| Matter of DiMarino v Maher |
| 2010 NY Slip Op 06438 [76 AD3d 653] |
| August 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of Nicholas DiMarino, Petitioner, and Gary L.Ackerman, Respondent, v Patricia M. Maher, Appellant, et al.,Respondent. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Patricia M. Maher as a candidate in a primary election to be held on September 14,2010, for the nomination of the Democratic Party as its candidate for the public office ofRepresentative in Congress from the 5th Congressional District, Patricia M. Maher appeals froma final order of the Supreme Court, Nassau County (Winslow, J.), dated August 11, 2010, which,after a hearing, in effect, granted the petition and invalidated the designating petition.
Ordered that the final order is reversed, on the law, without costs or disbursements, thepetition to invalidate is denied, the proceeding is dismissed, and the New York State Board ofElections is directed to place the appellant's name on the appropriate ballot.
This case involves a challenge to a petition seeking to designate Patricia M. Maher as acandidate for nomination in a primary election on the basis that some voter signatures were notcollected in compliance with the Election Law. The signatures at issue were gatheredsubstantially in the following manner: after the voter signed the petition, the subscribing witnessobtained the voter's permission to fill out the remaining information (which included the voter'saddress), and this information was later accurately inserted by the subscribing witness outsidethe voter's presence. Nicholas DiMarino, a citizen objector, and Gary L. Ackerman, an aggrievedcandidate, together commenced the instant proceeding to invalidate Maher's designating petitionon the ground, among others, that the signatures gathered in this manner were invalid. Theparties stipulated that, given the number of signatures gathered in the aforedescribed manner, theresolution of this issue is dispositive: if the signatures were determined to be valid, then Maherhad sufficient signatures to be placed on the ballot, and if the signatures were found to beinvalid, then she did not. The Supreme Court found that the signatures at issue were invalid and,in effect, invalidated Maher's designating petition. We reverse.
Election Law § 6-134, which contains the rules for designating petitions, states, inrelevant part: "A signer need only place his signature upon the petition, and need not himself [orherself] fill in the other required information" (Election Law § 6-134 [7]). This statute issilent as to the sequence in which the signature and the "other required information" must beplaced on the petition, as well as whether that information must be inserted in the voter'spresence. Applying basic rules of statutory construction, we decline to infer from the statute arequirement that such information be filled in prior to obtaining the voter's signature, or that it bedone in the voter's presence (see McKinney's Cons Laws of NY, Book 1, Statutes§ 74 ["A court cannot by implication supply in a statute a provision which it is reasonableto suppose the Legislature intended intentionally to omit"]; see also Matter of Thomas,216 NY 426 [1915]). We note that with respect to other requirements for designating petitions,such as the sequence in which the information must be inserted in the[*2]"subscribing witness statement" (see Election Law §6-134 [9]), the Legislature set forth explicit requirements for the sequence in which suchinformation is to be completed, who may insert the information, and in whose presence theinformation must be inserted. We take the Legislature's decision, in one instance, to explicitlystate the sequence in which information must be inserted onto a designating petition and, inanother instance, to be silent as to such matters, as evidence that the omission was intentional.
Our determination is guided by Election Law § 6-134 (10), which instructs courts toliberally construe the provisions of section 6-134 "not inconsistent with substantial compliancethereto and the prevention of fraud" (seeMatter of Kutner v Nassau County Bd. of Elections, 65 AD3d 643, 644 [2009]). Therehas been no finding in the case at bar that the voters' signatures were not authentic, or that theresidence information later filled in by the subscribing witness was inaccurate. At the SupremeCourt, the attorney for DiMarino and Ackerman conceded that the signatures at issue wereotherwise valid.
Ackerman contends that Election Law § 6-132 (1), which governs theform of designating petitions, establishes a strict sequence in which the information must beplaced on the signature line, pointing to the portion of the sample voter statement containedtherein in which the voter is required to state "that my place of residence is truly stated oppositemy signature hereto." He argues that a voter cannot state or affirm that the residence informationnext to his or her signature is correct unless that information has first been placed on the petition.We find no evidence in the statute that the Legislature intended to impose such strict formalitiesas to the sequence in which the required information is placed on the petition. Dillon, J.P.,Miller, Leventhal, Chambers and Lott, JJ., concur.