Settineri v. DiCarlo , 605 N.Y.S.2d 95 ( 1993 )

—In consolidated proceedings pursuant to Election Law article 16, inter alia,, to invalidate certificates of nomination filed with the Board of Elections of the City of New York purporting to nominate Robert J. DiCarlo as the candidate of the Republican Party for the office of Senator from the 23rd Senatorial District, Kings and Richmond Counties, Robert J. DiCarlo, Olga Igneri, William D. Powers, the New York Republican State Committee, the Kings County Republican County Committee and the Richmond County Republican County Committee appeal, as limited by their respective briefs, from stated portions of an order and judgment (one paper) of the Supreme Court, Kings County (Garry, J.), dated October 20, 1993, which, among other things, invalidated the nominating certificates; the petitioners in Proceeding No. 1 and the proposed intervenor Arthur Bramwell appeal, as limited by their brief, from so much of the same order and judgment as (1) declined to extend the September 21, 1993 deadline to nominate a new Republican candidate for office of Senator from the 23rd Senatorial District, (2) as denied the application of Bramwell, the newly elected Kings County Republican County Committee Chairman, for leave to intervene in the proceedings, and (3) denied the application of the petitioners in Proceeding No. 1 to substitute new counsel for the Kings County Republican County Committee.

Ordered that the order and judgment is affirmed, without costs or disbursements.

Election Law § 2-106 (4) provides that State and county committee members "shall hold office until the next election at which members of the committee are elected”. On September 21, 1993, seven days after the primary at which new members were elected, the outgoing Kings and Richmond County Republican Committee Chairpersons filed two certificates purporting to nominate Robert J. DiCarlo as the candidate of the Republican Party for the office of Senator from the 23rd Senatorial District, pursuant to Election Law §§ 6-116 and 6-158 (6), as well as Rules of the New York Republican State Committee § 16 (B). As the Supreme Court found, these outgoing party officials were "functus officio”, and were without power to act upon "substantial matter[s]” such as nominations, although they had the power to carry out purely interim administrative functions (see, Matter of McDonald v Heffernan, 300 NY 488; Matter of Torchin v Cohen, 286 NY 544; Matter of Mazur v Kelly, 170 AD2d 1037; Matter of Bauman v Fusco, 21 AD2d 470). The nominating certificates filed by them were therefore properly ruled to be invalid.

New York State’s statutory scheme requires that a certificate of a party nomination for an office to be filled at the time of a general election must be filed after the fall primary election, but not later than seven days after that election (see, Election Law § 6-158 [6]; see also, Election Law §§ 6-116, 2-112; Rules of NY Republican State Comm § 16 [B]), and the failure to file a certificate within the statutory time frame constitutes "a fatal defect” (Election Law § 1-106 [2]). The courts are normally without discretionary power to excuse such a defect, and there are no extraordinary or exigent circumstances present here that might justify judicial intervention (see, Matter of Hurd v Stout, 60 NY2d 787; Matter of Gammerman v Board of Elections, 57 NY2d 888; Matter of Carr v New York State Bd. of Elections, 40 NY2d 556; Matter of Hicks v Egan, 166 AD2d 735; cf., Matter of Berg v Cuomo, 85 Misc 2d 925). We note that the evidence adduced at trial was unrefuted that, when requested to do so, the Board of Elections expedited its canvasses, and could have certified the newly elected committee members within approximately three days. As the Supreme Court observed, although the seven-day deadline was difficult to meet, it was not impossible. Apparently the rival factions within the party simply refused to act with the requisite dispatch out of fear that the other side would gain control.

We have considered the parties’ remaining contentions and find them to be without merit. Miller, Santucci and Joy, JJ., concur.