SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1129.1 

CAE 15-01662 

PRESENT: SCUDDER, P.J., SMITH, LINDLEY, AND VALENTINO, JJ.

 

 

IN THE MATTER OF THOMAS V. DADEY, JR., CHAIRMAN 

OF ONONDAGA COUNTY REPUBLICAN PARTY COMMITTEE AND 

OBJECTOR AGGRIEVED, AND JOHN DEMETRO, ET AL., 

OBJECTORS AGGRIEVED, PETITIONERS-RESPONDENTS,

 

V MEMORANDUM AND ORDER

DUSTIN M. CZARNY AND HELEN KIGGINS WALSH, 

COMMISSIONERS CONSTITUTING ONONDAGA COUNTY BOARD 

OF ELECTIONS, RESPONDENTS-RESPONDENTS,

JAMES ROMEO, ET AL., PURPORTED CANDIDATES OF 

WOMEN’S EQUALITY PARTY, RESPONDENTS, 

GREGORY PETERSON, DOUGLAS KELLNER, ANDREW SPANO 

AND PETER KOSINSKI, COMMISSIONERS CONSTITUTING 

NEW YORK STATE BOARD OF ELECTIONS, 

RESPONDENTS-RESPONDENTS, 

 

PURPORTED WOMEN’S EQUALITY PARTY, AND ITS 

PURPORTED COMMITTEES, RACHEL GOLD, PURPORTED 

ACTING CHAIR, AND KATHLEEN JOY, PURPORTED SECRETARY,

RESPONDENTS-APPELLANTS. 

GREENBERG TRAURIG LLP, NEW YORK CITY (STEVEN C. RUSSO OF COUNSEL), FOR

RESPONDENTS-APPELLANTS.

THOMAS RUSSELL SCHEPP, II, MANLIUS, FOR PETITIONERS-RESPONDENTS. 

 

Appeal from an order (denominated order and judgment) of the

Supreme Court, Onondaga County (Norman W. Seiter, Jr., J.), entered

September 29, 2015 in a proceeding pursuant to Election Law article

16. The order invalidated a certificate of nomination naming several

individuals as candidates of the Women’s Equality Party for certain

public offices. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondents-appellants appeal from an order

invalidating the certificate of nomination naming several nonappealing

respondents as candidates of the Women’s Equality Party (WEP) for

certain public offices in a general election to be held on November 3,

2015. Supreme Court invalidated the certificate of nomination on the
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CAE 15-01662 

ground that it does not comply with Election Law § 6-128 insofar as

there is a “conflict relating to the rules or the rule-making body”

(Election Law § 6-128 [4]). We conclude that the court properly

invalidated the certificate of nomination, although our reasoning

differs from that of the court. 

We agree with respondents-appellants that the court erred in

invalidating the certificate of nomination on the ground of

noncompliance with Election Law § 6-128 (4). Consistent with section

6-128 (1) (f), the challenged certificate of nomination contained a

certified copy of the party rules, which was certified by Governor

Andrew Cuomo and Lieutenant Governor Kathleen Hochul, i.e., two out of

the slate of four statewide candidates who ran on the WEP line in the

2014 general election. Those rules were filed with the New York State

Board of Elections (NYSBOE) on July 2, 2015, and amended rules also

certified by Governor Cuomo and Lieutenant Governor Hochul were filed

with the NYSBOE on July 14, 2015. Although the record reflects that

competing rules purporting to be WEP party rules were subsequently

filed with the NYSBOE, we conclude that, as our colleagues in the

Third Department recently held in a similar case, the mere filing of

such competing rules did not create a “question or conflict” relating

to the rules contained in the certificate of nomination for the

purposes of section 6-128 (4), inasmuch as the competing rules were

not certified by any statewide candidates (see Matter of Grasso v

Cleveland, ___ AD3d ___, ___ [Oct. 14, 2015]; cf. Matter of

Independence Party of N.Y. v Board of Elections in City of N.Y., 213

AD2d 209, 209, appeal dismissed, lv denied 85 NY2d 867; see generally

McKinney’s Cons Laws of NY, Book 1, Statutes § 96). 

We nevertheless conclude that the certificate of nomination is

invalid on the ground that it does not “contain . . . [a]n affidavit

containing a statement by the presiding officer and secretary of the

committee that they are such officers and the statements in the

certificate are true,” as required by Election Law § 6-128 (1) (g). 

Although petitioners request that this Court remit the matter to

Supreme Court to address that ground in the first instance, we

“decline to do so and instead reach such [ground] in the interest of

judicial economy” (Matter of Cobleskill Stone Prods., Inc. v Town of

Schoharie, 126 AD3d 1094, 1096). The challenged certificate of

nomination contains the notarized signatures of Rachel Gold, as

“Presiding Officer of Nominating Meeting and Acting Chair of the WEP,”

and Kathleen Joy, as “Secretary of Nominating Meeting and the WEP,”

but it does not contain a statement by either Gold or Joy attesting to

the truth of the statements in the certificate. In our view, the

omission of such a statement constitutes a “substantive departure from

the mandates of the statute and not a mere error in form” (Matter of

McGuire v Gamache, 22 AD3d 614, 615, affd 5 NY3d 444; see Matter of

Alamo v Black, 51 NY2d 716, 717; see also Matter of Griffin v Torres,

131 AD3d 631, 632). Because strict, and not just substantial,

compliance is required “with statutory commands as to matters of

prescribed content” (Matter of Hutson v Bass, 54 NY2d 772, 774; see

Matter of Boniello v Niagara County Bd. of Elections, 131 AD3d 806,

807), the certificate of nomination is invalid (see Grasso, ___ AD3d 
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at ___).

Entered: October 19, 2015 Frances E. Cafarell

Clerk of the Court