| Matter of Rosmarin v Belcastro |
| 2007 NY Slip Op 08234 [44 AD3d 1055] |
| October 30, 2007 |
| Appellate Division, Second Department |
| In the Matter of Amy Rosmarin et al.,Appellants, v Thomas J. Belcastro, Respondent, et al.,Respondent. |
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In a proceeding pursuant to Election Law § 16-102 to validate a petition designatingAmy Rosmarin and Mary Elizabeth Reeves as candidates of the North Salem Coalition, anindependent party, for the public office of Council Member of the Town of North Salem, in ageneral election to be held on November 6, 2007, the petitioners appeal (1) from a final order ofthe Supreme Court, Westchester County (Donovan, J.), dated October 2, 2007, which denied thepetition and dismissed the proceeding, and (2), as limited by their brief, from so much of an orderof the same court dated October 22, 2007, as, upon reargument, adhered to the originaldetermination.
Ordered that the final order dated October 2, 2007 is reversed, on the law, without costs ordisbursements, so much of the order dated October 22, 2007, as, upon reargument, adhered to theoriginal determination denying the petition and dismissing the proceeding is vacated, the petitionis granted, and the Westchester County Board of Elections is directed to place the petitioners'names on the appropriate ballot; and it is further,
Ordered that the appeal from the order dated October 22, 2007 is dismissed as academic,without costs or disbursements, in light of the determination of the appeal from the final orderdated October 2, 2007.
" '[A]lteration of a [witness] statement which is unexplained and uninitialed will result in theinvalidation of the petition sheet' even if the alterations 'resulted in the manifestation of correctinformation' " (Matter of McGuire v Gamache, 5 NY3d 444, 448 [2005], quotingMatter of Jonas v Velez, 65 NY2d 954, 955 [1985]). However, "where an explanation forthe uninitialed change is provided [*2]by affidavit or testimonyadduced at a hearing, the underlying signatures need not be nullified" (Matter of Curley vZacek, 22 AD3d 954, 957 [2005]).
Here, the subscribing witness to sheet No. 7 of the designating petition failed to initial or datea crossed-out signature, which was her own. The alteration was explained by the subscribingwitness's uncontroverted testimony that she did not know that she was not permitted to sign thedesignating petition for which she was a subscribing witness. The subscribing witness furthertestified that she inadvertently failed to initial or date the crossed-out signature. Thus, the courterred in invalidating the remaining eight signatures on that sheet. The inclusion of the eightsignatures on sheet No. 7 provides the required number of valid signatures on the designatingpetition.
The remaining contentions are without merit. Goldstein, J.P., Skelos, Fisher and Covello, JJ.,concur.