Kelly v Dowler

[*1] Kelly v Dowler 2006 NY Slip Op 51896(U) [13 Misc 3d 1218(A)] Decided on August 4, 2006 Supreme Court, Suffolk County MacKenzie, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2006
Supreme Court, Suffolk County

Kevin E. Kelly, Petitioner,

against

William J. Dowler, BARRY G. ZIPPELIUS as CHAIRMAN OF HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE SATE OF NEW YORK PARTY COMMITTEE, RICHARD L. THURY AS FORMER CHAIRMAN OF THE HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE STATE OF NEW YORK, BARRY G. ZIPPELIUS AS CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE STATE OF NEW YORK, RICHARD THURY AS FORMER CHAIRMAN OF THE EXECUTIVE COMMITTEE OF THE HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE STATE OF NEW YORK, THE HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE STATE OF NEW YORK AND THE EXECUTIVE COMMITTEE OF THE HUNTINGTON TOWN COMMITTEE OF THE CONSERVATIVE PARTY OF THE STATE OF NEW YORK, -and ROBERT GARFINKLE AND ANITA KATZ BEING THE COMMISSIONERS OF THE BOARD OF ELECTIONS IN SUFFOLK COUNTY, AND THE SUFFOLK COUNTY BOARD OF ELECTIONS, Respondents.



19946-06



Edward A Nitkewicz, Esq.

Attorney for Petitioner

356 Veterans Mem. Hwy.

Commack, NY 11725

David T. Reilly, Esq.

Christine Malafi, Esq.

Reilly & Reilly, LLP

Suffolk County Attorney

Attorneys for Defendant

170 Old Country Road

Suite 308

Mineola, NY 11501

by: Rachel C. Anello

Attorney for Respondents

Garfinkle, Katz & Suffolk

County Board of Elections

100 Veterans Mem. Hwy.

Hauppauge, NY 11787

Carol MacKenzie, J.

This is a special proceeding brought pursuant to the Elction Law seeking a declaration that the determination of the respondents, Robert Garfinkle and Anita Katz, commissioners of the Suffolk County Board of Elections is erroneous with respect to their determination allowing the filing of a Certificate of Authorization; that the Certificate of Authorization filed by Respondents is invalid, improper and contrary to law and directing that the respondent Commissioners and Board of Elections remove said Certificate from their files; a declaration that a certain meeting of the Town of Huntington Conservative Party Executive Committee held July 17, 2006 is invalid and improper; and a declaration that the designating petition purporting to designate the respondent, William J. Dowler, is invalid.

The petitioner is an enrolled voter of the Conservative Party residing in the Town of Huntington, Suffolk County, New York.

The respondents are William J. Dowler, the candidate of the Conservative Party for the public office of Town Councilman, Town of Huntington; Barry G. Zippelius, Chairperson of both the County and Executive Committees of the Town of Huntington Conservative Party; Richard Thury, former Chairperson of both the County and Executive Committees of the Town of Huntington Conservative Party; the Executive Committee of [*2]the Town of Huntington Conservative Party and the County Committee of the Town of Huntington Conservative Party, as well as Robert Garfinkle and Anita Katz, Commissioners of the Suffolk County Board of Elections and the Suffolk County Board of Elections.

The petition makes the following allegations: that the meeting at which the respondent Dowler was selected as the candidate of the Conservative Party was not noticed or held in accordance with the rules and regulations of the Huntington Conservative Party and, thus, such meeting and designation are invalid; that the Certificate of Authorization does not adequately identify the public office of councilperson in that the term of office is missing; that the specifications of the grounds of the general objections filed with the Board of Elections are sufficient and that the Certificate of Authorization was not executed by persons with authority to do so by either State, County or Town Conservative Party rules.

The respondents, other than the Board of Elections, make the following arguments: Petitioner lacks standing; that the Board of Elections made a valid determination that the specifications of objections are insufficient; that the Certificate of Authorization was validly obtained and executed; that petitioner has failed to name all necessary parties to this action; that the meeting at issue did not violate the rules of the Conservative Party and that the public office of Town Councilperson is properly stated on the Dowler designating petition.

THE MEETING

By notice dated July 12, 2006 and entitled "Official Meeting Notice" a meeting of the Huntington Town Conservative Party Town Executive Committee was called for Monday July 17, 2006. The notice was signed "Debra B. Rera, Secretary"[FN1] and the agenda included election of both a Chairman and Secretary of the "Wilson-Pakula Authorization meeting" and "authorization of a candidate for the office of Councilman".

The Rules provide that a special meeting of the Town Executive Committee may be called by the Chairman of the Town Executive Committee or by the Chairman of the Town Committee. They further provide that notice of the time and place of all meetings of the Town Committee must be mailed to each member not less than five (5) days before such meeting. The Rules do not provide for any time limitation for notices of meetings of the Town Executive Committee except in those instances where a majority of its [*3]members has petitioned for a meeting, which is not the circumstance in this case.

It is axiomatic that the person designated to call a meeting may delegate the ministerial task of sending notice to another. In this case, the committee Secretary sent the notice and there is no allegation that she did so unilaterally or without the knowledge of the Chairman. Therefore, the court finds petitioner's argument unavailing as to the invalidity of the meeting at issue. Further, there is no requirement in the Rules that the meeting notice for a meeting of the Town Executive Committee had to be mailed five days prior to the meeting, itself.[FN2] Thus, the court finds that the meeting was not noticed in contravention of the rules.

SPECIFICITY OF THE OBJECTIONS

Petitioner filed two objections to the Conservative Petitions at issue. First, that the petition lacks specificity in that it fails to describe the public office as one for an "unexpired term". The Board of Elections concluded that the failure to include "unexpired term" on the petition has "no reasonable probability of confusing, misleading or deceiving the signers, voters or the Board". This court concurs. The parties agree that there is only once council position subject to election in the Town of Huntington this November. Thus, the failure to specify "unexpired term" cannot create any confusion with respect to other candidates or offices. A petition which fairly gives notice of the position sought such that it does not confuse, mislead or deceive should be sustained._______________

Second, petitioner states in his specifications of objections to the Conservative Petitions that no Certificate of Authorization was timely filed, and it is invalid and defective because it is not authorized "in accordance with the requirements and procedures set forth in the application [sic] provisions of the Election Law and the cases decided thereunder and/or in accordance with the bylaws of the Suffolk County and/or Huntington Town Conservative Committees and/or has not been authorized by a sufficient number of members of the Executive Committee(s) of said committee(s) and/or due notice of the meeting of said Executive committee(s) was not given as required and/or that a quorum of the said Executive committee(s) was not present and/or had not been given notice as required and/or the meeting of the Executive committee(s) was not [*4]properly called and/or is not otherwise valid as to form and contents of said certificate of authorization and/or other violations of the aforesaid County and/or Town Committee bylaws".

The Board of Elections determined that these specific objections did not meet the requirements of specificity. The court agrees. The specific objections are, at best, generic boilerplate allegations which are conclusory in nature and offer no specifics as to the nature of these conclusions. ______________________________________ These generic allegations do not rise to the level required to give respondents notice to the degree required in order to apprise respondents of petitioner's cause of action, (See McKinney's Election Law §6-154). As to the timeliness of the filing, the Certificate of Authorization was mailed four days after the last day to file petitions, which is in accordance with applicable law regarding the filing of Certificates of Authorization, (See McKinney's Election Law §§6-158 (1) & (2), _______________________________

STANDING

Respondents have raised the issue of standing. Respondents aver that having not raised objections with specificity at the Board of Elections, petitioner is precluded from expanding upon those specific objections in this proceeding.

In order to protect respondents' due process rights, this court should not permit petitioner to prove defects not listed in the specifications of objections or to argue points not raised before the Board of Elections, [Mazza v. Board of Elections of the County of Albany, 196 AD2d 679 (3rd Dept. 1993)]. Having failed to give sufficient specifics at the Board, petitioner lacks standing to do in this special proceeding. Further, with respect to petitioner's challenge to the Certificate of Authorization vis a vis the notice of meeting arguments, it is well settled that where a challenge is directed to the manner in which a particular party or party committee designates a candidate, a non-party candidate will not be deemed aggrieved on the theory that he has no interest in whether the formalities of the process have been followed, [Gross v. Hoblock, 6 AD3rd 933 (3rd Dept. 2004)]. Thus, with respect to petitioner's arguments as to the Certificate of Authorization, this court finds that the petitioner lacks standing to raise any argument as they do not address a legislatively mandated requirement of the election law, but rather deal with the internal processes of the respondents.

For all of the foregoing reasons, the petition is hereby dismissed. Any remaining contentions, to the extent not specifically addressed, have been examined and found to be without merit. [*5]

This memorandum shall constitute both the decision and the order of this Court.

ENTER

DATED: August 4, 2006

CAROL MACKENZIE

J.S.C. Footnotes

Footnote 1: There is no dispute that Debra B. Rera is the duly elected Secretary of the Huntington Town Conservative Party Town Executive Committee

Footnote 2: Petitioner attaches to his petition a copy of an envelope with the notation"Official Meeting Notice" and postmarked July 13, 2006 purportedly sent to Thomas G. Teresky in an apparent attempt to buttress his argument of insufficient notice. However, Mr. Teresky is not identified in the petition and is not a party to this action. For reasons stated, infra, petitioner cannot piggyback his claim to one who is not an aggrieved party.