| Matter of Fuchs v Itzkowitz |
| 2014 NY Slip Op 05874 [120 AD3d 682] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Sharon Fuchs et al.,Respondents, v Joseph Itzkowitz et al., Appellants, et al.,Respondent. |
In a proceeding pursuant to Election Law § 16-102, inter alia, toinvalidate a petition for an opportunity to ballot by providing for a write-in candidatepursuant to Election Law § 6-164 in a primary election to be held onSeptember 9, 2014, for the nomination of the Conservative Party as its candidate for thepublic office of Member of the New York State Assembly for the 48th AssemblyDistrict, the appeal is from a final order of the Supreme Court, Kings County(Rothenberg, J.), dated August 15, 2014, which, after a hearing, granted the petition,inter alia, to invalidate the petition for an opportunity to ballot.
Ordered that the final order is affirmed, without costs or disbursements.
The Supreme Court properly invalidated the signatures that were witnessed bynotaries public Michael Koenig and Ronald Agrachov. The record demonstrates thatKoenig and Agrachov had neither administered an oath to the signatories "in a formcalculated to awaken the conscience and impress the mind of the person taking it inaccordance with his [or her] religious or ethical beliefs" (CPLR 2309 [b]; see Matter of Bonner vNegron, 87 AD3d 737, 738 [2011]; Matter of Liebler v Friedman, 54 AD3d 697, 698 [2008];Matter of Quintyne v Canary, 104 AD2d 473, 475 [1984]), nor obtained" 'a statement from each of the signatories as to the truth of the matter to whichthey subscribed their names' " (Matter of Bonner v Negron, 87 AD3d at738, quoting Matter of Brown v Suffolk County Bd. of Elections, 264 AD2d 489,489 [1999]; see Matter of Helfand v Meisser, 22 NY2d 762 [1968], affg30 AD2d 670 [1968]; Matter of LeBron v Clyne, 65 AD3d 801, 802 [2009]; Matter of Imre v Johnson, 54AD3d 427, 428 [2008]; Matter of Merrill v Adler, 253 AD2d 505, 506[1998]; Matter of Andolfi v Rohl, 83 AD2d 890 [1981]). As such, the signaturesto which they attested failed to substantially comply with Election Law§ 6-132 (3). Accordingly, there was an insufficient number of validsignatures on the petition for an opportunity to ballot.
To the extent that the appellants are challenging the constitutionality of Election Law§ 6-132 (3), they were required to preserve that issue for appellate reviewby timely raising it before the Supreme Court (see generally Matter of Burkins vScully, 108 AD2d 743, 744 [1985]). Here, however, we need not determine whetherthe appellants preserved that issue for appellate review, since nothing in the recordindicates that they provided the requisite notice to the Attorney General that theyintended to challenge the constitutionality of a State statute (see Executive Law§ 71 [3]; CPLR 1012 [b] [3]; Matter of McGee v Korman, 70 NY2d225, 231-232 [1987]; Futia vWestchester County Bd. of Elections, 109 AD3d 958, 959 [2013]). Accordingly,we do not reach the merits of that challenge.
[*2] In light of our determination, we need not reach the petitioners' remainingcontention, which was raised as an alternative ground for affirmance (see ParochialBus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]; Matter of MacKay v Johnson,54 AD3d 428, 430 [2008]). Dillon, J.P., Dickerson, Cohen and Duffy, JJ.,concur.