| Matter of Nicolai v McKay |
| 2007 NY Slip Op 08167 [45 AD3d 965] |
| November 1, 2007 |
| Appellate Division, Third Department |
| In the Matter of Francis A. Nicolai, Appellant, v Frank McKay etal., Respondents, et al., Respondents. |
—[*1] A. Joshua Ehrlich, Albany, and John Ciampoli, Albany, and Vincent J. Messina Jr., CentralIslip, for Frank McKay and others, respondents.
Per Curiam. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered October25, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toElection Law § 16-102, to declare invalid (1) the certificate of nomination namingrespondents Rory J. Bellantoni, William E. Sherwood and John Ciampoli as the IndependenceParty candidates for the public office of Justice of the Supreme Court for the 9th Judicial Districtin the November 6, 2007 general election, and (2) the certificate of substitution namingrespondent Elaine Slobod as an Independence Party candidate for said public office in place ofJohn Ciampoli.
On September 28, 2007, a judicial nominating convention was held by the IndependenceParty to nominate candidates for the public office of Justice of the Supreme Court for the 9thJudicial District. During the convention, respondents Rory J. Bellantoni, William E. Sherwoodand John Ciampoli were nominated as the Independence Party candidates for this office and acertificate of nomination was filed with respondent State Board of Elections. Ciampoli, however,declined the nomination and he was replaced by respondent Elaine Slobod, for whom acertificate of substitution was filed. Petitioner, a Democratic Party candidate seeking election tothe same office, commenced this proceeding pursuant to Election Law § 16-102 againstnumerous respondents, including the nominated and substituted candidates, the convention chair[*2]and secretary, the State Independence Party, various countycommittees and Independence Party officials, as well as the Board and various county boards ofelections, seeking to invalidate the actions taken at the Independence Party's judicial nominatingconvention. Following joinder of issue and a motion by some respondents to dismiss the petition,Supreme Court dismissed the proceeding. This appeal ensued.
We affirm. Based on an analysis akin to that set forth in our decision in Matter of Nicolaiv Kelleher (45 AD3d 960 [2007] [decided herewith]), we are of the view that petitioner iswithout standing to maintain this proceeding as an aggrieved candidate under Election Law§ 16-102 (1). Petitioner is not a member of the Independence Party and, while he assertsthat he was an unsuccessful candidate for that party's nomination, he does not allege that hewould have received the nomination were it not for purported irregularities in the manner andmethod by which the judicial nominating convention was conducted. Further, the assertedviolations of Election Law §§ 6-124 and 6-126 are, like the claims at issue inMatter of Nicolai v Kelleher (supra), matters related to the internal functioning ofa political party with respect to its nomination of candidates for judicial office and, thus, subjectto challenge only by members of that party (see Matter of Wydler v Cristenfeld, 35 NY2d719 [1974]; Matter of Koppell v Garcia, 275 AD2d 587 [2000]; Matter of Stempel vAlbany County Bd. of Elections, 97 AD2d 647 [1983], affd 60 NY2d 801 [1983];see also Matter of Nicolai v Kelleher, 45 AD3d 960 [2007] [decided herewith]).Therefore, under the circumstances presented, we are of the view that petitioner is withoutstanding to maintain this proceeding. In view of our disposition, we need not address petitioner'sremaining claims.
Mercure, J.P., Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.