| Matter of Kutner v Nassau County Bd. of Elections |
| 2009 NY Slip Op 06270 [65 AD3d 643] |
| August 20, 2009 |
| Appellate Division, Second Department |
| In the Matter of Stephen D. Kutner, Appellant, v NassauCounty Board of Elections, Respondent, and Chani Marks et al.,Respondents. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitionfor an opportunity to ballot by providing for a write-in candidate pursuant to Election Law§ 6-164 in a primary election to be held on September 15, 2009, for the nomination of theIndependence Party as its candidate for the public office of Member of the Nassau CountyLegislature, 3rd Legislative District, the petitioner appeals, as limited by his brief, from so muchof a final order of the Supreme Court, Nassau County (Brown, J.), entered August 12, 2009, as,after a hearing, denied the petition to invalidate and dismissed the proceeding.
Ordered that the final order is affirmed insofar as appealed from, without costs ordisbursements.
The appellant failed to meet his burden of establishing that the signatures on the petition foran opportunity to ballot, which were witnessed by Lawrence Nedelka, a notary public, shouldhave been invalidated on the ground that Nedelka failed to obtain a statement from eachsignatory attesting to the truth of the matter to which he or she had subscribed his or her name(see Election Law § 6-132; Matter of Liebler v Friedman, 54 AD3d 697 [2008]; Matter of Imre v Johnson, 54 AD3d427 [2008]; Matter of Brown v Suffolk County Bd. of Elections, 264 AD2d 489[1999]; Matter of Merrill v Adler, 253 AD2d 505 [1998]; Matter of Zunno vFein, 175 AD2d 935 [1991]). Nedelka testified at the hearing that he administered to eachsignatory an oath that was printed on an instruction sheet he carried while collecting signatures.The oath, which was offered into evidence, asks the signatory to swear or affirm, among otherthings, that he or she designates "the named person(s) on the petition as candidate(s) for thenomination of the party for public office." Although no particular form of oath is required(see CPLR 2309 [b]), this oath is more appropriate for a petition to designate a namedperson as a candidate (see Election Law § 6-132 [1]), rather than a petition for anopportunity to ballot, which seeks the opportunity to write in the name of a candidate in anuncontested primary (see Election Law § 6-164). Nevertheless, we are satisfiedthat the signatures were in substantial compliance with Election Law § 6-132 (3) (seeMatter of Liebler v Friedman, 54 AD3d at 697-698; Matter of Brown v Suffolk CountyBd. of Elections, 264 AD2d at 489). Nedelka testified that when he introduced himself toeach registered voter, he explained that he was carrying a petition requesting the opportunity toballot and gave them the opportunity to review the petition before signing it. Under thesecircumstances, when each signatory took the oath, he or she would have clearly understood thatthe oath referred to the matter to which he or she had subscribed his or her [*2]name. Accordingly, the Supreme Court properly denied the petitionto invalidate and dismissed the proceeding. Fisher, J.P., Santucci, Eng, Hall and Roman, JJ.,concur.