Farrell v. Morrissey

Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered September 1, 2006 in a proceeding pursuant to Election Law § 16-110 (2). The order granted the petition.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that there was sufficient evidence presented to the court of a concerted effort by respondents to take control of the Cayuga County Independence Party (Party) in that respondents all enrolled in the Party during a relatively short period between June and October 2005 and, upon enrollment, petitioned to be members of the Party Committee. Almost all had some relationship to respondent James Morrissey.

When noticed for a Party hearing to determine whether respondents were in sympathy with the principles of the Party, no respondent appeared or offered any explanatory evidence. At the court hearing, respondents again did not appear or offer any defense to the petition seeking to cancel their enrollment in the Party. Therefore petitioner’s determination was just and consistent with Election Law § 16-110 (2) in that it must be presumed that respondents are not in sympathy with the principles of the Party (see Matter of Zuckman v Donohue, 274 App Div 216, 218 [1948], affd 298 NY 627 [1948]).

All concur except Martoche and Smith, JJ., who dissent and vote to reverse in accordance with the following memorandum.