Seltzer v. Orlando

457 Plaintiff has failed to show that any of the four allegedly defamatory statements contained in a campaign flyer, which was distributed in the waning days of the Village of Bellport election, were published with actual malice, and therefore, the first two causes of action are barred by qualified privilege (Suozzi v Parente, 202 AD2d 94, 101, lv dismissed and denied 85 NY2d 923; ATN Marts v Ireland, 195 AD2d 959). The IAS Court also properly dismissed the third cause of action which alleged that defendants, by publication of the complained of statements, violated Election Law § 3-106. Plaintiff failed to submit a proper complaint to the State Board of Elections (9 NYCRR 6201.3); thus her cause of action must be dismissed as she failed to exhaust her administrative remedies. The fourth and fifth causes of action seeking to impose fines and sanctions against defendants pursuant to Election Law § 14-126 were properly dismissed since there is no private right of action under the statute. Plaintiff’s sixth and final cause of action was also properly dismissed. A cause of action seeking to oust an elected official from office on the ground that the officeholder was elected by unlawful means may be brought only by the Attorney-General (People v McClellan, 118 App Div 177, affd 188 NY 618), in a quo warranto proceeding (Matter of Conroy v Levine, 62 NY2d 934; Executive Law § 63-b [1]). Concur — Milonas, J. P., Rosenberger, Ellerin, Rubin and Williams, JJ.