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THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s validating petition petition should not have been dismissed on the ground that the petition was not verified because: (1) the respondents waived the issue by not objecting with due diligence; and (2) although the exact words re: verification in CPLR 3021 were not used, the language used in the petition had the same effect as verification:

“Section 16-116 of the Election Law requires that a special proceeding brought under article 16 of the Election Law shall be heard upon a verified petition. The requirement is jurisdictional in nature” … . However, the objection to the alleged lack of verification of the validating petition was waived by the objectors’ failure to raise that objection with due diligence as required by CPLR 3022 … .

Moreover, the mere fact that a petition does not use the exact words set forth in CPLR 3021 does not mean that the petition is not verified, so long as the language used has the same effect as a verification … . Here, the language used in the validating petition had the same effect as a verification and, therefore, the validating petition was “verified” within the meaning of Election Law § 16-116. Matter of Francois v Rockland County Bd. of Elections, 2022 NY Slip Op 03190, Second Dept 5-12-22

Practice Point: Under the Election Law a validating petition must be verified and the absence of verification is a jurisdictional defect. The failure raise the issue with due diligence, however, waives the objection pursuant to CPLR 3021. In addition, to constitute a valid verification, the exact language in CPLR 3021 need not be used. Here he language in the validating petition. although not exactly as prescribed in CPLR 3021, was deemed sufficient to verify it.

 

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