Matter of Anteri v Furey

[*1] Matter of Anteri v Furey 2012 NY Slip Op 51477(U) Decided on August 9, 2012 Supreme Court, Queens County Siegal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2012
Supreme Court, Queens County

In the Matter of the Application of Joseph P. Anteri, Petitioner(s)-Objector (s),

against

Timothy S. Furey, PHILIP RAGUSA ANTHONY DADDIEGO, ROBERT J. BISHOP PETER SUTICH, HERBERT W. STUPP JEAN EGERS, VINCENT J. TABONE , Respondents-Candidate(s), LAUREN WHALEN NELSON Respondent-Substituted-Candidate, -and- MARIA R. GUASTELLA, FREDERIC M. UMANE, JULIE DENT, J.P. SIPP, JOSE MIGUEL ARAUJO, JUAN CARLOS "J.C." POLANCO, NANCY MOTTOLA-SCHACHER, JUDITH D. STUPP GREGORY C. SOUMAS AND NAOMI BARRERA, Commissioners, Constituting the Board of Elections in the City of New York, For an Order Pursuant to Sections 16-100, 16-102 and 11-116 of the Election Law, Declaring Invalid the Designating Petition Purporting to Designate the Respondent-Candidate and substituted candidate for Public Office of Member of the New York State Assembly, 26th Assembly District Queens County New York State and the party Office of Delegate and Alternate Delegate to the Republican Judicial District Convention, 11th Judicial District, 26th Assembly District in the Primary Election to be held September 13th 2012.



15171/12

Bernice Daun Siegal, J.

The following papers numbered 1 to 10 read on this Order to Show Cause for an order declaring insufficient, defective, invalid, null and void the Designation petition filed with the BOARD OF ELECTIONS IN THE CITY OF NEW YORK, purporting to designate the Respondents-Candidates TIMOTHY S. FUREY as candidate(s) for Public Office of Member of the Assembly, 26th Assembly District Queens County Sate of New York, LAUREN WHALEN NELSON as substituted candidate for Public Office of Member of the Assembly, 26th Assembly District Queens County State of New York, PHILIP RAGUSA, ANTHONY DADDIEGO, ROBERT J. BISHOP and PETER SUTICH, Delegates to the Republican Judicial Convention, 11th Judicial District, 26th Assembly District, in the Primary Election to be held on the 13th Day of September 2012.

PAPERS

NUMBERED

Order to Show Cause to Invalidate Designating Petition.....1 - 4

Petitioner's Memorandum of Law..................................5 - 7

Respondents' Memorandum of Law................................8 - 10

Upon the foregoing papers, it is hereby ordered that the petition is resolved as follows:

The within special proceeding was commenced by Joseph P. Anteri (hereinafter "Anteri") petitioner objector pursuant to New York Election Law § 16-102 seeking an order, inter alia, to invalidate the designating petitions filed with Respondent Board of Elections in the City of New York on behalf of Respondents-candidates Timothy S. Furey as candidate for Public Office of Member of the Assembly, 26th District Queens County State of New York, Lauren Whalen Nelson as substituted candidate for Public Office of Member of the Assembly, 26th Assembly District Queens County State of New York, Philip Ragusa, Anthony Daddiego, Robert J. Bishop and Peter Sutich, Delegates to the Republican Judicial Convention, 11th Judicial District, 26th Assembly District, (hereinafter collectively referred to as "Candidates") and enjoining respondent Board from placing such Candidates on the Republican Ballot in the Primary Election to be held on the 13th Day of September 2012.

The matter was set down for a hearing on the petition to dismiss, which was held August 6, 2012 and the parties submitted memorandum of law on August 7, 2012. The sole issue, as stipulated by the parties, is whether Anteri has standing to be an "objector" as the parties agreed on the record that there were insufficient valid signatures on the nominating petitions in question.

Pursuant to Rule H-12 of the Independent Nominating Petition Rules for November 6, 2012 General Election, the Board of Elections determined on August 1, 2012 that Anteri as "objector lacked standing to file such specifications" and accordingly directed that "the specifications of objections not be worked." and that all candidates so affected remain on the ballot. Specifically, the [*2]Board of Elections found that the address of the objector Anteri, listed as 26-15 172nd Street, Flushing, New York, 11358 did not match the address listed on his voter registration card, 32-09 171st Street, Flushing New York, 11358. In addition, the objector's Voter Registration Card was signed by a Giueseppe P Anteri while the Specifications of Objections was signed by a Joseph P. Anteri.

Objector Status

Petitioner argues that the only condition precedent to Anteri's standing is that the objector timely filed objection. "The nomination or designation of any candidate for any public office or party position or any independent nomination...may be contested in a proceeding instituted in the supreme court by...a person who shall have filed objections..." (Election Law §16-102.1.) "Written Objections....may be filed by any voter registered to vote for such office and to a designating petition...for party position...by any voter enrolled to vote for such party position." (Election Law §6-154.2.) The question before the court is whether Anteri qualified to be an objector. Candidate Respondents contend that due to Anteri's change of residence, use of multiple names [FN1] and the inconsistencies in his signatures, he was not qualified to be an objector.

At the hearing, Anteri testified that he was the same person as "Giuseppe P. Anteri" and that his name is "Giuseppe P. Anteri" but that he would often use the American version of his name "Joseph P. Anteri." He further testified that he had resided in his parents' home at 32-09 171st Street, Flushing New York, 11358 but in 2002 he purchased a home and after several years, he moved to the 26-15 172nd Street, Flushing, New York, 11358 address, continuing to vote, last voting in 2009, without changing his voter registration. Anteri then provided handwriting samples to the court, as requested by Respondents, which established that he signed the Specifications of Objections. (See CPLR § 4536.) Upon review of the signatures entered into evidence as Exhibit A together with the uncontested testimony of Anteri, the court finds that the signatures on the Voter Registration Card and the Specifications of Objections are that of the petitioner Anteri.

The next issue presented is whether Anteri's change of residence renders his status as an objector invalid. Respondents contend that Anteri has not voted since 2009 and the address listed in the Specifications of Objections did not match the address listed on his Voter Registration Card. Pursuant to Election Law 6-154, written objections to a designating petition for public office may only be filed by any voter enrolled to vote for such party position.'" (Cantatore v. Sunderland, 196 AD2d 606[2nd Dept 1993]; Lucariello v. Niebel, 72 NY2d 927 [1988].) The testimony adduced at the hearing established that Anteri was an enrolled member of the Republican Party and registered to vote at 32-09 171st Street, Flushing New York, 11358, an address located within the 26th Assembly District. It is also undisputed that Anteri's current residence, 26-15 172nd Street, Flushing, New York, 11358, is likewise located in the 26th Assembly District.

Respondents argue that Anteri's failure to re-register at his new address is fatal to his status as an objector. An objector must be a qualified voter and timely file objections and specifications as a citizen-objector. (Doran v. Scranton, 49 AD2d 976 [3rd Dept 1975].) There is no issue regarding the timeliness of the objection, therefore the issue is whether Anteri is a "qualified voter," despite having failed to re-register after moving residence from within the 26th Assembly District. Election [*3]Law §8-302-3(b) states in part, that "[a] person who claims to have moved to a new address within the election district in which he is registered to vote shall be permitted to vote in the same manner as other voters unless challenged on other grounds." Furthermore, pursuant to Election Law §5-210, "voters currently registered do not need to reregister unless they have moved outside of the city or county in which they were registered." (See Matter of Coopersmith v Ortutay, 76 AD3d 651 [2nd Dept 2010].) Moreover, there is no evidence that Anteri's voter registration had been cancelled, so the mere fact that the buff card does not reflect the current address, does not render a voter unqualified. (See Hudson v. Board of Elections, 207 AD2d 508 [2nd Dept 1994].) For the reasons set forth above, Anteri is a "qualified voter", enrolled in the Republican Party, and therefore his status as an "objector" is upheld.

Preclusive Effect of Board of Elections Ruling

Respondents contend that the Board of Elections ruling precludes this Court from Reviewing that decision. Respondents' cite to the Board of Elections Rule H-12 which states in pertinent part that the "Deputy Chief Clerk (or their designees) shall review said specifications of objections on their face and determine if... the objectors lack standing to file such objections." However, Rule H-12 does not preclude the Supreme Court from making a finding as to the standing of Anteri. The Election Law specifically provides for judicial process by a de novo hearing on the validity of petitions. (See § 16-102 et seq.). To say that the Board of Elections' rules require blind adherence by the courts, render the special proceedings provided for under statute a nullity.

It therefore hereby is

ORDERED AND ADJUDGED, that the petition by petitioner Joseph Anteri for an order declaring insufficient, defective, invalid, null and void the Designation petition filed with the BOARD OF ELECTIONS IN THE CITY OF NEW YORK, purporting to designate the Respondents-Candidates TIMOTHY S. FUREY as candidate(s) for Public Office of Member of the Assembly, 26th Assembly District Queens County Sate of New York, LAUREN WHALEN NELSON as substituted candidate for Public Office of Member of the Assembly, 26th Assembly District Queens County State of New York, PHILIP RAGUSA, ANTHONY DADDIEGO, ROBERT J. BISHOP and PETER SUTICH, Delegates to the Republican Judicial Convention, 11th Judicial District, 26th Assembly District, in the Primary Election to be held on the 13th Day of September 2012 is granted, and it is further

ORDERED and ADJUDGED, that the designating petition naming TIMOTHY S. FUREY as candidate(s) for Public Office of Member of the Assembly, 26th Assembly District Queens County Sate of New York, LAUREN WHALEN NELSON as substituted candidate for Public Office of Member of the Assembly, 26th Assembly District Queens County State of New York, PHILIP RAGUSA, ANTHONY DADDIEGO, ROBERT J. BISHOP and PETER SUTICH, Delegates to the Republican Judicial Convention, 11th Judicial District, 26th Assembly District, in the Primary Election to be held on the 13th Day of September 2012, hereby are invalidated, and it is further

ORDERED and ADJUDGED, that the respondent Board of Elections in the City of New York is enjoined, restrained and prohibited from putting the names of LAUREN WHALEN NELSON as substituted candidate for Public Office of Member of the Assembly, 26th Assembly District Queens County State of New York, PHILIP RAGUSA, ANTHONY DADDIEGO, ROBERT J. BISHOP and PETER SUTICH, Delegates to the Republican Judicial Convention, 11th Judicial District, 26th Assembly District, in the Primary Election to be held on the 13th Day of September [*4]2012, on the official ballot as candidates in the Republican primary to be held on September 13, 2012.

Dated: August 9 , 2012___________________________

Bernice D. Siegal, J. S. C. Footnotes

Footnote 1:The objector's Voter Registration Card was signed Giuseppe P. Anteri while the Specifications of Objection was signed Joseph P. Anteri.