Matter of D'Abramo v Schirillo2013 NY Slip Op 31974(U)

August 10, 2013Supreme Court, Suffolk County

Docket Number: 13-19656Judge: John J. Leo

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BON. JOll:-ll LEO

SCPRD,,[[ COURT OF TI-lE STATE OF 'FW YORKcoux: Y UI· SUFFOU(-------------------------------------------------------------------------X

In the \:i:ll{ r of the. ppl icarion ofIRE fE I)' AI3RAMO. MAt'-10EL CORDEIRO andCllARI.ES V;\ ·DEWAl'ER.

Petition rs-Objector,

-against-

THOMAS SCHIRILLO. CHRIS i\l\£N KET.,LbY, VIViANvtLORlf\-[:I.'1 fER, l.ORI BALDASSARt:. JOI ATI IAN A.COlIF1\. MICTIAEL !\HU.F.R. WA YllE E.fELLR/\'I'H und CONSTANCE KEy.[PERT,

ReSI udent-Candidatcs.-and-

.TTTOLK COUt\'TY BOARD OF ELl:.CTIONS. A, 1ITAS. K TL Commissioner of the Suffolk County Board ofElections. and WAYl Fl. ROGERS, Commissioner of the, 1I (folk County Board of Elections. togctl cr constituting tl cSuffolk County Board of Elections,

Respondents,-------------------------------------------------------------------------xAttorney Ior the Petitioners:Kc ineth J. Lauri .. sq.503 Main. 'lre tPort Jefferson. NY 11777

Attorn 'Y for Respondents:Lawrence Silverman. [sq.350 Veterans Memorial Hw J

Commack, New Y rk. 11725

Attorney lor Respondent:Commis: inner KatzAnthony La Pinta, csq15 .' rkay Drive, Sui e 200Hauppauge. 'C\N York 11788

Attorney for Respondent:Commissioner RogersGarrett Swenson, Jr. Esq.76 Bay RoadBrookhaven, NY I J 7 19

~ IDhCfSJO ANDORDER

I

IIndex o. 13-19656

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lhe Court in its dclibcra ions has considered the following papers and held a hearing upon thismerion for relict:

l. Order to Show Cause, Verified Petition, Affirmation, & Exhibits2. Order to Show Cause. Verified Petition, Affirmation, Suppl ucntal

A ffinuation 8.: :xhibirs3. Verified Answers , Vc 'ified Return

,Petitioner seeks an Order: (I) pursuant ro Sections 16-100. 16-102 and 10-1 I~ ofthe Election

L.:I\\. Decl'-lring Invalid the petitions the Respondent-Candidate ,1S candidates of The Workingl-amiliesParty lor the Public Office of Suflolk County Legislator lor Eighth District for the deneral ElectionOIl the Tenth Jay of Novcm er 2013: and (2) Restraining the Board of Elections fr6m printing andplacing the name ofsaid Respondent-Candidates, as such, upon the Official Ballots of such GeneralHection.

Respondcnr-Candidntcs seck an Order: (J) Dismissing [he above-capti ned Llection 1,(11\'

proceeding upon the grounds that both the Order to Shov Cause and Petition ill support hereofaredefective c 11 their Iacc us none ol'thc respondent candidates are candidates ofthe \-\ {Irking FamiliesParty for Suffolk County Legislator, Eighth Legislative District and as su.ch said Petition requestsrelief'tluu may not be granted. or alternatively. if !!f411 t d would be a nullity: and (2)1 Dismissing theabove-captioned proceeding us to Michael Miller.upon (he grounds that none otthc ctitiouers huvestanding to challenge the designating petition filed on his behalf for the nomination.of the WorkingFamili "S Party LO be voted 011 at the Primm) Election to be held on September 10,2013.

IRespondent Suffolk County Board of Elections Commissioner . files a Verified Rc urn.

Pursuant to IJcctioll Law ·16-102 a proceeding regarding the designation ola candidate lorpublic off c must b-::instituted in the Supreme Court b_ an aggrieved candidate or 11)'a person hasIilcd general and specific objections in accord with lilccrir n Law 6-1 54C:!). I

IIn the instant matter, the parties stipulated and agreed there was no basis for a line-by-line reviewill' the designating petition. The Petitioner also stipulated [11m there were 110 specitic objections asfiled by Petitioner D'Abramo and that none were attached to the invalidating petitio . Consequently,Pctitoner D'Abrarno. had no ..tanding. and it was stipulated he withdrew as a pctiti mer. Also as (I)

petitioner Charles Vandewater. there were no general or .pecific objections set l(lIth as part of theinvalidating petition and thus Petitioner's at omey stipulate to withd awing Vandewater as apetitioner.

The remaining Petitioner, Manuel Cordeiro. IiJed general and specifications of objectionsand is deemed to be all obi c'C[\){, who has standing. However the general and specification or

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objections f led by Cordeiro. made no reference to Respondents Miller, Fellrath or Kepp rt . thusPetitioner's attorney withdrew any objections as to the designating p' ti tion of each of thosecandidates. Neither the general nor the specifications of objections references any el ndida c, COVl:rsheet or designating petition regarding the Eighth Legislative District of uflolk County.

The Court heard argument [j·cm Petitioncr's , attorney regarding what he chJacterized wereflaws in the assigning of certain identification numbers to the cover sheet filed wirlt the challengeddesignating petition. The Parties placed on the record a sti ulation as to what cern in witncs cs tothe tiling of the disputed cover sheet, would have testified to if called. On consent of the parties. theCourt at '0 entered into evidence. the Designating and Nominatinc Petition Guidelines andRequirements olthe Board of'El ections OfSllff~lk County. The Parties also stiplilatc~ that the Board0(' Elections did not send any written cure letter to anyone regarding the co er hee s at question inthis proceeding.

The basis of the Petitioner's objection is that, prior to the filing of peri iOI~S, the W rkiugFamilies Party had requested the assignment of certain Suffolk County Ide ntificaiion Numbers to thecover sheets of their petitions. onetheless. at the time the petition in ques ion were tiled. thecover. heets did not contain those pre-assign d identification num ers but instead other numberswere assigned. Petitioners do n t question or allege to the contrary, that the covet h ets containproper re 'e 'ence: to the publ ic office. residence, volumes, contact person, a s a mer t that thdesi 'I1uling petition had the number or in excess of the Dumber of signa ures, or required petitionshcc numbers related to each candidate. It was also not alleged that the challenged d: rignatingetiiion with cover sheet was not timely filed.

Respondents' atton y intcrj oscd a motion to dismiss on the ground that he invalids ingpetition addresses onlv the office of"Suffolk Count I Leaislator for the Eizhth L gi~lative I is 'ict.

J -..... 0..;.;......, I

As such. Respond .nts' attorney notes that the relief reque: ted is for the Eighth Legislative DistrictI

only. The parties stipulated that only a portion of the Eighth Legislative District is!in the Town ofBrookhaven. The Court notes that a review of the designating petition reveals that all the officeschallenged by the invalidating petition and the underlying objections are offices t~ be voted uponwholly in the political subdivision of the TO\Vll of Brookhaven and ar either a T()\~'n public officeor a District Court Judge. Moreover. Petitioner Cordiero, rrifies 111 foregoing invalidating petitionwhich reiales only to the Eighth Legislative Dis rict. as O'lIC. I

I

The caption of the proceeding states the reliefrequested is directed 0 the Eighth LegislativeDistrict only. The body of the invalidating ctition does not request invalidation for 'any other officeother than the Eighth Legislative Distri t. Similarly, there is no reference in the body of theinvalidating petition to any other office sought to be invalidated. Paragraph 11 of the invalidatingpetition even states that til rc are 10 signatures required for the .ighth Legi .lative Dis rictd -signarion but does not give 3 a al lor any other public office. The invalidating petition doesinc rporate by releren e the obje lions of Cordiero and the work 'be .ts related thereto. Theinvalidating petition is specifically captioned and states it is directed to the Eighth LegislativeDistrict as does til . prayer for reli f. This Court determines that it is that office only. which is hesubject of the instant invalidating petition, Allowing the incorporation by reference of specifications

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of objections not related to the named office, would open the door to placing any s ecifications ofobjectior with any invalidating petition and would allow a petitione , at their whim. to claim anobjection is to an office other than that which is really being challenged. To this ourt that is notwhat pleadings may be posited for. Moreover. specifications f objections are tilt: conditionprecedent (0 a valid invalidatinu petition and must relate to that invalidating petition, not the otherway around. A valid invalidating petition must contain general and specifications of objections thatrelate to the claims in that invalidatii g petition. This is simply not the case her'. I

Thus, since there are no objections or specifications of obj ctions for any candida es for apublic office of the Eighth Legislative District, the invalidating petition is hereby dismisse I.

In order tu rellect a full record of the proceeding . (be Court proffers its Of inion on the is .ueof the Petition r cover sheet objections. Petitioners' argument as et forth in tile adoptedspecification of objection, is that the numbering assigned to the cover sheet affixed to the challenged

tition was not in compliance with the Suffolk County Board of Elections, Designating an i1 lominating Petition Guideline and Requirements. The ba: is of the Petitioner's objection here isthat, prior to the filing of the subject petitions, the Working Families Party had requ sted from theBoard of Electior s that certain Suffolk County Identification Numbers which would reflect a prefixof"St;··. be used to number the cover sheets used to file their petitions. At the time the challengedpetitions were tiled. the cover sh ets did 110t contain those numbers and instead \.\ re assigned anidentification number with prefix of "vr. There is no dispute or allegation to the contrary, that the

Icover sheet contains the proper and sufficient references to: the public office, residence, volumes,required petition sheet numbers, a stat ern nt that the designating petition had the number or in excessof the number of sigr H ures, related to each candidate. Nor is there any assertion that the designatingpetition with cover shec was not timely tiled. The dispute lies in the recitation of the course ofev nts that took place at the time of the filing submission of the designating petition with cov I'

sheet. On this issue, the parties placed on the record. a stipulation as to what certairi witnesses whowere present at the BO( rd of Elections counte . when the petition was filed, would hhve testified to,ifcalled.It was stipulated that one Board of Elections Republican representative present, would havetestified that upon the f ling of the subject petition and cover sheet. he informed thelf lers that therewere 110. uffolk County identification numbers as had previously be' n applied for by someone fromthe Working Families Partv, on the cover sheet. an I that such identification numbers were neededto be placed on rh filing. 'i'he D..:: rocratic representative would have testified that khe was presentat the Board of elections counter along with the Republican representative, whc the designatingpetitions were filed, but did not recall such a conversation, and that she also did n~t believe it wasfor her to decide whether the Suffolk County Identification mil ibcrs were needed. l'he Court then,on consent or all parties, entered into evidence the Designating and. ominating Petition Guideline& Requirements of the Board of Elections of Suffolk County. The Parties also stipulated that theBoard of Elections did not send any cure 1 tter to anyone regarding th cover sheet in question ill

this proceeding.

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The Court notes that the designating petition with cover sheet was duly filed and given all

Identification Numb r of \11/ I'" -14. Pursuant to the Board of Elections rules reuardirta Identificationnumbe ·S. when an application i. filed pursuant to Rules B( 1) and B(J), those rules mandate that suchidenri fication Hun crs HI ear on the petition volume cover sheet and on the li r o.f any candidate.[10\\c\"(:I". according Rule 13(5) if a petition volume is filed without a pre-assigned number, theBoard will affix. a number. Ioreovcr. an identification number of W 13-14 was assigned to this, ~design lin') petition and cover sheet becau e it was filed without a pre-assigned number, The Courtnotes that there is 110 proof in the record that the I ersons tiling the designating P tiiion and thosewho previously req uestcd the pre-as ig icd Su ffol k numbers were the same: persons 011I presentati vesof the Working Fnm~licsP~rlY. The ~urde~1 ~o provide such proorre$~s upon the...,PFtil~o~:·.( ..:t'C,

Hovland Board of 1-,1cctlOns of"IJ1C CIty of New York, 104 A.D.2d 46.); Dtlan v C arulJJ, J I A..D.2d6 6). In addition, the Court al 0 notes that he 81ecifications of objecti 11. relate L'OIdentificationnumber 13--+ nor l3-14 which were assigned. Therefore the . pccifications of obje tion are in partdefective on its face. since there is no designating. petition with identification number W 13-4attach 'd to rhe movinu papers or addressed therein.

The specifications of objection relied upon by Petitioner posit that n SU id· nti pCRriQl1 numberwas assigned to the cover sheet and that the Board of Elections orally requested the filers, to curedefects in the cover sheet, regarding identification num crs . Th record .eflccts that there 'as uowritten notice to cure the challenged co -er she t, as required by the T esignating and ominatingPc i ion Rules of the Suff lk County Board ofElections. (See § 6215.1 of the New York State BoardofElections Rules and Regulations. and § 6-134 of the Election Law). If the subject cover sheet wasdeficient. there needed to be a written, not oral. notice 1.0cure. The Court tin Is that in accordancewith Suffolk County Board or Elections Rule B(5). the assigned iIenii fication IHUlI ers on thechallenged cover sheet are sufficient. As previously noted. any cure pr cedures Q !e absent in thismutter.

Though this Court does not r ach a conclusion that the challenged cover sheet and petitioncontained deficiencies in their assigned numbering, it is nonetheless noted, that even if this courtwere ro find such deficiencies existed, it would not penalize a candidate set tor h inlthe designatingI Clition. due to til assigning of an alternate set of identification number or an err r or mistake byelection hoard official in not sending a notice to cure or orallv stati 19 [hat the submission wa:lelective. (: c. Hai lev v. t iaeQra COll;1tv Board of Elections. J 1 - 'fisc. 2d 650: Ccllllr v. Lmkin . 7l

Misc. Zd l7, . I urn d, 11 )JY2d 658.) .

This Court additionally finds no danger of confusion or fraud in the case before iJThe proc cding is hereby dismissed for the reasons set forth above.

Dated: AUIU. l 10. 2013

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