1 No. 277, 278 [1996 NY Int. 167]
Decided August 28, 1996
No. 277: Martin E. Connor, for appellant.
Joel B. Mayer, for respondents.
No. 278: Thomas J. Spargo, for appellants.
Paul A. Victor, for respondents.
MEMORANDUM:
The order of
the Appellate Division in each proceeding should be affirmed, without costs.
Each appellant
submitted a designating petition, one as a candidate for State Senator
of the 32nd Senatorial District, the second as a candidate for State Assembly
Member in the 75th Assembly District, for the Democratic Party Primary
to be held on September 10, 1996. The designating petition for each
candidate also contained the names of other candidates for other state
elective offices. Respondents filed separate proceedings seeking
to invalidate the respective designating petition for each appellant.
Supreme Court
rejected the invalidation efforts. The Appellate Division reversed
and invalidated on permeation of fraud grounds and we granted leave to
appeal. Appellants contend that these proceedings should be
dismissed for failure to join as necessary parties all of the other candidates
listed in the designating petitions.
Election Law
6-134(3) provides, "All sheets designating the same candidate for nomination
for the same public office or party position, when bound together as provided
herein,
and offered for filing, shall be deemed to constitute one petition
for such candidate." (See also, Matter of Pecoraro, 65 NY2d 1026, 1027
["Although the statute permits petitions of
several candidates to be joined, each candidate's petition is a petition
for a separate office"].)
Since under
the circumstances presented here, we treat the designating petitions as
unique to each candidate for a particular public office or party position,
no other additional
parties were necessary to these proceedings challenging the sufficiency
of the designating petitions for the appellants (CPLR 1001). Consequently,
the courts may consider the merits of respondents' claims.
Appellants also
contend that the Appellate Division erroneously reversed Supreme Court's
finding that the designating petitions were not permeated by fraud.
Appellants argue that since the Appellate Division lacked a trial transcript,
it lacked a record basis for reversing Supreme Court's factual finding.
The record before the Appellate Division included the Referee's report
which contained an extensive recitation of the testimony before the Referee
and the relevant findings of fact, which Supreme Court adopted without
additional factfinding. Consequently, the Appellate Division had a sufficient
basis on the record here to exercise its factual review powers. Since
the inferences drawn by the Appellate Division are supported by the record,
it cannot be said, as a matter of law, that the Appellate Division erred
in finding that the challenged designating petitions were permeated with
fraud and that they should be invalidated.
* * * * * * * * * * * * * * * * *
Nos. 277 and 278: Order affirmed, without costs, in a memorandum. Chief Judge Kaye and Judges Simons, Titone, Decided August 28, 1996 Bellacosa, Smith, Levine and Ciparick concur.
Decided August 28, 1996