Party candidate for the office of Chemung County District Attorney in the upcoming primary election while the other was an opportunity to ballot petition for the same office. Both petitions contained the same signatories and were signed on the same date. Following the invalidation of Trice's designating petition for failure to receive the required certificate of authorization from the Conservative Party, the opportunity to ballot petition was accepted by the local board of elections and subsequently invalidated by Supreme Court, giving rise to this appeal.

Although Supreme Court invalidated the opportunity to ballot petition in reliance upon Matter of Longo v. Loeffler ( 242 A.D.2d 348, lv denied 90 N.Y.2d 805), a case involving virtually identical facts, our affirmance of Supreme Court's order in this case is based upon a different analysis.

We hold that Election Law § 6-134 (3) applies to the opportunity to ballot petition at issue in this case. Having so concluded, we find that the opportunity to ballot petition signed on the same date by the same enrolled Conservative Party members who signed Trice's designating petition was invalid as violative of Election Law § 6-134 (3).

CARDONA, P.J., MERCURE, PETERS, SPAIN and GRAFFEO, JJ., concur.

ORDERED that the order is affirmed, without costs.