Carpenter v Eagleton

[*1] Carpenter v Eagleton 2009 NY Slip Op 51708(U) [24 Misc 3d 1232(A)] Decided on August 6, 2009 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 6, 2009
Supreme Court, Dutchess County

Gretchen Carpenter, Aggrieved Candidate, Petitioner,

against

Sean T. Eagleton, DUTCHESS COUNTY BOARD OF ELECTIONS, FRAN KNAPP, Commissioner of Elections, DAVID J. GAMACHE, Commissioner of Elections, Respondents.



2009-5867



DAVID A. SEARS, ESQ.

Attorney for Petitioner

One Civic Center Plaza, Suite 302

Poughkeepsie, New York 12601

PETER L. MAROULIS, ESQ.

Attorneys for Respondent

SEAN T. EAGLETON

104 Hooker Avenue

Poughkeepsie, New York 12601

KEITH P. BYRON, ESQ.

ASSISTANT COUNTY ATTORNEY

DUTCHESS COUNTY ATTORNEY Attorneys for Respondents

BOARD OF ELECTIONS, FRAN KNAPP,

Commissioner of Elections, and DAVID J.

GAMACHE, Commissioner of Elections

22 Market Street

Poughkeepsie, New York 12601

James D. Pagones, J.

Petitioner, Gretchen Carpenter, is a resident of the Town of Poughkeepsie, and at all times relevant to this proceeding has resided at 35 Logans Court, Poughkeepsie, New York. Petitioner is a candidate for the Town of Poughkeepsie Town Board Member, 2nd Ward, in Dutchess County, State of New York and alleges that she has been nominated by a Conservative Party designating petition filed with the Dutchess County Board of Elections by the Conservative party.

Respondent, Sean T. Eagleton, resides at 96 Autumn Drive, Poughkeepsie New York, has also filed a designating petition for the Conservative Party nomination to be a candidate for Town Board Member for the Town of Poughkeepsie, 2nd Ward. Respondents Fran Knapp and David J. Gamache constitute Commissioners of the Board of Elections for Dutchess County with principle offices located at 47 Cannon Street, Poughkeepsie, New York.

Petitioner seeks, inter alia, an order declaring respondent's Conservative Party designating petition for the upcoming primary election null and void. Petitioner requests an order enjoining the Dutchess County Board of Elections from printing and placing respondent's name on the primary election ballot as the conservative party candidate for the office of [*2]Poughkeepsie Town Board Member for the 2nd Ward.

Respondent cross-claims for an order permitting Patricia Killian to execute the acknowledgement on the certificate of acceptance filed July 17, 2009 and deem it effective, nunc pro tunc. The Respondent demands, in the alternative, that the court direct the Board of Elections to accept for filing an acknowledged certificate of acceptance filed July 30, 2009.

On or about July 16, 2009, a designating petition was filed in the office of the Dutchess County Board of Elections purporting to nominate Sean T. Eagleton as a Conservative Party candidate for the Poughkeepsie Town Board Member, 2nd Ward. Respondent Eagleton is not a registered member of the Conservative Party. Respondent Eagleton also filed an acceptance of party designation on or about July 16, 2009. It is uncontroverted that the acceptance was not acknowledged as required by Election Law §6-146. Respondent subsequently filed an acknowledged acceptance on July 30, 2009.

Respondent has submitted the affidavit of Patricia K. Killian in which she avers that Mr. Eagleton signed the acceptance in her presence but she neglected to fill in the notarial certificate or sign it before filing it with the Board of Elections on July 17, 2009.

Dutchess County Election Commissioners, David J. Gamache and Fran Knapp, disagree as to whether Respondent Eagleton's Certificate of Acceptance should be considered valid. Commissioner Gamache contends that Election Law §6-146 does not require the certificate of acceptance to be notarized and has determined that respondent's acceptance is valid. Commissioner Knapp has ruled that the unacknowledged certificate is invalid.

Election Law §6-146, provides in pertinent part that:

"[a] person designated as a candidate for nomination or for party position . . . if designated or nominated for a public office . . . by a party of which he is not a duly enrolled member . . ., such person shall, in a certificate signed and acknowledged by him, and filed as provided in this article, accept the designation or nomination as a candidate of each such party . . ., otherwise such designation or nomination shall be null and void."

The Court of Appeals has determined that the acknowledgement requirement of Election Law § 6-146 is to be strictly construed. The Court has held that:

"We would only add that section 6-146 of the Election Law requires a candidate nominated by a political party other than of a party of which he is an enrolled member to accept or decline that nomination in a certificate signed and acknowledged by him.' The statute further provides that failure to comply will render the nomination null and void. We have repeatedly said that statutory commands as to matters of content must be strictly complied with. (citations omitted). The courts enjoy no discretion to allow candidates to deviate from these legislative mandates." [*3]

(Rhodes v. Salerno, 57 NY2d 885, 887 [1982]).

Similarly, the Appellate Division for the Second Department has held that:

"Election Law §6-146 (1) requires that a party nominated for an office otherwise than at a primary election' may accept the nomination in a certificate signed and acknowledged by him.' Here, there is no acknowledgement on the document of acceptance. Therefore, the certificate of acceptance is invalid. (Bunger v. Berger, 196 AD2d 867, 868 [2nd Dept. 1993])

This court finds that respondent's unacknowledged acceptance is invalid.

Pursuant to Election Law §6-158 (1) :

"[a] designation petition shall be filed not earlier than the tenth Monday before, and not later than the ninth Thursday preceding the primary election. A certificate of acceptance or declination of a designation shall be filed not later than the fourth day after the last day to file such designation."

In Rhodes, the Court held that any late attempt to comply with Election Law §6-146 will be unsuccessful, for the statutory commands must be "strictly complied with" (Rhodes, supra at 887).

Respondent's reliance upon Crisafulli, Carson, Rapkin and Dow[FN1] is misplaced. The courts in those decisions were relying upon Election Law §330 which was amended in 1974. The current statute (Election Law §16-100) omitted the former language "and the supreme court shall make such order as justice may require" which imbued a trial court with the discretion to disregard a lack of substantial compliance with the statute if justice required. That statutory discretion no longer exists. Additionally, while not specifically overturned, the decisions cited by respondent were implicitly rejected by the Court of Appeals when it stated that "statutory commands as to matters of content must be strictly complied with." (Rhodes, supra) Our courts no longer recognize any discretionary authority with regards to matters of "prescribed content." (Rhodes v. Salerno, 90 AD2d 587 [3rd Dept 1982] affd 57 NY2d 885 [1982].)

Conklin v. Canary, 112 AD2d 1062 (2nd Dept 1985), cited by respondent, is inapplicable in the instant proceeding since it dealt with the mere omission of the date for the primary election on the certificate of acceptance rather than any "prescribed content," such as the acknowledgement. [*4]

Respondent's failure to include the acknowledgement prescribed by Election Law §6-146 renders his acceptance filed July 17, 2009 invalid. There is no statutory basis upon which this court could permit Patricia Killian to complete an acknowledgement after the acceptance has been filed.

The primary election at issue is scheduled for September 15, 2009. Pursuant to statute, Mr. Eagleton had until July 16, 2009 to file a designation petition and until July 20, 2009 to file a Certificate of Acceptance. Both the designation petition and the Certificate of Acceptance in question were filed on or about July 16, 2009. The Respondent failed to timely file a valid acceptance. Respondent urges the court to permit his acknowledged acceptance filed on July 30, 2009 to be filed nunc pro tunc effective July 20, 2009.

There is no statutory basis upon which this court may permit respondent to cure his failure to timely file a valid acceptance. The court finds that respondent is absolutely barred from filing an acceptance nunc pro tunc after July 20, 2009.

CPLR Rule 409(b) requires this court to make a summary determination upon the pleadings and submissions to the extent that there are no triable issues of fact.There are no triable issues of fact on this petition and cross-claims. The court must make a determination as if a motion for summary judgment were before it. (Friends World College v. Nicklin, 249 AD2d 393 [2d Dept, 1998])

For all the foregoing reasons it is ordered that the instant petition is granted and the respondent's cross-claims are denied. It is ordered that respondent's designation is null and void pursuant to Election Law §6-146 and the Dutchess County Board of Elections is hereby enjoined from placing respondent's name on the primary election ballot as the Conservative Party candidate for the office of Poughkeepsie Town Board Member for the 2nd Ward.

On this application the court has considered the following documents:

Page Numbered

1.Order to Show Cause .. 1 - 3

Verified Petition—Gretchen Carpenter . ... ..1 - 12

Affirmation-David A. Sears, Esq ...1 - 3

Exhibit .. . . ..A

2.Verified Answer & Cross-Claims .. . ..1-10 [*5]

Affidavit in Opposition—Patricia Killian .. 1-2

Affidavit in Opposition—Sean Eagleton 1-5

Exhibits 1-3

Memorandum of Law—Peter L. Maroulis, Esq., ..1-6

3.Board of Elections Determination .. . .1- 2

The foregoing constitutes the decision and order of the Court.

Dated: Poughkeepsie, New York

August 6, 2009

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

DAVID A. SEARS, ESQ.

Attorney for Petitioner

One Civic Center Plaza, Suite 302

Poughkeepsie, New York 12601

PETER L. MAROULIS, ESQ.

Attorneys for Respondent

SEAN T. EAGLETON

104 Hooker Avenue

Poughkeepsie, New York 12601

KEITH P. BYRON, ESQ.

ASSISTANT COUNTY ATTORNEY

DUTCHESS COUNTY ATTORNEY [*6]

Attorneys for Respondents

BOARD OF ELECTIONS, FRAN KNAPP,

Commissioner of Elections, and DAVID J.

GAMACHE, Commissioner of Elections

22 Market Street

Poughkeepsie, New York 12601 Footnotes

Footnote 1: Crisafulli v. Lomenzo, 18 NY2d 787 (1966); Carson v. Lomenzo, 18 NY2d 263 (1966); Rapkin v. Lomenzo, 40 AD2d 727 (3rd Dept 1966); Dow v. Lomenzo, 52 Msc. 2d 153 (Sup Ct Albany Co 1966).