Rose v. Smith, 220 A.D.2d 922 (N.Y. App. Div. 1995). · Go Syfert
Rose v. Smith, 220 A.D.2d 922 (N.Y. App. Div. 1995). Cases Citing This Book View Copy Cite
27 citation events (24 in the last 25 years) across 4 distinct courts.
Strongest positive: Rodriguez v. Westchester County Board of Elections (nysupct, 2015-02-27) · Strongest negative: Niebauer v. Board of Elections (nyappdiv, 2010-08-18)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited "but see" Niebauer v. Board of Elections
N.Y. App. Div. · 2010 · signal: but see · confidence high
Since the petition was not verified as mandated by Election Law § 16-116, the Supreme Court properly dismissed the petition (see Matter of Alper v Hayduk, 71 AD2d 935 [1979]; but see Matter of Rose v Smith, 220 AD2d 922 [1995]).
discussed Cited as authority (rule) Rodriguez v. Westchester County Board of Elections
N.Y. Sup. Ct. · 2015 · confidence medium
Here, upon this court’s review of the petition, it was not verified, nor was it notarized, which is a circumstance which could obviate the argument of prejudice or possibility of fraud (Matter of Rose v Smith, 220 AD2d 922, 923 [3d Dept 1995]).
discussed Cited as authority (rule) Nicolai v. Kelleher
N.Y. App. Div. · 2007 · confidence medium
Indeed, ordinarily, a candidate of one party has no standing to challenge the internal affairs and operating functions of another political party in its designation of candidates (see Matter of Gross v Hoblock, 6 AD3d 933, 935 [2004]; Matter of Koppell v Garcia, 275 AD2d 587, 587 [2000]; Matter of Rose v Smith, 220 AD2d 922, 924 [1995]; Matter of Krupczak v Mancini, 133 AD2d 288, 288 [1987]).
discussed Cited as authority (rule) Master v. Pohanka
N.Y. App. Div. · 2007 · confidence medium
Moreover, we note that there is no allegation that a substantial right of the appellants would be prejudiced by the allegedly defective verification (cf. Matter of Rose v Smith, 220 AD2d 922, 923 [1995]).
discussed Cited as authority (rule) Verena Rivera-Powell, Francesca Castellanos, Georgina Sanchez, and Marie Sierra v. New York City Board of Elections, Docket No. 06-4665-Cv
2d Cir. · 2006 · confidence medium
The fact that Rivera-Powell failed properly to pursue the state court action, and that it is now too late to do so, does not affect our due process analysis: had she appealed the dismissal of her petition, the state courts would have had an opportunity to clarify when a verified petition is in fact required, compare Rose v. Smith, 220 A.D.2d 922, 633 N.Y.S.2d 218, 220 (N.Y.App.Div.1995) (holding that courts need not dismiss section 16-102 actions for failure to verify absent any showing of prejudice), with O’Connell v. Ryan, 112 A.D.2d 1100 , 493 N.Y.S.2d 230, 231 (N.Y.App.Div.1985) (per cur…
discussed Cited as authority (rule) Angelis v. Town of New Baltimore
N.Y. App. Div. · 2006 · confidence medium
The defects asserted here are of form, rather than substance; they do not undermine the petition’s content nor, in our view, do they present “an opportunity for prejudice or possibility of fraud” (Matter of Hazell v Board of Elections of State of N.Y., 224 AD2d 806, 807 [1996], lv denied 87 NY2d 808 [1996]; Matter of Rose v Smith, 220 AD2d 922, 923 [1995]; cf. Matter of Parker v Savago, 143 AD2d 439, 441-442 [1988]).
discussed Cited as authority (rule) Breslin v. Conners
N.Y. App. Div. · 2004 · confidence medium
A candidate of one party will be denied standing to commence a proceeding seeking to invalidate the designation of a candidate of an opposing party where “the underlying challenge is to the internal affairs and/or operating functions of a political party in its designation of candidates . . . rather [than] to a legislatively mandated requirement of the Election Law” (Matter of Gross v Hoblock, 6 AD3d 933, 935 [2004]; see Matter of Wydler v Cristenfeld, 35 NY2d 719, 720 [1974]; Matter of Rose v Smith, 220 AD2d 922, 924 [1995]).
discussed Cited "see, e.g." Thomas v. Eugene
N.Y. Sup. Ct. · 2013 · signal: see also · confidence medium
Under these circumstances, and in light of the absence of any real prejudice to a substantial right that results from the absence of verification, the court will excuse the absence of verification (see Capital Newspapers Div. — Hearst Corp. v Vanderbilt, 44 Misc 2d 542, 543-544 [Sup Ct, Albany County 1964]; see also Matter of Rose v Smith, 220 AD2d 922, 923 [3d Dept 1995]; cf. Deepdale Gardens Third Corp. v Bechky, 104 AD2d 846 , 846 [2d Dept 1984], ap peal dismissed 64 NY2d 754 [1984], lv dismissed 64 NY2d 610 [1985], 65 NY2d 636 [1985]). 4 Eugene also contends that the petition and bill of…
discussed Cited "see, e.g." Open Space Council, Inc. v. Planning Board of Brookhaven
N.Y. App. Div. · 1997 · signal: see also · confidence low
The respondents’ argument with respect to the alleged defective verification of the petition is without merit (see, CPLR 7804 [d]; 3020 [d]; see also, Matter of Rose v Smith, 220 AD2d 922 ; Matter of Ireland v Town of Queensbury Zoning Bd. of Appeals, 169 AD2d 73, 76 ; Matter of Lentlie v Egan, 94 AD2d 839, 840 , affd 61 NY2d 874 ; Matter of Houghwot v Town of Kiantone, 69 AD2d 1011 ).
Retrieving the full opinion text from the archive…
In the Matter of Mark R. Rose
v.
Mary L. Smith, , (And Another Related Proceeding.) In the Matter of David Sawyer v. Robert M. Allen, , (And Another Related Proceeding.) In the Matter of Jennifer N. Curtis v. Richard E. Davidson
Appellate Division of the Supreme Court of the State of New York.
Oct 20, 1995.
220 A.D.2d 922
Cited by 18 opinions  |  Published
—Per Curiam.

Appeal from a judgment of the Supreme Court (Connor, J.), entered October 12, 1995 in Albany County, which granted petitioners’ applications, in five proceedings pursuant to Election Law § 16-102, to declare valid the certificates of nomination naming petitioners as the Democratic Party candidates for the office of Member of the Assembly for the 109th, 113th and 122nd Assembly Districts.

Petitioners are the Democratic Party candidates for offices of Member of the Assembly in their respective Assembly Districts. Each was nominated by a certificate of nomination executed by all the Democratic County Chairs of the Democratic Committees of his or her respective Districts. Objections to each of these certificates of nomination were filed respectively by respondent objectors (hereinafter collectively referred to as respondents), three Republican Party members. The objections were filed with respondent Board of Elections and claimed that the certificates of nomination were invalid on their face because the nominations were made by committees other than the appropriate county committees as required by Election Law § 6-116 and Article VI, § 3 of the Rules of the Democratic Party.

As a result, petitioners, by unverified petitions, each commenced separate proceedings to validate their certificates of nomination. After a hearing before the Board, a single Commissioner ruled that the certificates of nomination were invalid. Two of petitioners then each commenced a proceeding challenging the Board’s actions, also by unverified petitions. The petitions in each of the five proceedings were, however, notarized. After Supreme Court heard all of the proceedings together, it reinstated the certificates of nomination. The court held that, although the petitions were not verified, this did not[*923] divest it of jurisdiction. The court also found that respondents, as Republicans, were without standing to object to the Democratic nominations. Finally, the court concluded that three Commissioners were required to participate in order to invalidate the certificates of nomination. This appeal followed.

We affirm. In our view, petitioners’ failure to verify their respective petitions does not require dismissal of the instant proceedings. It is true that Election Law § 16-116 requires that a proceeding commenced under the Election Law must be by verified petition and that this requirement has been strictly adhered to and deemed jurisdictional in nature (see, e.g., Matter of Goodman v Hayduk, 45 NY2d 804, 806; Vaughn v Withers, 153 AD2d 712). Under the particular circumstances of this case, however, a different result should obtain.

In making this determination, we first turn to the CPLR which sets forth the general requirements for verified pleadings. Although petitioners did not satisfy the requirements (see, CPLR 3021), the CPLR specifically provides that defects in pleadings "shall be ignored if a substantial right of a party is not prejudiced” (CPLR 3026). In non-Election Law matters, it has been determined that an omitted or flawed verification is a defect which can be ignored in the absence of any showing of prejudice (see, e.g., Matter of Ireland v Town of Queensbury Zoning Bd. of Appeals, 169 AD2d 73, Iv dismissed 79 NY2d 822; Matter of Nafalski v Toia, 63 AD2d 1039). Indeed, as one authority has pointed out, "[t]here is so scant an advantage emanating from verification that the party who deems himself entitled to a verified pleading can be deemed unprejudiced if he doesn’t get it” (Siegel, NY Prac § 235, at 350 [2d ed]). Even if it could be argued that the possibility for prejudice is greater, per se, in the Election Law context, the situation is different in the instant case. Here, the petitions were all notarized, a circumstance which obviates the argument of prejudice or possibility of fraud. Simply, it removes the case from the ambit of unverified pleadings (but see, Matter of Alper v Hayduk, 71 AD2d 935).

In addition, given the particular facts of this case, not only is there no evidence that a substantial right of respondents would be prejudiced but rather it is clear that a substantial right of petitioners will be so prejudiced. Dismissing the proceedings would abort candidacies and disenfranchise the voters in the respective Assembly Districts involved. In this regard, we emphasize that petitioners commenced their proceedings to validate their certificates of nomination in response to respondents’ attempts to have the certificates of nomination[*924] voided on grounds for which respondents clearly lacked standing. Election Law § 16-102 (1) specifies the manner in which a judicial proceeding may be commenced to challenge the nomination of a candidate for public office. Case law has construed this provision as prohibiting a member of one political party from objecting to the certificate of nomination of a candidate of another political party where the nature of the objections relate solely to the internal operations of the other political party (see, Matter of Stempel v Albany County Bd. of Elections, 60 NY2d 801; Matter of Wydler v Cristenfeld, 35 NY2d 719). Here, while respondents did not commence judicial proceedings and only filed objections, the same reasoning should be applied. The nature of the objections at hand, like the objections in the above cited cases, relate to the internal regulation of the affairs of another political party. Only members of that political party should be entitled to challenge actions taken in relation to such internal matters. It is true that Election Law § 6-154 (2) permits objections to a nomination to be filed by "any voter registered to vote for such public office”. This provision, however, should be construed in light of the above case law. Standing to file objections should be denied where they relate to the internal operations of another political party. Respondents, as Republican Party members, thus should not have been permitted to file objections to the internal workings of the Democratic Party’s nominating procedures.*

The only reason petitioners were placed in the position of having to seek a judicial remedy was as a direct result of respondents’ actions for which they had no standing. Therefore, if this Court made a determination that petitioners, by failing to verify their petitions, are barred from pursuing their judicial remedy, that would enable respondents to achieve indirectly what they could not achieve directly, i.e., the removal of petitioners from the ballot. Thus, Supreme Court’s judgment granting the petitions should be affirmed.

In this regard, we specifically note that a review of the record reveals that the proceedings were timely commenced. We have examined respondents’ remaining arguments in favor of reversal and find them either academic or lacking in merit.

Cardona, P. J., Mikoll and Peters, JJ., concur.

Yesawich Jr., J. (dissenting). We respectfully dissent, and

[*925] vote to reverse and. dismiss the petitions as jurisdictionally deficient. As the majority notes, a proceeding of this type must be commenced by verified petition (see, Election Law § 16-116; Matter of Goodman v Hayduk, 45 NY2d 804, 806; Matter of O’Connell v Ryan, 112 AD2d 1100, Iv denied 65 NY2d 607; Vaughn v Withers, 153 AD2d 712), and the failure to satisfy this requirement prior to expiration of the applicable Statute of Limitations, as occurred here, has repeatedly been held to deprive the court of jurisdiction, compelling dismissal (see, Matter of Haberstro v Scholl, 213 AD2d 1082; Matter of O’Connell v Ryan, supra). In our view, notarization of a signature cannot substitute for the statutorily mandated form of verification; it is not our prerogative to relax the standards set by the Legislature in this regard (see, Matter of Alper v Hayduk, 71 AD2d 935).

Petitioners’ arguments to the contrary notwithstanding, this is not the type of technical requirement that was eased by the Election Reform Act of 1992 (L 1992, ch 79), which was intended to liberalize the intricate provisions for preparing and filing designating petitions (see, L 1992, ch 79, § 14 [15]; Governor’s Mem, 1992 McKinney’s Session Laws of NY, at 2877; see also, Matter of Cozzolino v Columbia County Bd. of Elections, 218 AD2d 921, Iv denied 86 NY2d 704). Unlike the specifications involving the format, binding, and filing of petitions, the verification requirement is directly aimed at preventing fraud (compare, Matter of Hogan [Montgomery] v Goodspeed, 196 AD2d 675, 677-678, affd 82 NY2d 710).

And, inasmuch as the Legislature has not seen fit to impose a lesser burden on a person seeking to obtain or retain a place on the ballot, than on one who objects to another’s candidacy, we find that distinction to be an insufficient reason for disregarding a mandate that is directed toward satisfying the core objectives of the Election Law.

Casey, J., concurs. Ordered that the judgment is affirmed, without costs.

We also agree with petitioners’ contention that the Board improperly invalidated their certificates of nomination without convening a quorum of all three Commissioners (see, Election Law § 3-100 [4]). Here, it is undisputed that only one Commissioner made the determination invalidating petitioners’ certificates of nomination.