ATWOOD, PATRICE v. PRIDGEN, MARKIETH ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
708.1
CAE 16-01451
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF PATRICE ATWOOD, ET AL.,
PETITIONERS-RESPONDENTS,
V MEMORANDUM AND ORDER
MARKIETH PRIDGEN, ET AL., RESPONDENTS,
MAURICE MCCRAY AND SAMUEL DAVIS,
RESPONDENTS-APPELLANTS.
PETER A. REESE, BUFFALO, FOR RESPONDENTS-APPELLANTS.
JEROME D. SCHAD, WILLIAMSVILLE, AND MURPHY MEYERS LLP, ORCHARD PARK
(REBECCA HOFFMAN OF COUNSEL), FOR PETITIONERS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered August 17, 2016 in a proceeding pursuant to
Election Law article 16. The order, among other things, granted
petitioners default relief against respondents Samuel Davis and
Maurice McCray.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioners commenced this special proceeding
pursuant to Election Law article 16 seeking to invalidate the
designating petitions of various respondents who sought to be
designated as candidates for the party office of Member of the Erie
County Democratic Committee in the September 13, 2016 primary.
Petitioners moved to strike the answer of respondents on the ground
that it was unverified. One week later, Supreme Court accepted an
amended verified answer of respondents, but it was still not verified
by respondents Samuel Davis and Maurice McCray. The court therefore
granted default relief to petitioners against Davis and McCray. The
court also denied respondents’ motion to dismiss the petition on the
ground of improper joinder. At a subsequent appearance another week
later, respondents offered the verification of Davis and asked the
court to reconsider its earlier default ruling, which it declined to
do. The court issued its order encompassing its decisions, and Davis
and McCray now appeal.
As a preliminary matter, we note that, despite the court’s
determination that Davis and McCray were in default, we reach the
merits of the issues they raise on appeal inasmuch as those issues
were “the subject of contest below” (James v Powell, 19 NY2d 249, 256
-2- 708.1
CAE 16-01451
n 3, rearg denied 19 NY2d 862).
We reject the contention of Davis and McCray that petitioners
improperly joined respondents in one proceeding. All respondents were
candidates for the same office, and petitioners sought to invalidate
their designating petitions based on fraud, error, and
misrepresentation in the collection of signatures on designating
petitions. We agree with the court that there existed “the same . . .
series of transactions or occurrences,” and there were “common
question[s] of law or fact” (CPLR 1002 [b]), thus making joinder of
respondents permissible.
We reject the further contention of Davis and McCray that the
answer did not need to be verified. A special proceeding pursuant to
Election Law article 16 must be brought by a verified petition (see
Election Law § 16-116; Matter of Goodman v Hayduk, 45 NY2d 804, 806),
which in turn demands a verified answer (see CPLR 3020 [a]). The
court did not abuse its discretion in refusing to allow Davis to
correct the defect at a later appearance. Election Law proceedings
have strict time deadlines, and the court had already permitted
respondents to amend their verified answer to correct omissions in the
initial verification.
Entered: September 7, 2016 Frances E. Cafarell
Clerk of the Court