| Matter of Oberman v Romanowski |
| 2009 NY Slip Op 06372 [65 AD3d 992] |
| September 2, 2009 |
| Appellate Division, Second Department |
| In the Matter of Nathan M. Oberman,Respondent-Appellant, v Robert Romanowski, Appellant-Respondent, et al.,Respondents. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Robert Romanowski and Mark S. Lerer as candidates in a primary election to beheld on September 15, 2009 for the nomination of the Republican Party as its candidates for thepublic offices of Supervisor of the Town of Ramapo and Town Justice of the Town of Ramapo,respectively, Robert Romanowski appeals from a final order of the Supreme Court, RocklandCounty (Garvey, J.), entered August 19, 2009, which granted the petition to invalidate thedesignating petition and, in effect, restrained the Rockland County Board of Elections fromplacing his name and the name of Mark S. Lerer on the ballot, and the petitioner cross-appealsfrom the same final order.
Ordered that the cross appeal is dismissed, without costs or disbursements, as the petitioneris not aggrieved by the final order (see CPLR 5511; Village of Mamaroneck v Town of Rye, 45 AD3d 577, 578[2007]); and it is further,
Ordered that the appeal from so much of the final order as granted that branch of the petitionwhich was to invalidate the designating petition insofar as it relates to Mark S. Lerer and as, ineffect, restrained the Rockland County Board of Elections from placing the name of Mark S.Lerer on the ballot is dismissed, without costs or disbursements, as the appellant-respondent isnot aggrieved by those portions of the final order (see CPLR 5511); and it is further,
Ordered that the final order is reversed insofar as reviewed, on the law, without costs ordisbursements, and the matter is remitted to the Supreme Court, Rockland County, for furtherproceedings, to be held forthwith, in accordance herewith.
Although an " 'alteration of the [witness] statement which is unexplained and uninitialed willresult in the invalidation of the petition sheet' even if the alterations 'resulted in the manifestationof correct information' " (Matter ofMcGuire v Gamache, 5 NY3d 444, 448 [2005], quoting Matter of Jonas vVelez, 65 NY2d 954, 955 [1985]), "where an explanation for the uninitialed change isprovided by affidavit or testimony adduced at a hearing, the underlying signatures need not benullified" (Matter of Curley vZacek, 22 AD3d 954, 957 [2005]; see Matter of Rosmarin v Belcastro, 44 AD3d 1055 [2007]). Here,the Supreme Court invalidated the instant designating petition insofar as it relates to RobertRomanowski on the ground that the witness statements on several petition sheets containeduninitialed alterations. However, Romanowski was not afforded an opportunity to offer evidencerelating to these alterations. Under these circumstances, we remit the matter to the [*2]Supreme Court, Rockland County, for an evidentiary hearing onthe uninitialed alterations at issue, and thereafter for a new determination of that branch of thepetition which was to invalidate the designating petition insofar as it relates to Romanowski.
The petitioner's remaining contentions, including those raised as an alternative ground foraffirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545[1983]), are without merit. Mastro, J.P., Leventhal, Chambers and Roman, JJ., concur.