SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

820 

CAE 13-01365 

PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, WHALEN, AND MARTOCHE, JJ. 

 

IN THE MATTER OF ROBERT K. BANKOSKI, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

NORMAN P. GREEN AND BRIAN ABRAM, CONSTITUTING 

CHAUTAUQUA COUNTY BOARD OF ELECTIONS, LARRY J. 

BARMORE, VINCENT W. HORRIGAN AND ANNA M. WILCOX, 

AS PRESIDING OFFICER OF AUTHORIZATION MEETING,

RESPONDENTS-RESPONDENTS, 

ET AL., RESPONDENTS. 

 

JEFFREY A. SHEVLIN, JR., STOCKTON, FOR PETITIONER-APPELLANT.

LAW OFFICES OF MICHAEL ROBERT CERRIE, DUNKIRK (MICHAEL ROBERT CERRIE

OF COUNSEL), FOR RESPONDENT-RESPONDENT NORMAN P. GREEN. 

GOODELL & RANKIN, JAMESTOWN (ANDREW W. GOODELL OF COUNSEL), FOR

RESPONDENT-RESPONDENT BRIAN ABRAM. 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS LARRY J. BARMORE AND VINCENT W.

HORRIGAN. 

MICHAEL J. SULLIVAN, FREDONIA, FOR RESPONDENT-RESPONDENT ANNA M.

WILCOX, AS PRESIDING OFFICER OF AUTHORIZATION MEETING.

 

Appeal from an order of the Supreme Court, Chautauqua County

(James H. Dillon, J.), entered August 5, 2013 in a proceeding pursuant

to the Election Law. The order dismissed the petition. 

It is hereby ORDERED that the order so appealed from is 

unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding pursuant to

Election Law § 16-102 to invalidate certificates (Wilson-Pakula

certificates) authorizing respondents Vincent W. Horrigan and Larry J.

Barmore (Unenrolled Candidates) to be designated as candidates on the

ballot in the next primary election of the Chautauqua County

Conservative Party (Conservative Party). We note as background that,

earlier this year, the Unenrolled Candidates filed designating

petitions seeking the Conservative Party’s nomination in the upcoming

election for Chautauqua County Executive and Chautauqua County Clerk,

respectively. Because the Unenrolled Candidates were registered
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Republicans, they could not be designated as candidates on the

Conservative Party’s primary ballot without authorization from the

“party committee representing the political subdivision of the office

for which a designation or nomination is to be made, unless the rules

of the party provide for another committee, in which case the members

of such other committee . . . may . . . authorize the designation or

nomination of a person as a candidate” (§ 6-120 [3]; see generally

Matter of Master v Pohanka, 10 NY3d 620, 623-625). 

Following the Conservative Party’s longstanding local practice,

the County Committee’s Executive Committee (Executive Committee),

rather than the full County Committee, authorized the Unenrolled

Candidates to be designated as candidates on the party’s primary

ballot. Petitioner, a registered Conservative in Chautauqua County,

objected to the legality of those authorizations and commenced this

proceeding against, inter alia, the Unenrolled Candidates and

respondents Anna M. Wilcox, the Chairwoman of the Conservative Party,

and Brian Abram, the Republican Commissioner of the Chautauqua County

Board of Elections (collectively, respondents). Supreme Court

properly dismissed the petition.

It is undisputed that, pursuant to the Election Law, the County

Committee is the default “party committee” empowered to issue WilsonPakula certificates for the county offices at issue (Election Law § 6-

120 [3]; cf. Matter of Rowles v Orsini, 309 AD2d 1307, 1309). 

Petitioner, however, contends that the rules and regulations of the

County Committee of the Conservative Party (County Committee rules)

did not effectively delegate that authority to the Executive Committee

and thus that the Executive Committee lacked the power to issue the

Wilson-Pakula certificates. We reject that contention and conclude

that, under these circumstances, the County Committee rules delegated

to the Executive Committee the power to authorize the designation of

the Unenrolled Candidates as candidates for the relevant county

offices in the upcoming Conservative Party primary election (see

generally Master, 10 NY3d at 625-626; Matter of New York State Comm.

of Independence Party v New York State Bd. of Elections, 87 AD3d 806,

811-812, lv denied 17 NY3d 706; Matter of Peluso v Erie County

Independence Party, 66 AD3d 1329, 1330-1331; Matter of Koppell v

Garcia, 275 AD2d 587, 588).

Article III, § 3 (A) of the County Committee rules states in

relevant part that, “[a]t all times when the County Committee is not

actually in session, the Executive Committee shall have, possess, and

exercise all the rights, powers, privileges, and duties which the

County Committee may have, possess, and exercise” (emphasis added). 

That provision clearly and unambiguously delegates to the Executive

Committee the power of the County Committee to authorize the

designation of the Unenrolled Candidates, provided that the County

Committee was “not actually in session” when the authorizations were

issued (see Matter of Gresser v Cohen, 275 NY 440, 444-445; see also

Master, 10 NY3d at 625-626). The court did not make a factual finding

with respect to whether the County Committee was in session at the

time the relevant Wilson-Pakula certificates were issued but, on an

appeal following a bench trial such as was conducted here, we may
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“render the judgment [we] find[] warranted by the facts” (Northern

Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492,

499). That standard of review is equally applicable to special

proceedings commenced pursuant to the Election Law (see Matter of Wong

v Cooke, 87 AD3d 659, 661, lv denied 17 NY3d 706; Matter of Stavisky v

Koo, 54 AD3d 432, 434). Here, petitioner made no showing that the

County Committee was “actually in session” at the relevant time. 

Indeed, the fact that Wilcox—the presiding officer of both the

Executive Committee and the County Committee (see Rules and

Regulations of the Chautauqua County Committee of the Conservative

Party of New York State, art III, § 2)—presided over the meeting at

which the Executive Committee issued the contested authorizations

supports the conclusion that the County Committee did not

simultaneously meet without its presiding officer. Moreover, Wilcox

testified that she had “never known a county wide [meeting] to be

called in that June time period,” i.e., when the contested

authorizations were issued by the Executive Committee. We therefore

conclude that petitioner failed to meet his burden of establishing

that the full County Committee was “actually in session” when the

Executive Committee authorized the challenged designations (see

generally Matter of Goldstein v Carlsen, 59 AD2d 642, 643, affd 42

NY2d 993; Matter of Naples v Swiatek, 286 AD2d 567, 568, lv denied 96

NY2d 718). Consequently, petitioner failed to prove that the

challenged Wilson-Pakula authorizations were not validly issued by the

Executive Committee under the County Committee rules. 

Entered: August 15, 2013 Frances E. Cafarell

Clerk of the Court