| Futia v Westchester County Bd. of Elections |
| 2013 NY Slip Op 05984 [109 AD3d 958] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Anthony Futia, Jr., et al., Appellants, v WestchesterCounty Board of Elections et al., Respondents. |
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In a hybrid action, inter alia, for a judgment declaring that John Stipo is the elected"Town Committeeman, Republican Party, District #5, Town of North Castle,Westchester County, State of New York," and proceeding pursuant to Election Lawarticle 16, the plaintiffs/petitioners appeal, as limited by their brief, from stated portionsof an order of the Supreme Court, Westchester County (Tolbert, J.), dated October 26,2012, which, among other things, denied the declaratory relief requested with respect toJohn Stipo.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Westchester County, forthe entry of a judgment, inter alia, declaring that John Stipo is not the elected TownCommitteeman, Republican Party, District #5, Town of North Castle, WestchesterCounty, State of New York.
The Supreme Court properly denied the plaintiffs/petitioners' request for a judgmentdeclaring that John Stipo is the elected "Town Committeeman, Republican Party, District#5, Town of North Castle, Westchester County, State of New York." Under thecircumstances of this case, Stipo's designating petition was a nullity (see Matter of Fischer v NYS Bd. ofElections, 98 AD3d 1067, 1068 [2012]). Although the plaintiffs/petitionerscontend that the defendants/respondents violated their rights to, inter alia, due processand equal protection, those contentions were presented to the Supreme Court in a whollyconclusory manner (seeHuntington Yacht Club v Incorporated Vil. of Huntington Bay, 1 AD3d 480,482 [2003]), and are without merit (see Matter of Walton v New York State Dept. of CorrectionalServs., 13 NY3d 475, 494 [2009]). Moreover, to the extent that theplaintiffs/petitioners are challenging the constitutionality of Election Law § 2-106(3), nothing in the record indicates that they provided the requisite notice to the AttorneyGeneral (see Executive Law § 71 [3]; Matter of McGee v Korman,70 NY2d 225, 231-232 [1987]).
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Westchester County, for the entry of a judgment, inter alia, declaring thatJohn Stipo is not the elected Town Committeeman, Republican Party, District #5, Townof North Castle, Westchester County, State of New York (see Lanza v Wagner,11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], certdenied 371 US 901 [1962]). Mastro, J.P., Hall, Lott and Sgroi, JJ., concur.