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WHELAN RULING BACKS MASIELLO ON DEMOCRATIC PRIMARY LINE

Mayor Masiello will retain the Democratic Party line in the fall mayoral primary -- at least for now -- as a result of a decision issued Tuesday in State Supreme Court.

Citing technical legal requirements, Justice Robert E. Whelan dismissed an effort by Common Council President James W. Pitts to strip Masiello of the party's support in the primary.

Pitts claims Masiello forfeited the Democratic nod under party rules by accepting the endorsement of the Republican Party. Even though he is not a formal party to the lawsuit, Pitts, who is challenging Masiello for the city's top elected office, has stated publicly that he is behind the legal effort.

Whelan dismissed the challenge during a phone conference with the attorneys but did not deal directly with Pitts' central claim. Instead, the judge ruled that the lawsuit was not properly filed in the County Clerk's office.

James Shaw, who brought the lawsuit on behalf of a former vice chairman of the Erie County Democratic Party, said he already refiled the lawsuit, and that it is slated to be heard again by Whelan on Aug. 27. That court date may be moved up by mutual consent. The primary is Sept. 9.

"The next time out we're hoping to get to the merits of the case," Shaw said. "We think we've got a strong case on the merits."

The Democratic line is considered crucial in the mayoral race because Democrats have a huge enrollment edge in the city. Masiello is also being challenged by former Mayor Jimmy Griffin.

During a 35-minute hearing last week, Terrence M. Connors, representing Masiello, argued that the suit was not properly filed, that court papers weren't correctly served and that legal deadlines were missed.

"The judge found that the action wasn't even commenced properly," he said Tuesday.

Anticipating the possibility of an adverse decision, Shaw said he refiled the lawsuit last Thursday.

"I wanted to cover my bases and get to the new proceedings just as quickly as possible," he said.

Pitts said he was encouraged that Whelan dismissed the case "without prejudice," meaning that it could be refiled.

"We think that once the case is heard, we will prevail," he said. "This is just a bump in the road."

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