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MEMORANDUM:
The order of
the Appellate Division should be modified, without costs, by reinstating
the first cause of action of the proceeding by petitioners Mandell,
Zunno and Gold to invalidate respondent Goldstein's designating petition,
and remitting to the Board of Elections for further proceedings in accordance
with this memorandum and, as so modified, affirmed.
These are two
proceedings, one instituted by petitioners Mandell, Zunno and Gold to invalidate
the petition of respondent Goldstein's candidacy for Surrogate of King's
County
and one instituted by petitioner Goldstein to validate her petition,
before us by our leave.
In the proceeding
instituted by petitioner Goldstein, we agree with the Appellate Division
that the record below establishes timely filing and service of the objections
and
specifications on the part of respondents Mandell and Zunno, regarding
the designating petition of petitioner Goldstein, and were properly before
Supreme Court, having been raised in their answer to the Goldstein petition
to validate her designating petition. Thus, the Appellate Division
properly reversed Supreme Court's order granting the petition to validate
and remitted to the Board of Elections for consideration of respondents'
objections and specifications.
With respect
to the proceeding instituted by petitioners Mandell, Zunno and Gold to
invalidate the Goldstein petition and for other relief, Supreme Court properly
dismissed
the second cause of action as insufficient as a matter of law. No appeal
was taken from the dismissal of petitioners' third cause of action.
Moreover, insofar as the first cause of action
alleges that the Goldstein designating petition was invalid as permeated
with fraud, it, too, was legally insufficient.
Petitioners'
first cause of action, however, also alleges that there were insufficient
valid signatures to Goldstein's designating petition based on a line-by-line
analysis. As amplified by petitioners' timely objections and specifications
that were submitted with the pleadings (see, supra), these allegations
were legally sufficient and should not have been dismissed on that ground.
Likewise, it was error to dismiss the first cause of action for failure
to join other candidates named in the Goldstein petition as necessary parties
(see, Matter of Buchanan, et al. v Espada, Jr., __NY2d__; Matter of Buchanan,
et al. v Espada, __NY2d__, [decided today]). Therefore, the petitioners'
first cause of action should be reinstated and, as was the case in the
proceeding to validate the Goldstein petition, the matter should be remitted
to the Board of Elections to determine the merits of petitioners' objections.
We have considered the parties' remaining contentions and find them unpersuasive.
* * * * * * * * * * * * * * * * *
Order modified, without costs, in accordance with the memorandum herein
and, as so modified, affirmed. Chief Judge Kaye and Judges Simons,
Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided August 28, 1996