WPCNR WHITE PLAINS LAW JOURNAL. October 22, 2009 UPDATED 5 P.M. E.D.T. IN ITALICS.UPDATED 12:15 A.M. E.DT. OCTOBER 23: The Appellate Court of the State of New York, 2nd Department, has ruled in the appeal of Judge Francis Nicolai's decision September 10, which allowed Glen Hockley to remain on the Mayoral ballot without filing a Certificate of Acceptance with the Board of Elections of Westchester County. The decision all but assures Adam Bradley, the present Assemblyman, running for Mayor on five lines will be the next Mayor of White Plains.

Mayor Joseph Delfino told WPCNR Thursday evening he would provide a "transition team" for de facto Mayor-Elect Bradley (by virtue of Hockley being removed by order of the Appellate Court), "if Mr. Bradley asks me for one, and after he wins."

Asked what his plans were after January 1 when he will leave office, Mayor Delfino said he would clean his room (in his apartment in White Plains), saying how he had taken very little vacation in 12 years as Mayor. Asked if he had further political aspirations, and would he run for Mr. Bradley's Assembly seat in the 89th District, considering the Mayor's considerable campaign funds, Delfino said people had spoken to him about running for office again, and  though it was too early to say, "I would not rule it out." 

Adam Bradley's Assembly seat most likely will be decided in a Special Election to be called by Governor David Paterson after Mr. Bradley resigns in January when Bradley presumably, barring a write-in campaign by Mr. Hockley, will resign his Assembly seat.

One observer told WPCNR that Peter Harckham, the Westchester County Legislator from District 2, a resident of Katonah-Lewisboro, in Assembly District 89, is at this time likely to be the Democratic choice to run for Bradley's seat. WPCNR has not contacted Bill Ryan of District 5, the Chair of the County Board of Legislators and a White Plains resident, as to whether he was intrigued by a run at the New York State Assembly.

The Appellate Court ruled unanimously to remove Mr. Hockley's name from the Mayoral ballot in White Plains for failure to file the Certificate, ruling "the judiciary is foreclosed from  fashioning any exception to this requirement, however reasonable they may appear," citing five previous cases decided in similar circumstances.

Glen Hockley told WPCNR he learned of the decision approximately 3 P.M. and is discussing the possibility of appealing the decision with his legal advisors. He told WPCNR, he had not made an legal moves yet to stay the order. He called the decision by the Appellate court,"an injustice coming from four justices," that the justices put "process over fairness."  He said if he decided not to appeal, he would continue his campaign as a "write-in" candidate.

This effectively elects Adam Bradley Mayor of White Plains by default, since Mr. Bradley remains the only Mayoral contender on the ballot, pending any possibility of appeal by Mr. Hockley.

Here is the Second Department decision in its entirety:

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENTREINALDO E. RIVERA, J.P.

ANITA R. FLORIO

HOWARD MILLER

L. PRISCILLA HALL, JJ.

2009-08864

(Index No. 19488/09)

[*1]In the Matter of Glen Hockley, respondent,

v

Westchester County Board of Elections, et al., appellants.DECISION & ORDER

In a proceeding, in effect, pursuant to Election Law § 16-102, inter alia, to validate an

independent nominating petition nominating Glen Hockley as the candidate of an independent body

known as "People Over Politics" in an election to be held on November 3, 2009, for the public

office of Mayor of the City of White Plains, the appeal is from a final order of the Supreme Court,

Westchester County (Nicolai, J.), dated September 10, 2009, which, after a hearing, in effect,

granted the petition, inter alia, to validate, and directed the Westchester County Board of Elections

Matter of Hockley v Westchester County Bd. of Elections (2009 NY Slip Op 07634)

http://www.nycourts.gov/reporter/3dseries/2009/2009_07634.htm[10/22/2009 3:07:00 PM]

to place the petitioner's name on the appropriate ballot.

ORDERED that the final order is reversed, on the law, without costs or disbursements, the

petition, inter alia, to validate is denied, the proceeding is dismissed, and the Westchester County

Board of Elections is directed to remove the petitioner's name from the appropriate ballot.

A candidate "designated or nominated for a public office other than a judicial office . . . by an

independent body . . . shall, in a certificate signed and acknowledged by him, and filed as provided

in [Election Law article 6], accept the designation or nomination as a candidate of each such . . .

independent body . . . otherwise such designation or nomination shall be null and void" (Election

Law § 6-146 [1]).

Although the record indicates that the petitioner candidate personally solicited and witnessed

many of the signatures contained in the nominating petition and personally filed that petition with

the Westchester County Board of Elections, it is undisputed that the petitioner failed to file a

certificate of acceptance. This failure to file the required certificate constituted a "fatal defect"

(Election Law § 1-106[2]), and "the judiciary is foreclosed from fashioning any exceptions to this

requirement, however reasonable they might appear" (Matter of Irvin v Sachs, 129 AD2d 827, 828;

see Matter of Rhodes v Salerno, 57 NY2d 885, 887; Matter of Carr v New York State Bd. of

Elections, 40 NY2d 556, 558-559; Matter of Carnahan v Ward, 44 AD3d 1249, 1250; Matter of

Pasquerella v Sunderland, 207 AD2d 515, 515; Matter of Sheehan v Aylward, 84 AD2d 602, 603).

Accordingly, the petition, inter alia, to validate should have been denied and the proceeding should

have been dismissed.

RIVERA, J.P., FLORIO, MILLER and HALL, JJ., concur. [*2]