Petitioner Fred Beardsley is the designated candidate for the office of Oswego County Treasurer on the Republican party line for the November 5, 2013 election. Petitioner maintains that he is an "aggrieved candidate" under New York Election Law §16-102[1]. Respondent Kurt Ferris has filed designating petitions to be the candidate on the Democratic party line for the office of Oswego County Treasurer.

The record before the court consists of the following filings:

A. Papers

a]Petitioner's Order to Show Cause granted July 24, 2013, said Order to Show Cause filed in the Oswego County Clerk's Office at 9:48 am on July 24, 2013 including the petition verified July 23, 2013 with attached exhibits A and B annexed thereto;

b]Verified Answer on behalf of the Oswego County Board of Elections dated July 26, 2013 with exhibits A-C attached thereto;

c]Amended Verified Answer of Oswego County Board of Elections Democratic Commissioner Richard L. Atkins duly verified August 8, 2013 with exhibits 1-10 attached thereto;

d]Attorney Affidavit of Douglas McRae, Esq. sworn to August 8, 2013;

e]Memorandum of Law in Opposition to Petitioner's Article 78 Petition on behalf of Democratic Commissioner Richard L. Atkins dated August 8, 2013;

f]Memorandum of Law in Support of Petitioner's Order to Show Cause dated August 9, 2013;

g]Affidavit of Oswego County Board of Elections Republican Commissioner Carol Peggy Bickford sworn to August 12, 2013;

h]Hearing Brief on behalf of Democratic Commissioner Richard L. Atkins dated August 16, 2013; and

i]Letter Memorandum of Law on Behalf of Petitioner Fred Beardsley, dated August 19, 2013.

B. Court Exhibits

Court Exhibits 1-6 comprising documents offered by petitioner's counsel and/or counsel for the Oswego County Board of Elections and/or respondents' counsel:

a]Exhibit 1 — Designating Petitions and volume sheets of Kurt Ferris as candidate for Oswego County Treasurer consisting of 130 pages of Designating Petitions and 5 Volume pages;

b]Exhibit 2 — Rulings by Republican Commissioner Bickford to objections/specifications filed by Petitioner Beardsley;

c]Exhibit 3 — Rulings by Democratic Commissioner Atkins on objections/specifications filed by Petitioner Beardsley;

d]Exhibit 4 — Oswego County Board of Elections Rules for Filing Objections/Specifications [first page] , inclusive of page four, Request for Access to or Copying of Public Records by Fred Beardsley dated July 12, 2013, to review, examine the filings on behalf of Kurt Ferris for his designation as Oswego County Treasurer. The Request for Access to Public Records filed by Peggy Bickford on behalf of Fred Beardsley requesting copies of cover sheets on Kurt Ferris' designating petitions. The determination of the Oswego County Board of Elections Commissioner Atkins and Bickford sent to Kurt Ferris on July 24, 2013 by mail indicating his petitions were found valid;

e]Exhibit 5 — Ruling of Republican Commissioner Bickford finding that Kurt Ferris needed 899 valid signatures and 210 thereof were invalid, finding the designating petitions invalid.; and

f]Exhibit 6 — Ruling of Democratic Commissioner Atkins wherein he found out of 920 signatures submitted, five were invalid for a total valid of 915 and ruled the petition valid.

The petitioner seeks an order pursuant to New York Civil Practice Law and Rules article 78 [*3]and New York Election Law §16-102 seeking to invalidate and declare null and void as legally insufficient, the designating petitions filed by respondent Kurt Ferris as the candidate for the position of Oswego County Treasurer for the November 5, 2013 election.

Petitioner maintains, and it was stipulated, that for the race of Oswego County Treasurer for the November 5, 2013 election, respondent Ferris was obligated to have at least 899 valid signatures from enrolled voters of the Democratic party to qualify to be placed on the ballot for the election. The respondent Kurt Ferris filed his petitions consisting of 130 pages interspersed with an additional five volume sheets in the Oswego County Board of Elections on July 11, 2013, the last day for filing petitions. On July 12, 2013, petitioner Fred Beardsley filed in the Oswego County Board of Elections, a Request for Access to Public Records stating in part B thereof: "I wish to examine the following documents: 1. Kurt Ferris County Treasurer Oswego County Party Democrat" [Court's Exhibit 4]. On July 12, 2013 petitioner filed with the Oswego County Board of Elections, general objections to the designating petitions of Kurt Ferris for Oswego County Treasurer for the November 5, 2013 [see Exhibit A attached to Kurt Ferris' petition]. The objections were sent certified mail to Kurt Ferris on July 15, 2013. On July 15, 2013, within three days from filing the general objections, the petitioner filed specific objections as to various pages and line numbers on each page of the designating petitions of Kurt Ferris [see Exhibit A attached to petition of petitioner]. The specific objections consisted of nineteen pages filed as an attachment to the specific objections cover sheet filed by petitioner Beardsley wherein he referred to all 130 pages of the designating petitions filed by respopndent Ferris as Volume 1. Petitioner delineated each numbered sheet, and each line thereon, with his specific objections [see Exhibit B attached to petition]. Petitioner commenced the instant article 78 proceeding on July 24, 2013 in that the determination of Commissioner Atkins had not been conveyed regarding his ruling on the objections/specifications filed by the petitioner prior to that date [see ¶ 11 of Petition].

On July 16, 2013 candidate Kurt Ferris had filed an amendment to the volume page on Volume Three of his designating petitions wherein it was written that designating petitions numbered 54-60 were for the Fifth Judicial District Convention [see Court's Exhibit 1, volume 3, page 2]. On July 17, 2013 Commissioner Bickford considered the specific objections and specifications filed by petitioner regarding 999 signatures. In reviewing the 999 signatures, Commissioner Bickford found 210 leaving 789 valid — a number insufficient for nomination [the second page of her ruling contained in Court's Exhibit 5 was testified to be in error by Commissioner Bickford at hearing]. Commissioner Atkins found that there were 920 signatures filed and found five invalid leaving a balance of 915 signatures a number sufficient for respondent Ferris to be placed on the ballot for the November 5, 2013 election. The ruling of Commissioner Atkins is pertinent to the case as contained in paragraph 2 and 3 of his Ruling he indicated the rules of the Oswego County Board of Elections [Court's Exhibit 4] mandated that each specification and objection must be referred to by volume [emphasis added], page and line. Since Petitioner denominated all 130 designating petitions to be contained in volume 1 and, in fact, candidate Ferris had five separate volumes in his filings, Commissioner Atkins could not consider any specifications past page 37 of the designating petitions filed. The designating petitions filed by Ferris indicate that volume 1 consisted of pages 1-37 of the designating petitions. Volume 2 consisted of pages 38-50 of the designation petitions. Volume 3 consisted of pages 51-75 of the designating petitions. Volume 4 consisted of pages 76-100 of the designating petitions and Volume 5 consisted of pages 101-130 of the designation petitions. The [*4]cover sheets of each separate volume however do not indicate on the cover sheet the beginning or end of each volume by pages. Since Commissioner Atkins' position was that Petitioner Beardsley only designated volume 1 on his specifications and objections, he could not consider any designating petitions objections and specification past page 37, the end of volume 1 as filed by Ferris. Since the commissioners did not concur on a finding of invalidity of Ferris' petitions, they were presumptively valid pursuant Election Law §6-154.

Petitioner brought the within article 78 proceeding to invalidate the designating petitions of Kurt Ferris for allegedly having insufficient signatures below the necessary requirement of 899. The objections and specifications petitioner filed in the Oswego County Board of Elections on July 12th and July 15th respectively were marked as Exhibits "A" ans "B" to the petition. In paragraphs five and six of the petition, Exhibits "A" and "B" were referenced by petitioner,

The petition was duly verified on July 23, 2013. Petitioner maintains that when he went to the Board of Elections and filed the access to public records statement of July 12, 2013, he was given copies of the 130 pages of designating petitions with no separation or separate volume sheets attached or inserted. Therefore petitioner maintains he listed specifications of objections as contained in the volume 1 because there was no other documentation which he reviewed or was given indicating that any other volume other than a volume 1, consisting of 130 pages. Commissioner Atkins maintained that Mr. Beardsley would have been given a copy of the Rules of the Board of Election upon filing objections and that he would be well aware of the volume separation mandate. Furthermore, petitioner maintains that the obligation pursuant to Election Law §6-154[2] to follow any rules of Oswego County Board of Elections apply to an "objector" under §6-154, but do not apply to an "aggrieved candidate" which he is as the designated republican candidate for Oswego County Treasurer. Petitioner maintains that an "aggrieved candidate" does not have to file specifications and objections with a County Board of Elections in order to have de novo review of the designating petitions and volume sheets by a court pursuant to §16-102 of the Election Law. Commissioner Atkins maintains that since the petitioner filed objections and specification with the County Board of Elections, he may only proceed in court as an "objector" and not as an "aggrieved candidate." Furthermore, Commissioner Atkins maintains in his Hearing Brief dated August 16, 2013, that there is no indication anywhere in the petition of petitioner that he was filing the court action as an "aggrieved candidate." Therefore, Commissioner Atkins maintains Beardsley is bound to follow the Oswego County Board of Election rules pursuant to §6-154 as an "objector."

The court held a hearing on factual matters raised in the petition and the amended answer filed by Commissioner Atkins as well as the affidavit filed by Commissioner Bickford. Respondent Kurt Ferris did not file an answer in this matter and therefore is bound to abide this court's ruling.

The hearing held on August 20, 2013 took place wherein the petitioner proceeded to call himself to testify as well as Maryanne Ingerson, Republican Deputy Commissioner of Elections; and Republican Commissioner Bickford. Commissioner Atkins called himself to testify. The court received, pursuant to stipulation and/or offer in court, Court's Exhibits 1-6 as aforesaid. The testimony of all witnesses was unimpeached. Insofar as Commissioner Atkins testimony is concerned, he was not privy to the events of the giving of the copies of the 130 designating petitions to petitioner on July 12, 2013. His testimony in essence maintained that the policy of the Board of [*5]Elections was that if you asked for designating petitions, you received designating petitions. If you did not specifically ask for volume cover sheets, you did not receive volume cover sheets.

Maryanne Ingerson testified that she copied the 130 designating petitions pursuant to the Request for Access to Public Records filed July 12, 2012 by petitioner [Court's Exhibit 4]. She specifically testified that she did not include the five separated volume sheets wherein each designating petition therein started at a certain page number and ended at a certain page number in each volume. She testified that she gave Beardsley 130 pages when in fact if the volume cover sheets had been included, the filings would have consisted of 135 pages. Ms. Ingerson further testified that the Deputy Democratic Board of Elections Commissioner Theresa Munger worked with her on providing the material to Mr. Beardsley on July 12, 2013 as it was appropriate for both Deputy Commissioners to work to provide that information at the same time. Ms. Ingerson further testified that Beardsley was never given the original filings of Kurt Ferris to review which contained the delineation with the five volume sheets and therefore he never saw them. Lastly, Commissioner Bickford testified that on July 19, 2013 she filed a request on behalf of petitioner for access to public records for the five volume sheets that had been omitted to be given him on July 12, 2013.

Commissioner Atkins testified the Oswego County Board of Elections Rule 6[a] [Court's Exhibit 4] states that each specification and objection must be referred to by volume, page and line. Kurt Ferris' petitions were separated into five different volumes. Since petitioner only referred to one volume in his specifications, petitioner violated the rules of the Oswego County Board of Elections and therefore Commissioner Atkins could not count any pages past page 37 which was the end of volume 1 as filed by Ferris. Commissioner Atkins further testified that if he had reviewed all 920 signatures, he would have found 94 invalid leaving 826 valid signatures. He would have therefore found respondent Ferris' designating petitions insufficient to place the respondent Ferris on the ballot for the November 5, 2013 election [Transcript at p. 77 hereinafter known as T.]

The mandate of the required number of signatures in the Oswego County Treasurer's race is contained in Election Law §6-136[2] which provides:

...All other petitions must be signed by not less than five per centum, as determined by the preceding enrollment, of the then enrolled voters of the party residing within the political unit [in our case County of Oswego] in which the office or position is to be voted for...provided, however, that for the following public offices the number of signatures need not exceed the following limits:...[e] For an office to be filled by all the voters of cities or counties, containing more that twenty-five thousand and not more than two hundred fifty thousand inhabitants, according to the last preceding federal enumeration, one thousand signatures:...

In the case of the County of Oswego Democratic party, both commissioners stipulated that the required number of signatures are 899, which therefore must be five percent of the registered Democrats in Oswego County pursuant to the last preceding federal enumeration.

In order to become a designated candidate on a ballot, the State of New York, through its Assembly, Senate, and Governor, have passed legislation requiring a certain number of valid signatures for any candidate to be listed on a county wide race in the County of Oswego. To allow a candidate to appear upon a ballot with less than the required number of signatures would undermine the legislative intent that a valid number of signatures be on the designating petitions in order for a candidate to run in a county wide election. A person seeking to invalidate designating [*6]petitions for lack of the required number of signatures is requiring the candidate that files the designating petitions to follow the law. A petitioner who seeks to invalidate petitions for lack of the required number of signatures is requesting that the law be adhered to. The person who seeks to be on the ballot with an insufficient number of valid signatures would be violating the law if placed on the ballot with such insufficient number of valid signatures.

The threshold issue the court has to resolve, which may be determinative of the underlying proceeding, is whether petitioner Beardsley may file the petition as an "aggrieved candidate." Pursuant to Election Law §16-102[1], there are three species of persons who may file to contest the validity of designating petitions and/or nominating petitions. Those specific categories are [1] an aggrieved candidate, [2] the chairman of a party, and [3] an objector who has filed objections pursuant to Election Law §6-154. Relative to the alleged failure of petitioner to file specifications of objections pursuant to the Oswego County Board of Elections' rule which mandate that they must refer to each volume, that rule does not apply to an "aggrieved candidate" or a party chairman. The attorney for Commissioner Atkins stipulated as such prior to the proceeding commencing on August 20, 2013. The only statutory direction that objections and specification be filed are contained in §6-154[2] of the Election Law which only refers to "objectors." The case law is clear that an aggrieved candidate, while obligated to file specifications of the manner in which he/she contests an opposing candidate's designating petitions, does not have to comply with the rules of a county board of elections in that there is no mandate that an aggrieved candidate file objections and specifications with the board at all. In Codd v. Barbaro, 111 Misc 2d 135 [Sup. Ct. 1981], the court stated:...In the case of an aggrieved candidate', however, the failure to file objections does not prevent the candidate from establishing in court that the petition is invalid. Section 16-102; Loucky v. Buchanan, 49 AD2d 797, 373 N.Y.S.2d 414 [4th Dept. 1975]...[Id. at 136; see also, Grancio v. Coveney, 60 NY2d 608 [1983]; Kantha v. Scaglione, 242 AD2d 345 [2nd Dept. 1997]; Le Sawyer v. Board of Elections of Columbia County, 207 Misc.12 [S.Ct. 1954]. Therefore if it is determined that Mr. Beardsley is an "aggrieved candidate" and filed his petition before the court as such, then the rules of the Oswego County Board of Elections regarding separation by volume pages does not apply to him.

The verified petition filed by petitioner Beardsley states in paragraph 1: "Petitioner...and is the Republican candidate for the office of Oswego County Treasurer in the general election to be held November 5, 2013..." The original verified answer filed on behalf of the Board of Elections dated July 26, 2013 in paragraph 1 admits that filing status by Beardsley. The amended answer of Commissioner Atkins verified August 8, 2013 in paragraph 1 thereof admits that same filing status of Beardsley. Nowhere in the petition filed by Beardsley is there any statement or inference that he is filing the petition as an "objector" pursuant to Election Law §6-154. In Matter of Dillon v. Roberts, 193 Misc. 6 [S.Ct., 1948], mod., 274 A.D. 911, the court stated:...A candidate for public office has a justiciable interest in the regularity of the public proceeding antecedent to the election as well as the election itself. By appropriate proceedings he may see to it that the processes prescribed by law for the election are carried out conformably with the statutory direction. This would include the important right to require that candidates who are nominated against him, by whatever means, are placed upon the official ballots according to law... [*7]

[Id. at 7]. The court went on to state:

...And throughout the whole statute [§330 of the Election Law, predecessor to §16-102 of the Election Law] the word candidate' is used both in the sense of a candidate for party nomination and in the sense of candidate for public office. In the latter sense there could be no aggrieved candidate' in the respect of the nomination of another candidate' unless he were of a different party or designated by an independent nomination...

[Id. at 8]. In the case of Matter of Burns v. Wiltse, 200 Misc. 355 [Sup. Ct. 1951], in regard to determining whether a person could file as an aggrieved candidate, the court stated:

...The contention is made that the petitioner is not an aggrieved candidate within the meaning of Section 330, subdivision 2 of the Election Law [predecessor to §16-102 of the Election Law]. The Supreme Court is vested with jurisdiction to summarily determine any questions of law or fact relative to the subjects set forth in the section. Specifically this court has jurisdiction to determine questions of law and of fact relative to the nomination of a candidate in a proceeding instituted by any candidate aggrieved. The word aggrieved' has been defined as one who is prejudiced; a denial of some personal or property right. The party aggrieved must in good faith have some interest in the subject matter [citations omitted]...The term candidate is not defined in the Election Law. The meaning of the term is that ordinarily and customarily understood. Primarily it means one who seeks an office or honor...Therefore an aggrieved candidate would be one prejudiced in seeking office by the acts of the nominating body either through the fraud active or passive of that body, or a substantial mistake or misunderstanding or by the nomination of an individual not eligible for the office to which he has been nominated...[Id. at 356,357 reversed on other grounds, 279 App.Div. 36 [4th Dept. 1951]]. In the case of Matter of Wydler v. Cristenfeld, 35 NY2d 719 [1974], the Court of Appeals had reason in the concurring opinion of Judge Jasen to define an aggrieved candidate. Judge Jasen stated:

...Moreover, the Legislature has not seen fit to draw more narrowly the definition of candidate aggrieved' under section 330 of the Election Law, thereby tacitly approving the interpretation placed thereon by the courts for these many years...

[Id. at 721]. Furthermore, Judge Jasen stated:

...Within the intendment of section 330 of the Election Law, the petitioner, the candidate of another political party for the same office as respondent, is a candidate aggrieved' and, hence, has the requisite standing to maintain this proceeding. Until today, it was clear beyond cavil that the candidate of one party may institute a proceeding to invalidate the designation or nomination of another party's candidate...The rationale most often articulated by the courts is that the candidate of another political party has a substantial interest in the question of whether a political opponent has been property designated or nominated. This is but another way of saying that a political opponent has the requisite stake in the outcome to insure a true adversarial, a full and a fair, exposition of the legal issues involved...

[Id.]. In the case of Matter of Collins v. Kelly et al, 253 AD2d 571 [3rd Dept. 1998], a party chairman brought action to invalidate certain designating petitions. The action was brought under §16-102 of the Election Law. At the same time the party chair was also a candidate for the office for which he sought to invalidate the petitions of the other candidate. The court stated:

...Initially, we agree with petitioner's contention that he has standing to maintain the instant proceeding. Election Law §16-102[1] provides that an aggrieved candidate, a chair of any party [*8]committee or a person who has filed an objection may commence a proceeding contesting a designation of any candidate for any public office...Here, petitioner commenced the proceeding in his capacity as an aggrieved candidate. While a party chairperson cannot circumvent the limitations of challenging a designation imposed by Election law §16-102[1] by purporting to commence a proceeding on the alternative basis of an objector we decline to extend the logic of these cases to divest an aggrieved candidate of his or her ability to challenge a designating petition. In our view, an aggrieved candidate, who also happens to be a party chairperson, is not limited from challenging a designating petition under these circumstances. We accordingly hold that petitioner has standing to commence the instant proceeding as an aggrieved candidate...

[Id. at 572].

Commissioner Atkins, through his attorney in his memorandum of law entitled "Hearing Brief" dated August 16, 2013, cites two cases in support of their premise that petitioner Beardsley can only file his proceeding under §16-102 as an "objector" and not as an "aggrieved candidate." Cited in support thereof is the case of Voyticky v. New York City Board of Elections, 224 AD2d 565 [2nd Dept. 1996]. This court has researched the record on appeal in that case for that citation, the case which was determined was that of James C. Sullivan et al, petitioner, verses Dennis P. Gallagher et al, objectors. The court has reviewed the complete record on appeal in that case and there is within there several other election cases inclusive of Francis C. Voyticky, petitioner. The only order this court could find therein was relative the James Sullivan case. Furthermore, the determination of the Appellate Division in Voyticky stated that the court did not improvidently exercise its discretion in denying the appellant's motion to amend the petition to allege that the appellant has standing as an aggrieved candidates. Voyticky was decided February 15, 1996. It can reasonably inferred that a court, or an appellate court, is cognizant of its prior rulings when issuing decisions. In the Matter of Klein v. Garfinkle, 12 AD3d 604, [2nd Dept. 2004], the same Appellate Court that ruled in Voyticky, denying therein the motion of petitioner to allow the petitioner to amend his petition as an "aggrieved candidate" as a matter of discretion, ruled in Klein that the petitioner who hadn't filed as an "aggrieved candidate" had standing in such capacity and stated:

...Contrary to the determination of the Supreme Court, the omission from the petition of allegations that the petitioners were aggrieved candidates [emphasis added] did not mandate denial of the petition and dismissal of the proceeding...

[Id. at 604]. It would seem irreconcilable that the Second Department would not reference their decision in Voyticky when stating clearly that the petitioner in Klein being an aggrieved candidate did not have to state that status in his petition in order to maintain the proceeding as an aggrieved candidate.

The second case cited on behalf of the Commissioner Atkins in support of his position that petitioner cannot file as an "aggrieved candidate" was that of Sgambati v. New York City Bd. of Elections, 224 AD2d 564 [2nd Dept. 1996] . The court, in reviewing that case, finds no authority for the premise that the attorney for Commissioner Atkins makes as that case did not state anything regarding the status of the filing of the person as an aggrieved candidate or not.

In the case of Martin v. Tutunjian, 89 AD2d 1034 [3rd Dept. 1982], the court stated:

...Special Term dismissed the proceeding on the ground petitioner's objections to the designating petition of respondent Conway were not filed within the time prescribed by subdivision 2 of section 6-154 of the Election Law [emphasis added]. It is not disputed, however, that petitioner is the [*9]Republican Party candidate for the office in question by virtue of his being the only candidate for the Republican nomination. Petitioner is therefore an aggrieved candidate and may institute a proceeding to challenge the designating petition without reference to compliance with section 6-154 [emphasis added][citations omitted]...

[Id.].In the Matter of Stempel v. Albany County Bd. of Elections, 97 AD2d 647 [3rd Dept. 1983], affd, 60 NY2d 81, the court referenced Martin v. Tutunjian, supra, and stated in regard to that:

...In Martin, the validity of a designating petition was challenged for legal insufficiency for failure to comply with the requirements of section 6-132 of the Election Law in that the petition failed to indicate the office being sought. A defect of this nature which deals with the legislatively mandated content of a nominating petition is a matter of substance and not of form. Such a defect is fatal and gives rise to the right of an election opponent to challenge the legality of the designating petition, thus clothing the opponent with the required status as an aggrieved candidate'...

[Id. at 648]. The fact of the matter is, petitioner is the Republican candidate for Oswego County Treasurer. The fact that he did not denominate in his petition that he filed as an "aggrieved candidate" is of no merit. Mr. Beardsley is what he is. He cannot separate himself from being an aggrieved candidate and there is, pursuant to the aforesaid case law, no obligation that this court is aware of that he separately denominate that he is filing solely as an objector under §6-154 or as an aggrieved candidate or both. Since he has the ability to file in both capacities, the fact that he may have filed objections and specifications in the County Clerk's Office on July 12th and July 15th, does not forestall him from bringing an action under §16-102 in Supreme Court for a de novo review of the designating petitions of Mr. Ferris in his capacity as an "aggrieved candidate". Therefore the court finds that petitioner has filed the proceeding as an "aggrieved candidate."

The court has ruled that it has found that Mr. Beardsley was an aggrieved candidate under §16-102 of the Election Law and filed his petition in that capacity. The Commissioner Atkins both in the original answer and the amended answer, admitted that Mr. Beardsley was the Republican candidate for Oswego County Treasurer. There was no affirmative defense filed in either answer or amended answer asserting the lack of standing of the petitioner as an aggrieved candidate, nor was there any motion to dismiss for lack of standing as an aggrieved candidate. In the case of Klein, supra, in regard to the challenge to the petitioner to establish sufficient facts that he had standing as an aggrieved candidate, the court said: "...However, as the issue of standing was not raised as an affirmative defense in an answer or in the pre-answer motions to dismiss the petition, the issue was waived." [Id. at 604]. This court further finds that since no affirmative defense of lack of standing as an aggrieved candidate was raised by Commissioner Atkins in the answer or amended answer, nor was there any motion to dismiss for lack of standing in that capacity filed, the respondent has waived the standing issue.

While not necessary to determine the within standing of the petitioner as an aggrieved candidate, the court will address the issue of petitioner's application to amend the caption to include his status as an aggrieved candidate contained in the Letter Memorandum of Law dated August 19, 2013 of the attorneys' for the petitioner. [*10]

The amended verified answer was verified August 8, 2013 by Commissioner Atkins. The petitioner would have been entitled as of right to file an amended petition alleging the status as an aggrieved candidate had he been inclined to do so. Commissioner Atkins, in his attorney's Hearing Brief, maintain that petitioner brought his proceeding solely as an objector. Commissioner Atkins states:

...Allowing Petitioner Beardsley to change his status and standing now (after the statute of limitation has passed) to an aggrieved candidate' and to change the focus of this hearing upon its eve is unduly prejudicial. Commissioner Atkins and , likely Respondent Ferris would have taken a different approach to a Petition brought by an aggrieved candidate'....

[Hearing Brief at pp. 1-2]. At the hearing on August 20, 2013, the court allowed both parties to argue relative to their positions, more particularly as to whether or not respondent Ferris could file as an aggrieved candidate. The attorneys for petitioner Beardsley and Commissioner Atkins declined to argue their respective positions. More pertinent however, there has been no showing to this court how Commissioner Atkins would be "unduly prejudiced" by allowing the petitioner to proceed as an aggrieved candidate. Insofar as what respondent Ferris may have done, same has no bearing in this case because he did not file an answer to the proceeding.

In the case of MacKay v. Johnson, 54 AD3d 428 [2nd Dept. 2008], a respondent was a candidate for the Independence party wherein a petition was brought to invalidate the petitions designating Craig Johnson as a candidate for nomination of the Independence party for New York State Senate. Frank MacKay was the original petitioner seeking to invalidate the aforesaid petitions. One Barbara Donno was designated the candidate for the State Senate position by the executive committee of the State Independence Party. Donno was originally designated as a respondent in the proceeding brought by MacKay. The court allowed the amendment of the petition to insert Donno as a petitioner in that:

...Contrary to Johnson's contentions, the Supreme Court properly amended the caption to designate Donno as a petitioner. "Defects, mistakes, and irregularities in pleadings are to be ignored by the court absent a showing of prejudice'...

[Id. at 430]. The court, if necessary, would have granted the motion to allow the amendment of the caption to insert Beardsley as an "aggrieved candidate" as there was no prejudice to the Commissioner Atkins demonstrated to the court. Pursuant to Election Law §16-102, Beardsley was an "aggrieved candidate" and could also be an objector at the same time under §6-154 of the Election Law.

Notwithstanding that the court has found that petitioner is an "aggrieved candidate," the court will nonetheless consider the issue had it determined that petitioner could only file as an objector. Election Law §6-154 provides, in regard to filing objections and specifications as to designating petitions that: "...Each such officer or board is hereby empowered to make rules in reference to the filing and disposition of such petition, certificate, objections and specifications..." [N.Y.Elect.Law §6-154[2]]. In the case at bar, this court has found there was validly in effect, denominated by the first page of Court's Exhibit 4, Rules of the Oswego County Board of Elections, as to filing of objections and specifications to petitions. Commissioner Atkins' ruled on July 22, 2013, Court's Exhibit 6, that he could only count pages 1-37 denominated on the filed designating petitions of [*11]volume 1 of Ferris pursuant to paragraph 6[a] of the Rules of the Oswego County Board of Elections. At the hearing August 20, 2013, the court stated it would take judicial notice of the rules and regulations of the New York State Board of Elections in effect on the date of the petition filed herein. Counsel for petitioner asked Commissioner Atkins upon the witness stand if he was aware of the New York State Board of Elections' rule 6215.1[3]. Commissioner Atkins stated he was not aware of the rule [T. at pp 62-63]. That specific rule of the New York State Board of Elections is contained in 9 NYCRR 6215.1 and is entitled: "Rules for Filing Designating and Nominating Petitions": which provides in pertinent part:

...[e] Individual volumes of a petition shall be filed in the following manner...[3] With respect to all other petitions which contain 10 or more sheets, each volume of the petition shall have a cover sheet secured to the front of such volume...

[9 NYCRR 621.5.1].

The attorney for the petitioner maintains that volume cover sheets must be filed with the designating petitions if there be more than ten sheets. Petitioner's attorney maintains the volume cover sheets are integral parts of the filing documents. Therefore, counsel for the petitioner maintains that when petitioner had asked to review the filings of respondent Ferris more particularly described in his FOIL Request of July 12, 2013, the volume sheets should have been attached thereto as they were a part of the filed documents pursuant to the NYS Board of Elections' rule as aforesaid.

Commissioner Atkins stated in testimony on August 20, 2013 that it was the policy of the Board of Elections that if a person asked for copies of designating petitions they would receive the designating petitions only and that if they asked for a copy of the volume sheets, they would receive the volume sheets only. Commissioner Atkins substantially stated this was the custom of the Board. However, this "custom" is not in conformity, in this court's opinion, with the filing requirements of the NYS Board of Elections' rule. Each local Board of Elections is obligated to follow the designating petition rules of the New York State Board of Elections pursuant to §6-134 of the Election Law. Election Law §6-134[2] states:

...sheets of a designating petition shall be delivered to the Board of Elections in the manner prescribed by regulations that shall be promulgated by the State Board of Elections, provided, however that the sheets of any volume of the petition shall be numbered...

[NY Elec. Law § 6-134[2]]. By not providing the volume sheets to Mr. Beardsley upon his request to review them and only providing copies of the designating petitions, it is this court's opinion that the Board of Elections did not comply with the New York State Board of Elections' rules which they were mandated to follow.

Pursuant to petitioner's FOIL request dated July 12, 2013, he did not ask for copies of the designating petitions solely, nor did he ask for copies of the volume pages solely. What the petitioner asked for, pursuant to Court's exhibit 4 entitled "Request for Access to or Copying of Public Records", was "...B. I wish to examine the following documents:...1. Kurt Ferris County Treasurer Oswego Co. Democrat." There was no delineation that he wished copies of the documents. There was no delineation that he only wanted to look at the designating petitions and there was no delineation that he only wanted to look at the volume pages. It is this court's finding that he wanted to look at and/or receive copies of all the filings inclusive of the volume pages of Mr. Ferris. The Board of Elections did not comply with its ministerial duty to provide upon the request by petitioner, the complete documents of 130 pages of petitions as well as the five volume sheets [*12]separately paginating those petitions. The testimony, supra, referred to demonstrates and is unimpeached, that he was not given the volume pages pursuant to his demand for the filing documents of Kurt Ferris.

In the case of Maguire v. Bennett, 152 Misc 2d 265 [Sup Ct, Putnam County 1991], the court said in regard to petitioner/objectors [objector inferred because of references to petitioner timely filing objections and specifications] ability to raise issues before the supreme court that had not been in his objections and specifications to invalidate signatures , there was insufficient information given to him to raise those objections. More particularly, the court stated:

...Furthermore, a recent Supreme Court case held that a litigant should not be excluded from raising legal arguments as to a petition where the litigant was not given sufficient information to raise the arguments previously...[citations omitted]..The court harmonizes these rulings and holds that in an invalidation proceeding, the petitioner is permitted judicial review of those objections which on the information available to the petitioner at the time of making the objections, the petitioner could not have raised when filing his objection pursuant to Election Law §6-154...

[Id. at 270]. Also, in the case of Matter of Juntikka v. Cuevas, 1996 W.L. 345678736, the court said in regard to the objections filed against an initiative petition at the New York City Board of Elections, that:

...Due process review of an administrative action includes determining whether the state agency has provided adequate avenues of redress to review and remedy its actions [citations omitted]. Although the Election Board's determination of the validity or invalidity of a petition's signatures is presumptively correct [Maguire v. Bennett, 152 Misc 2d 265 [Sup. Ct. 1991]], the failure of the Respondent Board to produce a clerk's report effectively deprives petitioner of an opportunity to challenge the Board's determination...

[Id.] It would appear to this court that same reasoning should be applied regarding the determination that petitioner herein has not complied with rule 6a of the Oswego County Board of Elections regarding denomination of objections and specifications by each volume filed. The court finds that the failure to give the volume sheets to petitioner attached to Ferris' designating petitions caused petitioner to be unaware of any separate volumes. Petitioner was given 130 pages with no denomination that they were delineated by separate volumes with five separate volume pages. The reasonable inference by petitioner is that there was only one volume. Petitioner therefore properly filed the objections and specifications referring only to volume one, and the court so finds.

During the testimony August 20, 2013, Commissioner Atkins testified that since petitioner had the copies of volume separations pursuant to Commissioner Bickford's obtaining same on July 19, 2013 on his behalf, he could have amended his specifications on or before July 22, 2013 to include the separate volume pages. The court, through letters to Commissioner Atkins' counsel, requested the case or statutory authority upon which this premise was based. More particularly, Election Law §6-154[2] states that the specifications of objections must be filed no later than six days after the general objections that were filed by an objector. The proof in this case, as well as the testimony indicated that petitioner filed his objections on July 12, 2013. He thereafter filed his specific objections with the Board of Elections on July 15, 2013 — within the six day period mandated by §6-154 of the Election Law. When petitioner received the volume pages on July 19, 2013, it was already past the six day period he had to originally file and/or amend his specifications [*13][July 12 - July 18]. Commissioner Atkins testified that the "Board" agreed to wait to July 22, 2013 to allow any amendments of specifications by anyone who may have filed objections to petitions.

The court has received no case law or statutory authority suggesting that amendments to specifications of objections may be filed past the six day time limit contained in Election Law §6-154[2]. The court finds that that particular premise is untenable. In Bush v. Salerno, 51 NY2d 95 [1980], the New York StateCourt of Appeals, in determining an issue of timeliness of filing specifications stated:

...There can be no question that the failure to file specifications within six days after the filing of general objections is jurisdictionally fatal. Subdivision 2 of section 6-154 of the Election Law, both before and after the amendments effective December 1, 1978, expressly provided: When such an objections is filed, specifications of the grounds of the objections shall be filed...within six days thereafter...and if specifications are not timely filed, the objections shall be null and void.'...

[Id. at 95]. Furthermore the court held: "Determination of when the six-day period begins to run thus turns on when the general objection is filed." [Id.]. In the case of Matter of Breitenstein v. Turco, 254 AD2d 566 [3rd Dept. 1998], the petitioner filed general objections on August 20, 1998. The petitioner was required to file specifications of objections within six days of filing the general objections — which was no later than August 26, 1998. The petitioner/objector filed the specifications within the statutory time limit pursuant §6-154 of the Election Law. However the petitioner desired to add further specifications or amend the timely filed original specifications. The lower court granted an order giving the objector until 9:00 am on August 28, 1998 to file further specifications of objections. Pursuant to the additionally filed specification of objections, the Board of Elections invalidated a sufficient number of signatures on the opposing candidates nominating petitions to render the petitions invalid.

The candidate whose petitions were ruled invalid by the Board of Elections based upon the additional specifications filed pursuant to the Order to Show Cause, brought an action under §16-102 of Election Law to validate his nominating petitions. The lower court sustained the determination of the Board of Elections and the candidate appealed. The Appellate Division, in reversing the lower court's finding, stated:

...Insofar as is relevant to this appeal, petitioner was limited to the relief available under Election Law §16-102, which governs challenges to, inter alia, independent nominating petitions. As Election Law §16-102 does not permit a party to move by order to show cause for an extension of time to file specifications of objections, petitioner was without authority to seek the requested relief and, therefore, Supreme Courts' judgment granting such relief was a nullity...

[Id. at 567]. The court went on to say:

...Moreover, even assuming that there were statutory grounds permitting petitioner to seek an extension of time to file specifications, we would conclude the Supreme Court was without authority to grant the requested relief. Election Law §16-154[2] provides, in relevant part, that where, as here, general objections are filed, specifications of the grounds of the objections shall be filed within six days thereafter with the same officer or board and if specifications are not timely filed, the objection shall be null and void' [emphasis supplied]. The statute, in our view, could not be more clear, and a review of the case law interpreting that provision plainly reveals that the failure to file specifications within the prescribed time period is jurisdictionally fatal...Accordingly, we would conclude that Supreme Court simply was without authority to extend the six-day filing window... [*14]

[Id.]. The interpretation of Commissioner Atkins relative to the ability to extend the statutory time limit under §6-154[2] of the Election Law is without basis in law. An extension of the time cannot be granted by a court, let alone a Board of Elections. The court therefore finds that when petitioner received the volume covers sheets on July 19, 2013, he would have no ability to file any amendments to specifications outlining the volume paginations as required by Rule 6[a] of Oswego County Board of Elections as the six day time frame to file specification has passed ^[FN1].

The court now renders its decision regarding the specifications of the objections filed by the petitioner as to the signatures filed on the designating petitions by Kurt Ferris. In this regard, it was established at the hearing on August 20, 2013 that respondent Ferris was allowed to amend volume 3 of his designating petitions by inserting another volume sheet for volume 3 wherein it stated "...54-60 delegate 130th Fifth Judicial...". Commissioner Atkins testified at the hearing that in regard to that amendment of volume 3, it indicated to Commissioner Atkins that the signatures on pages 54-60 should not be counted on behalf of respondent Ferris. This would eliminate 70 signatures as there were 10 signatures on each of the respective pages. It will be noted that 999 signatures were filed on the 130 pages of designating petitions. By deleting the 70 indicated on pages 54-60, it would leave 929 signatures to be reviewed. Commissioner Atkins ruling on the specifications, Court's Exhibit 6, indicates that the total signatures submitted were 920. The discrepancy appears to this court in that while respondent Ferris on the amendment of volume 3 only indicated the deletion of pages 54-60, that page 64 in volume 3 likewise was a petition filed for delegates of the Fifth Judicial District convention. While not specifically omitted by respondent Ferris in referencing his volume 3 amendment, it appears that Commissioner Atkins either took it in that manner, or did not count those nine signatures on page 64, thus arriving at the figure of 920 signatures which he determined to count as to any invalid signatures.

Commissioner Bickford considered all 999 signatures filed on the designating petitions 1-130 because petitioner had not seen the amendment to volume 3 when petitioner filed the specifications of objections on July 15, 2013 wherein petitions 54-60 had been deleted by respondent Ferris on July 16, 2013 [T. at p. 40]. Commissioner Bickford ruled out of 999 signatures, 210 were invalid leaving remaining valid of 789. She testified her actual ruling, Court's Exhibit 5, was numerically incorrect [T. at pp. 46-47]. Since it is obvious that the judicial delegate petition at page 64 cannot be counted, the court will commence its review of the signatures based on 920 filed by excluding petitions 54-60 and 64 consisting of a total of 79 signatures.

The court is mandated pursuant to Election Law §16-100 to "...summarily determine any question of law or fact arising as to any subject set forth in this article, which shall be construed liberally."

The court in rendering its decision upon the specifications is guided by the mandates of Election Law §6-130 entitled "Designating Petitions; signer information" which states "...The sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city...and the date when the signature is affixed." Election Law §6-132 entitled "Designating Petition; form" states "1. Each sheet of a designating petition shall be signed in ink and shall contain the following information and shall be in substantially the following form:" The name of the political party to which the person belongs must be in the beginning of the designating petition. Furthermore, insofar as it applies to this case, the date the signatory signed the document; the name of the signatory; and the residence inclusive of town or city of the signatory. Election Law §6-132[2] provides:

...There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition [emphasis added], and who is also a resident of the political subdivision in which the office or position is to be voted for...

[N.Y.Elec.Law § 6-132[2][McKinney, 2007]].

Among the statement of witness of the subscribing witnesses to the petition, the witness' name must be inserted; he/she must state he/she is in the party which is the same party the signatories are in; and his/her current address. The subscribing witness must also fill in the number of signatures on the sheet as well as the date he/she signed the petition and sign his name thereupon. The witness must also include the following pursuant to the form mandated by §6-132 of the Election Law "...Witness identification information: The following information must be complete prior to filing with the board of elections in order for this petition sheet to be valid. Town or City____________ County ____________."

Election Law §6-134 entitled "Designating petition; rules" subdivision 5 states:

...The use of title, initials or customary abbreviations of given names by the signers of, or witnesses to, designating petitions or the use of customary abbreviations of addresses of such signers or witnesses, shall not invalidate such signatures or witness statement provided that the identity of the signer or witness as a registered voter can be established by reference to the signature on the petition and that of a person whose name appears in the registration poll ledgers.

[N.Y.Elec.Law §6-134[5][McKinney, 2007]].

Furthermore, subdivision 8 states:

...Notwithstanding any other provision of this chapter, the failure to list a committee to fill vacancies or the failure to list at least three eligible voters as a committee to fill vacancies shall not invalidate the petition unless a vacancy occurs which, under law, may be filled only by such a committee.

[N.Y.Elec.Law § 6-134[8][McKinney, 2007]].

Subdivision 10 of Election Law §6-134 states: "The provisions of this section shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud." [N.Y.Elec. Law §6-134 [8][McKinney, 2007]]. Subdivision 12 states:

...A signature on a petition sheet shall not be deemed invalid solely because the address provided is the post office address of the signer provided that proof that such address is the accepted address of such signer is provided to the board of elections no later than three days following the receipt of specific objections to such signature...NY Elec. Law §6-134[12][McKinney, 2007]].

With the following statutes in mind, the court now makes its specific determination as to the signatures on respondent Ferris' petitions 1-130. References shall initially be made to the reasons for the court's determination in each separate category of invalidity. The court will thereafter only refer to its previous determination for invalidating the signature.

Number of

Sheet/Line[s]ReasonInvalid Signatures

10/4Signatory address incorrect1

Election Law §132[2]

19/1Signatory is not a registered democrat1

21/1,2Signatory is not a registered democrat2

23/4Signatory is not a registered democrat1

24/10Signatory is not a registered democrat1

26/8Signatory is not a registered democrat1

The petitioner listed objections to sheets 5, 6, 7, 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 30, 31, 33, 36, 50, 61, 63, 72, 73, 122, 123, 124, 125, 126, and 127, which would include all the signatures of each respective sheet because the subscribing witness did not write in the town or the city. The court does not agree. The omission of any of the "witness identification information" requested below the signature of the subscribing witness [town or city], is not fatal and does not invalidate the sheet [see Matter of Hurst v. Bd of Elections of Broome County, 265 AD2d 590 [3rd Dept. 1999]; Matter of Barrett v. Broadsky, 196 AD2d 603 [2nd Dept. 1993], lv. to app.denied, 82 NY2d 653; Matter of Goodstein v. Ross, 196 AD2d 615 [2nd Dept. 1993], lv.to app.denied, 82 NY2d 654]. In the Matter of Powers v. Kozlowski, 54 AD3d 540 [4th Dept. 2008], lv to app.denied 11 NY3d 701, the Appellate Division, Fourth Department held that under the circumstances of that case where each subscribing witness listed his or her full and complete address on each of the challenged sheets, the fact that the incorrect town was identified under the "witness identification information" section on the challenged sheet, did not warrant invalidation of the signatures. This court likewise finds that there is sufficient information under the subscribing witness address in each of the aforesaid sheets to identify the subscribing witnesses for election law purposes.

Number of

Sheet/Line[s]ReasonInvalid Signatures

41/1-10Subscribing witness not dated10

The failure of the subscribing witness to fill in the date in subscribing witness statement invalidates the entire sheet [see, Daverso v. Romeo, 89 AD2d 1054 [4th Dept. 1982]].

Number of

Sheet/Line[s]ReasonInvalid Signatures

42/1Signatory is not a registered democrat1

46/9Signatory signed 2x's [sh 48, ln 8]1

When a person has signed the same candidates petition more than once, only the earlier dated signature shall be valid and the later dated signature shall be invalidated [see, Matter of McShane v. Coveney, 37 NY2d 789 [1975]].

Number of

Sheet/Line[s]ReasonInvalid Signatures

47/1-10Petition fails to state democratic affiliation on top10 [*17]

Designating petitions 54-60 and 64 have previously been deleted from this count.

Number of

Sheet/Line[s]ReasonInvalid Signatures

68/1-8Subscribing witness' failure to list address8

74/6Signatory is not a registered democrat1

76/6Signatory post-dated Subscribing witness' date1

Where a signature is dated after the date of the witness statement, that signature must be invalidated [see, Matter of McNulty v. McNab, 96 AD2d 921 [2nd Dept. 1983]].

Number of

Sheet/Line[s]ReasonInvalid Signatures

84/4,7Signatory is not a registered democrat2

87/5Signatory is not a registered democrat1

87/7Signatory signed 2x's [sh 50, ln 2]1

89/4Signatory is not a registered democrat1

Petitioner filed the specification that the subscribing witness date is incorrect because the witness wrote 7/10 with no year inserted on the petition. The sheet is not rendered invalid by virtue of the failure to include the year, provided the month and date have been inserted [see, Matter of Struble v. Chiccavoli, 71 AD2d 1047[4th Dept. 1979], affd. 48 NY2d 613]. Therefore the court does not find sheet 89 and all the signatures [except at line 4] thereupon invalid.

Number of

Sheet/Line[s]ReasonInvalid Signatures

96/5,6Signatory address incorrect2

101/1-7Petition fails to state democratic affiliation on top7

Election Law §132[2]

102/1Signatory address incorrect1

103/6Signatory is not a registered democrat1

107/5Signatory signed 2x's [sh 15, ln 7]1

111/1-10Subscribing witness' failure to date10

112/1-2Subscribing witness' failure to list address2

113/5Signatory signed 2x's [sh 105, ln 3]1

115/1-6Petition fails to state democratic affiliation on top6

116/1,4,5Signatory is not a registered democrat3

118/6Signatory name different than registered name1

123/1-10Subscribing witness' failure to list address10

Regarding all remaining specifications of objections petitioner filed, the court has reviewed same and finds the specifications without merit.

The court therefore has found out of 920 signatures filed, that 89 are invalid leaving 831 valid signatures. The respondent Ferris needed 899 valid signatures and therefore the court finds the designating petitions insufficient for him to be a candidate in the November 5, 2013 election for Oswego County Treasurer.

Based on the papers aforesaid, and upon the evidence received, and for the reasons above stated, it is hereby

ORDERED, that the verified petition of petitioner Fred Beardsley to invalidate the [*18]designating petitions designating Kurt Ferris as a candidate for the public office of Treasurer, County of Oswego, State of New York, at the general election to be held on November 5, 2013 is granted; and it is further

ORDERED, that the designating petitions filed with the Oswego County Board of Elections designating Kurt Ferris as candidate for the public office of Treasurer, County of Oswego, State of New York, at the general election to be held on November 5, 2013 is declared to lack the required number of valid signatures and therefore are invalid; and it is further

ORDERED, that the Oswego County Board of Elections is enjoined and restrained from printing and placing the name of Kurt Ferris as a candidate for the public office of Treasurer, County of Oswego, State of New York, on the official ballots to be used at the general election to be held on November 5, 2013,

The foregoing constitutes the Decision and Order of this court.

ENTER,

______________________________________

Hon. James W. McCarthy

Supreme Court Justice

Dated: September 3, 2013

at Oswego, New York.