STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

In the Matter of the Application of

ADAM L. ODETT and MARY.DASNO, as citizen objectors
and
KENNETH BLANKENBUSH, as a candidate aggrieved,

Petitioners,

-against

lames A. Walsh, Douglas A. Keliner, Evelyn 3. Aquila, and

Gregory P. Peterson, COMMISSIONERS CONSTITU11NG
THE NEW YORK STATE BOARD OP ELECTIONS,
and
BRIAN S. MCGRATH, Candidate,

Respondents.

For an Order Pursuant to Section 16-100, 16-102 and 16-116 of

the Election Law, Declaring Invalid the Designating Petitions
Purporting to Designate the Respondent-Candidate in the
Democratic Party Primary Election to be held S,tember 14,
2010, and to Restrain the said Board of Elections from Placing
the Name of said Candidate Upon the Official Ballots of Said
Primary Election.

All Purpose Term

Hon. Henry F. Zwack, Acting Supreme Court Justice Presiding
Ri!: 01-10-101114 IndexNo. 4979-10

Appearances: James B. Walsh, Esq.

Attorney For Petitioners Odett, Dasno, Blankenbush
514 State Street
Schenectady, New York 12305
 Kimberly A. Calvin, Esq.
Attorney for Respondent New York State Board of Elections
40 Steuben Street
Albany, New York 12207

Kathleen O’Keefe, Esq.

Attorneys For Respondent McGrath
65 Anthony Drive
Eariton, New York 1205 8

Marty I. Rosenbaum, Esq.

Attorneys for Respondent McGrath (of counsel)
1971 WesternAvenue,#105
Albany, New York 12203

DECISION/ORDER

Zwack, 3,:

In this Election Law proceeding, respondent McGrath has moved to dismiss and

petitioners cross-moved to file an amended petition. Oral argument and documentary

evidence was received on August 6, 2010.

First, regarding McGrath’s motion to dismiss, the Court denies the motion. The

original petition is not subject to dismissal due to typographical error. The petition lists wrong

home address for candidate, however this is a minor, de minimis typographical error. This error

was not ajurisdietional defect, respondents were not misled by the error and no substantial right

ofrespondents was prejudiced. Therefore the Court denies the motion to dismiss (CPLR 2001,

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3026; Tag!taft itt v Welter, 1 NY3d 605 [2004]; Great Eastern Mall Inc. v C’ondon, 36 NY2d

544 [19751).
The Court finds that the cross-motion is moot therefore and does not reach petitioners’

cross-motion to amend in light of the above determination.

Regarding the issue of whether the designation of the public office was sufficient, the

Court finds that it was insufficient. It failed to state “Member” ofAssembly and provided only

a geographic designation. As listed it is insufficient because judicial convention delegates and

state party committeemen also run in this assembly district. The name of the public office is

not clearly set forth and as listed, there is a reasonable probability of confhsion in light of the

multiple titles ofpublic office elected fromthe assembly district (Hayes vNew YorkState Board

ofElections, 32 AD3d 660 [3d Dep’t 2006]; Bliss v Nobles 297 A02d 457 [3d Dep’t 2002];

Dunlea v New York State Board of Elections, 275 A.D.2d 589 [3 Dep’t 2000]). The

designating petition at issue is therefore invalidated.

Accordingly, it is

ORDERED that the motion to dismiss is denied, the cross-motion is not reached as

moot; and it is further

ORDERED that the petition is granted and the designating petition at issue is

invalidated.

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 This constitutes the Decision and Order of the Court. This Decision and Order is

returned to the attorneys for the petitioners. All other papers are delivered to the Supreme

Court Clerk for transmission to the County Clerk. The signing ofthis Decision and Order

shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the

applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: August 2010

Troy,NewYork

Henry F. Zwack
Acting Supreme Court Justice

Papers Considered:

1. Order to Show Cause dated July 27, 2010; Verified Petition dated July 27,
2010, Amended Verified Petition dated July 28, 2010;
2. Verified Answer dated July 30, 2010;
3, Verified Answer dated July 30, 2010; Notice dated July 30, 2010;
Memorandum of Law dated July 30,2010; Notice of Motion dated August 1,
2010; Affirmation in Support of Motion to Dismiss of Marty I. Rosenbaum,
Esq. dated August 1, 2010; Memorandum of Law dated August 1, 2010;
together with Attachments;
4. Memorandum of Law dated August 2, 2010; together with Attachments;
5. Notice of Cross-Motion dated August 4 2010; Affirmation of Michael It.
Cuevas, Esq. dated August 4, 2010; together with Attachments; Memorandum
o. Law dated August 4,2010;
6. Respondent’s Exhibits “A” though “E”.