Matter of Davin v Felberman

Matter of Davin v Felberman 2022 NY Slip Op 03196 Decided on May 12, 2022 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 12, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
SHERI S. ROMAN
JOSEPH J. MALTESE
JOSEPH A. ZAYAS, JJ.
2022-03271
(Index No. 31802/22)

[*1]In the Matter of Brittany Davin, et al., petitioners-respondents, Aron

v

Felberman, et al., appellants, et al., respondent.

DECISION & ORDER

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a certificate of substitution designating Aron Felberman as a candidate in a primary election to be held on June 28, 2022, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York State Assembly for the 97th Assembly District, Aron Felberman, Michael J. Klatsky, Mona Montal, Yitzchok Ullman, Christian G. Sampson, and Aron Bineth appeal from a final order of the Supreme Court, Rockland County (Paul I. Marx, J.), dated April 29, 2022. The final order granted the petition, inter alia, to invalidate the certificate of substitution, denied the application of Aron Felberman, Michael J. Klatsky, Mona Montal, Yitzchok Ullman, Christian G. Sampson, and Aron Bineth for an opportunity to ballot, and enjoined the Rockland County Board of Elections from allowing Aron Felberman's name to be placed on the official primary ballot.

ORDERED that the final order is affirmed, without costs or disbursements.

A petition, inter alia, designating Michael J. Klatsky as a candidate in a primary election to be held on June 28, 2022, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York State Assembly for the 97th Assembly District was filed on April 7, 2022. The designating petition appointed Mona Montal, Yitzchok Ullman, Christian G. Sampson, and Aron Bineth as the committee to fill vacancies (hereinafter the committee). Klatsky subsequently declined the designation.

On April 15, 2022, the committee filed a certificate of substitution designating Aron Felberman to fill the vacancy created by Klatsky's declination. The certificate of substitution was signed by Montal, Ullman, and Bineth, but not Sampson.

The petitioners commenced this proceeding pursuant to Election Law § 16-102, inter alia, to invalidate the certificate of substitution, contending, among other things, that it failed to comply with the requirements of Election Law § 6-148. Felberman, Klatsky, Montal, Ullman, Sampson, and Bineth (hereinafter collectively the respondents) opposed the petition, inter alia, to invalidate the certificate of substitution and, in the alternative, requested an opportunity to ballot. The Supreme Court granted the petition, inter alia, to invalidate the certificate of substitution, denied the respondents' application for an opportunity to ballot, and enjoined the Rockland County Board of Elections from allowing Felberman's name to be placed on the official primary ballot. The respondents appeal.

The Supreme Court properly granted the petition, inter alia, to invalidate the certificate of substitution. Election Law § 6-148(4) requires a certificate of substitution to "be signed by a majority" of the committee to fill vacancies and to include an "affidavit of the person signing the certificate that they were a majority of such committee." "This statute addresses matters of 'prescribed content,' for which 'strict compliance' is required" (Matter of Griffin v Torres, 131 AD3d 631, 632, quoting Matter of Hutson v Bass, 54 NY2d 772, 774). It is undisputed that the subject certificate of substitution failed to include an affidavit by Montal. "While substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content" (Matter of Hutson v Bass, 54 NY2d at 774). Since the statute requires an affidavit of the person signing the certificate, and there was no such affidavit by Montal, the committee failed to strictly comply with the statutory commands, and the certificate of substitution failed to prove that a majority of the four committee members validly signed the certificate. This failure was not "technical, ministerial or inconsequential" (Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251, 258), and was fatal to the certificate of substitution (see Matter of Griffin v Torres, 131 AD3d at 632; Matter of Stevens v Collins, 120 AD3d 696, 697).

Contrary to the respondents' contention, the Supreme Court did not improvidently exercise its discretion in denying their application for an opportunity to ballot on equitable grounds. "The 'opportunity to ballot' remedy fashioned in Matter of Hunting v Power (20 NY2d 680) was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office" (Matter of Harden v Board of Elections in City of N.Y., 74 NY2d 796, 797). "It was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law" (id. at 797). "Accordingly, a court should grant an opportunity to ballot 'only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters'" (Matter of Roberts v Work, 109 AD3d 681, 682, quoting Matter of Harden v Board of Elections in City of N.Y., 74 NY2d at 797). As the valid signatures on the certificate of substitution fell short of the majority needed pursuant to Election Law § 6-148(4), the defect in the certificate of substitution was substantive, as opposed to technical, thus rendering the opportunity to ballot remedy unavailable in this matter (see Matter of Stevens of Collins, 120 AD3d at 698; Matter of Roberts v Work, 109 AD3d at 682).

The respondents' remaining contentions either need not be reached in light of our determination or are not properly before this Court.

BRATHWAITE NELSON, J.P., ROMAN, MALTESE and ZAYAS, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court