| Matter of MacKay v Johnson |
| 2008 NY Slip Op 06662 [54 AD3d 428] |
| August 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Frank MacKay et al., Respondents-Appellants, etal., Petitioners, v Craig M. Johnson, Appellant-Respondent, et al.,Respondents. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Craig M. Johnson as a candidate in a primary election to be held on September 9,2008, for the nomination of the Independence Party as its candidate for the public office of StateSenator for the 7th Senatorial District, Craig M. Johnson appeals, as limited by his brief, from somuch of a final order of the Supreme Court, Nassau County (Lally, J.), dated August 11, 2008,as, after a hearing, amended the caption to designate Barbara Donno as a petitioner in theproceeding, granted the petition, invalidated the designating petition, granted the petitioners'motion to dismiss his counterclaims, and directed the Nassau County Board of Elections not toplace his name on the ballot, and Frank MacKay, the New York State Independence Party, theNew York State Committee of the Independence Party, the Executive Committee of the NewYork State Committee of the Independence Party, the Nassau County Independence Party, BobbyKumar Kalotee, the County and Executive Committees of the Nassau County IndependenceParty, and Barbara Donno cross-appeal from stated portions of the same final order.
Ordered that the final order is affirmed insofar as appealed from, without costs ordisbursements; and it is further,
Ordered that the cross appeal is dismissed, without costs or disbursements, as therespondents-appellants are not aggrieved by the final order (see CPLR 5511).
The appellant, Craig M. Johnson, is the Democratic candidate for State Senator for the 7th[*2]Senatorial District. A petition also was filed to designateJohnson as a candidate for the nomination of the Independence Party for the same office in aprimary election to be held September 9, 2008.
The instant proceeding was brought to invalidate the petition designating Johnson as acandidate for the nomination of the Independence Party. Barbara Donno, the candidatedesignated by the Executive Committee of the New York State Committee of the IndependenceParty (hereinafter the Executive Committee), aligned herself with the petitioners at the time thematter was heard by the Supreme Court. Johnson brought a cross petition, which the courtconstrued as setting forth counterclaims, to challenge the substitution of Donno for NicoleGadaleta, who was initially designated as the Independence Party candidate, but declined thenomination. Johnson also made an application to recuse Justice Lally from the proceedings.
The court amended the caption to designate Donno, who originally was denominated arespondent, as a petitioner, and found that she had standing to challenge Johnson's designatingpetition as an aggrieved candidate, but found that the other petitioners did not have standing tochallenge the designating petition. The court held that since Johnson was not authorized toappear on the ballot by the Executive Committee, he was prohibited from filing a designatingpetition.
Contrary to Johnson's contentions, the Supreme Court properly amended the caption todesignate Donno as a petitioner. "Defects, mistakes, and irregularities in pleadings are to beignored by the court absent a showing of prejudice" (Hoot Group, Inc. v Caplan, 9 AD3d 448 [2004] [citation andinternal quotation marks omitted]; see CPLR 104). Furthermore, Johnson does not havestanding to challenge the substitution of Donno as the Independence Party candidate because hischallenge relates to the internal functioning of a political party of which he is not an enrolledmember (see Election Law § 16-102 [1]; Matter of Stempel v Albany CountyBd. of Elections, 60 NY2d 801, 803 [1983]; Matter of Wydler v Cristenfeld, 35NY2d 719, 720 [1974]; Matter ofNicolai v McKay, 45 AD3d 965, 966-967 [2007]; Matter of Hariton v McNab,83 AD2d 898 [1981]). Moreover, the Supreme Court providently exercised its discretion indenying Johnson's application for recusal, since he failed to provide proof of any of the statutorydisqualifications under Judiciary Law § 14, and did not prove any bias or prejudice byJustice Lally (see Vest v Vest, 50AD3d 776, 777 [2008]). Accordingly, the court properly granted the petition, invalidated thedesignating petition, granted the petitioners' motion to dismiss his counterclaims, and directedthe Nassau County Board of Elections not to place Johnson's name on the ballot.
Johnson's remaining contentions are without merit.
The cross appeal must be dismissed because the respondents-appellants are not aggrieved bythe portion of the final order cross-appealed from (see CPLR 5511; Rosenberg vRixon, 111 AD2d 910 [1985]). To the extent that the respondents-appellants seek review ofthe court's determination as to the standing of certain of the respondents-appellants, we need notaddress those issues in light of our determination on the appeal to affirm the final order (seeParochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]; State FarmMut. Auto. Ins. v Vitiello, 289 AD2d 393 [2001]; Pelosi v TJA MaintenanceProgramming, 247 AD2d 453 [1998]). Spolzino, J.P., Ritter, Miller, Dillon and Angiolillo,JJ., concur. [See 2008 NY Slip Op 51748(U).]