Berman v. Board of Elections , 506 N.Y.S.2d 76 ( 1986 )

— In a proceeding to invalidate a petition designating Frederick B. Miller as a candidate in the Liberal Party primary election to be held on September 9, 1986, for the public office of New York State Senator for the 9th Senatorial District, the appeal is from a judgment of the Supreme Court, Nassau County (McGinity, J.), entered August 15, 1986, which, inter alia, granted the application.

Judgment reversed, on the law, without costs or disbursements, application denied, and the Board of Elections of the County of Nassau is directed to place Mr. Miller’s name on the appropriate ballot.

The appellant Frederick B. Miller is the replacement candidate substituted by the committee on vacancies following the declination of the candidate for whom the designating petition was filed. On appeal, he does not contest the hearing court’s adverse determination with respect to the validity of the designating petition and instead attacks the proceeding on jurisdictional grounds. We agree that, under the circumstances of this case, the failure of the petitioner to serve the committee on vacancies requires dismissal of the proceeding for failure to join a necessary party (CPLR 1001 [a]). As required by the Election Law, the designating petition named a candidate and a committee on vacancies (Election Law § 6-132). Upon the declination of the named candidate, the members of the committee on vacancies were called upon to exercise their function and substitute another candidate, but their power to do so was dependent upon the validity of the designating petition. Under these circumstances, the committee on vacancies became a necessary party for purposes of any proceeding challenging the validity of the petition.

In view of the foregoing, the appellant’s remaining contentions are rendered academic and need not be addressed. Mollen, P. J., Mangano and Rubin, JJ., concur.