Mazza v. Board of Elections , 601 N.Y.S.2d 508 ( 1993 )

Per Curiam.

Appeal from an order of the Supreme Court (Keegan, J.), entered August 16, 1993 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the designating petition naming respondent Jerry Signer as the Democratic Party candidate for the office of Albany City Alderman, First Ward in the September 14, 1993 primary election.

We disagree with the conclusion reached by Supreme Court. Under the facts of this case, it is our view that petitioner’s reference in her pleading to the objections and specifications of objections filed with respondent Board of Elections, coupled with the general statements in the petition of the types of improprieties on which petitioner intended to base her challenge, sufficiently apprised respondent Jerry Signer (hereinafter respondent) of the allegations being made against his designating petition (see, Matter of Cohen v Moss, 97 AD2d 644, lv denied 60 NY2d 558; Matter of Belak v Rossi, 96 AD2d 1011, 1011-1012, Iv denied 60 NY2d 552). Furthermore, an affidavit containing facts sufficient to support a particularly egregious finding, that respondent himself witnessed a fraudulent signature (see, Matter of Bynoe v Board of Elections, 164 AD2d 929, 929-930, lv denied 76 NY2d 705), is also in the record, having been presented to the Board of Elections at the hearing. It can hardly be said then that respondent was unaware of this basis for an allegation of fraud—an issue which the Board of Elections acknowledged is beyond its jurisdiction.

Finally, should petitioner attempt to prove defects not listed in the specifications of objections, or to argue points not raised before the Board of Elections, Supreme Court can, and should, preclude such proof to protect respondent’s due process rights (see, Matter of Belak v Rossi, supra, at 1011-1012). Thus, in view of the seriousness of petitioner’s claims, and because we are unable to discern any prejudice whatsoever to respondent as a result of permitting the charges—at the very least to the extent those allegations of which respondent has been put on notice by the proceedings below—to be determined on the merits, we find dismissal of the entire proceeding to have been improper.

Accordingly, we reverse Supreme Court’s order dismissing the proceeding for failure to state a cause of action and remit the matter for a determination on the merits.

Yesawich Jr., Mercure, Crew III and Casey, JJ., concur.