Matter of Fehrman v New York State Bd. of Elections, 10 NY3d 759 (2008)

2008 NY Slip Op 01611 [10 NY3d 759]
February 25, 2008
Court of Appeals

[*1]

In the Matter of Robert Fehrman et al., Petitioners,
v
New York State Board of Elections et al., Respondents. (Proceeding No. 1.)
In the Matter of Darrel Aubertine, Respondent, v Oswego County Independence Party Interim County Organization et al., Respondents, and New York State Committee of the Independence Party of New York et al., Appellants. (Proceeding No. 2.)

Argued February 25, 2008; decided February 25, 2008

Matter of Fehrman v New York State Bd. of Elections, 48 AD3d 954, reversed.

Matter of Aubertine v Oswego County Independence Interim County Org., 48 AD3d 954, reversed.

{**10 NY3d at 760} OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, the proceeding to invalidate the nomination of Will Barclay dismissed and the injunction preventing the State Board and County Boards of Elections from placing Barclay’s name on the ballot vacated.

On the facts of this case, Darrel Aubertine, a nonmember of the Independence Party, lacked standing to challenge that party’s compliance with its own rules (see Matter of Nicolai v Kelleher, 45 AD3d 960 [3d Dept 2007]; Matter of Stempel v Albany County Bd. of Elections, 97 AD2d 647 [3d Dept 1983], affd 60 NY2d 801 [1983]). Although, at a point before the first of these proceedings began, Aubertine had a bona fide claim to be the Independence Party’s candidate for State Senator, events that preceded the start of the litigation eliminated any basis for such a claim. While Aubertine asserted in pleadings below that he was the Independence Party candidate, he promptly abandoned that assertion; he argued below and argues here that the Independence Party has not validly nominated any candidate. Under these circumstances, Aubertine is not an “aggrieved candidate” within the meaning of Election Law § 16-102.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order, insofar as appealed from, reversed, etc.