Dinowitz v Rivera

[*1] Dinowitz v Rivera 2008 NY Slip Op 52617(U) [22 Misc 3d 1108(A)] Decided on November 25, 2008 Supreme Court, Bronx County Seewald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2008
Supreme Court, Bronx County

Jeffrey Dinowitz, CARL HEASTIE, AURELIA GREENE, MICHAEL BENEDETTO, ANNABEL PALMA, HECTOR RAMIREZ, RANDI MARTOS and MARRICKA SCOTT-MCFADDEN, Petitioners,

against

Jose Rivera, LATISHA SEABROOK, CARMEN E. ARROYO, PETER M. RIVERA, GERALD SHEIOWITZ, RICHARD IZQUIERDO-ARROYO and MARIA BAEZ, et. al., , Respondents. JOSE RIVERA, LATISHA SEABROOK, CARMEN E. ARROYO, PETER M. RIVERA, GERALD SHEIOWITZ, and RICHARD IZQUIERDO-ARROYO, Petitioners, JEFFREY DINOWITZ, AURELIA GREENE, MICHAEL BENEDETTO, ANNABEL PALMA, MICHAEL BENJAMIN, HECTOR RAMIREZ, CARL HEASTIE and HOWARD VARGAS, et. al., Respondents.



260448/08



Jeffrey Dinowitz et. al. was represented by Stanley Kalmon Schlein, Esq.(Bronx, NY), and Henry Berger, Esq. (NY, NY)

Jose Rivera et. al. was represented by Jerry H. Goldfeder, Esq. Special Counsel to Stroock & Stroock & Lavan LLP. and Sandra J. Rampersaud, Esq. Associate at Stroock & Stroock & Lavan LLP. (NY, NY)

Robert G. Seewald, J.

A joint hearing was conducted in these special proceedings, entitled Jeffrey Dinowitz v. Jose Rivera, et. al., Index # 260448/08, and Jose Rivera v. Jeffrey Dinowitz, Index # 260452/08, [*2]in which the parties seek a determination as to the validity of the meetings conducted at the Utopia Paradise Theater, Bronx, New York (hereinafter referred to as the "Theater") on September 28, 2008, for the purpose of electing the Bronx County Democratic Party leadership. The parties, hereinafter referred to as "the Heastie faction" and "the Rivera faction," presented and argued their respective positions before this Court from October 27, 2008 through and including October 31, 2008. At the hearing, the following witnesses testified before the Court: Carl Heastie, Aurelia Greene, Thomas Sattie, Howard Vargas, Christopher Cernik, Gerald Sheiowitz, Mark Schilansky, Maria Baez, Richard Izquierdo-Arroyo, Annabel Palma and Christopher McShane.

In the proceeding entitled Jeffrey Dinowitz v. Jose Rivera, et. al., Index # 260448/08, the Rivera faction interposed an answer asserting several affirmative defenses, which included challenges to jurisdiction, service, and failure to serve a necessary party.

Preliminarily, it should be emphasized that the governance of a political party is best left to that party's leadership and members. However, this Court has been called upon to issue a determination regarding the party's governance. The Court must do so, though political compromise would have been, by far, the better course.

The Court may resolve these matters in one of the following three ways:

1) Declare both meetings out of order and effectively direct a new organizational meeting be held; or

2) Rule in favor of the Rivera faction; or

3) Rule in favor of the Heastie faction.

The Court must decide this controversy pursuant to the applicable legal standard which is the preponderance of the evidence. As discussed infra, following careful consideration, the first option would ignore the evidence presented and will not be the resolution found viable by this Court.

The following facts were elicited during the hearing:

A meeting of the Bronx Democratic Party County Committee was called to be held on September 28, 2008 at 6:30 P.M. at the Theater. Members of the County Committee, who had been elected at the Democratic Party Primary Election held on September 9, 2008, were eligible to participate and vote at the organizational meeting. The Chair of the meeting was Carl Heastie (Heastie), whose duty it was to oversee and conduct the meeting. The Rivera faction arranged for the venue, security, and seating.

Each party made its own provisions to have County Committee members and non-voting supporters transported to the meeting by buses and private cars.

The Theater, located on the Grand Concourse in Bronx County, is a facility capable of seating approximately 6,000 people. A majority of the seats, approximately 4,000, are located on the Theater's main level, and the balance of the seats are in an upper balcony.

The stage was fitted with two tables, a number of chairs, a podium and one microphone. The facility has several doors which lead from the outside into the lobby. There are also several doors which lead from the lobby into the theater. Each Committee member and guest attending the meeting was required to pass through a magnetometer that was situated just beyond the only open lobby entrance door. After passing through the magnetometer, the County Committee members had to check in at the tables assigned for their Assembly District. These tables were set [*3]up in the lobby area for County Committee members to officially register their attendance. Each table contained the sign-in registration books, Petitioners' Exhibit 11 and Respondents' Exhibit A, for two Assembly Districts. These green covered sign-in books contained the name of each of the elected County Committee members, listed in alphabetical order, as well as a facsimile of the member's signature taken from the voter records.

By prior agreement with the Rivera faction, Heastie was responsible

for the credentialing process. The testimony was unclear as to whether or not Heastie actually established a formal Credentials Committee; however, there is no dispute that a credentialing process was authorized and in place at the Theater for the meeting.

Heastie designated Howard Vargas, Esq., to head the credentials process (hereafter the "Credentials Head"). The Credentials Head was charged with the responsibility of having each elected member of the County Committee sign-in in the appropriate sign-in book. After signing in, each County Committee member received a yellow wrist band evidencing his or her status as an individual entitled to vote at the meeting. Once the County Committee members received a yellow wrist band, they were free to enter and locate the designated seating area for their corresponding Assembly District. While most of the Assembly Districts were located on the main level, at least three Assembly Districts were seated in the upper balcony, to wit: the 82nd, 83rd and 85th Assembly Districts.

The credentialing process began at approximately 4:15 P.M. and continued until all persons waiting on line had entered the Theater and signed in. The processing was completed at approximately 8:00 P.M. At the conclusion of the process, the Credentials Head reported to the stage to notify both Heastie and Party Secretary, Aurelia Greene (Greene), that a quorum of voting County Committee members was present.

Prior to this notification, at approximately 7:30 P.M., the Credentials Head had gone to the stage to inform Heastie that the credentialing process was "winding down." The Credentials Head then returned to the lobby area where a scuffle broke out between the Rivera faction and the Heastie faction over possession of the green sign-in books.

Following this brief fracas, the Credentials Head regained possession of the sign-in books. He then took a list of the eleven Assembly Districts covered by the Bronx Democratic Party together with all eleven sign-in books with him to the stage where both Heastie and Greene were sitting. The sheet with the list of the eleven Assembly Districts now contained the Credential Head's calculation of the number of County Committee members signed in for the meeting for ten out of the eleven Assembly Districts. When the Credentials Head sat down to calculate the number of County Committee members in attendance from the one remaining Assembly District, a member of the Rivera faction "snatched" the green covered sign-in books from the table where the Credentials Head was working. This took place on the right side of the stage sometime after 8:00 P.M.

Thereafter, a compromise was negotiated concerning possession of these sign-in books. A majority of the eleven books, or portions thereof, was returned to the Credentials Head. This incident prompted the Credentials Head to file an official police complaint. It is unrefuted that a portion of several of the green sign-in books was [*4]retained by the Rivera faction, however, those retained sign-in book sections were admitted into evidence during the hearing in this matter. Respondents' Exhibit A.

The evidence adduced establishes that both the County Committee members and their non-voting supporters entered the seating area of the Theater and were seated together. No effort was made to separately seat the voting members from the non-voting guests. The entire Theater, including that portion in which County Committee members were seated, was dimly lit.

In addition to the incidents outlined above, the following other activity was taking place. At approximately 6:45 P.M., the First Vice-Chair of the Bronx Democratic Party County Committee, Maria Baez (hereinafter "Baez" or "First Vice-Chair"), asked Heastie when he was going to call the meeting to order. Heastie responded that he would call the meeting to order after the members waiting on line had checked-in, and he received a report from the Credentials Head.

Heastie then made an announcement to the people sitting in the Theater that he was awaiting the report of the Credentials Head indicating that a quorum was present, and that he would thereafter call the meeting to order.

At approximately 7:00 P.M., the First Vice-Chair again asked Heastie when he was going to call the meeting to order. Heastie again responded that he would call the meeting to order as soon as he received the report from the Credentials Head.

At approximately 7:30 P.M., the First Vice-Chair requested that Heastie call the meeting to order a third time. Heastie again told her that he was awaiting the report of the Credentials Head indicating that a quorum was present and that only then would he call the meeting to order. Thereupon, the First Vice-Chair requested that Greene, the Secretary of the party, who was seated on the stage next to Heastie, call the meeting to order. Greene testified that she refused to do so. Greene further testified that she told the First Vice-Chair that as Heastie was present, as Chair, he was in charge. Both Greene and Heastie remained seated at a table on the stage next to the podium.

The First Vice-Chair testified that she had arrived at the Theater at approximately 4:00 P.M. and that she had proceeded to an upstairs office. In the office, she was handed a "script" by a lawyer representing the Rivera faction. Her testimony regarding this "script" was confusing; however, she testified that its purpose was to assist her in the conduct of the meeting as its chair.

When she left the upstairs office, the First Vice-Chair spoke with several elected officials and members of the Bronx Democratic Party, and then she went to the front of the Theater and onto the stage.

Following her third request to Heastie to start the meeting, the First Vice-Chair went to the microphone at the podium and urged the people inside the Theater to start the meeting. A chant was allegedly initiated by the First Vice-Chair to "Start the Meeting."

A few minutes later, at approximately 7:42 P.M., the First Vice-Chair called the meeting to order. She testified that a motion from the floor was made for her to do so; however, upon this Court's review of the minutes of the Rivera faction's organizational meeting, there was no mention that any such motion had been made. No evidence was presented to establish that the First Vice-Chair designated anyone to take the minutes of the meeting which she called to order; however, a non-stenographic [*5]summary of the proceedings was submitted, as aforesaid. Prior to her calling the meeting to order, the First Vice-Chair testified that she concluded that a quorum was present based upon her personal observations of the people in the Theater. After calling the meeting to order, she proceeded to follow the script which she had been given in the upstairs office. She called upon people designated in said script to make various motions. These motions included one for the election by voice vote of new members to fill vacancies on the Bronx Democratic Party County Committee. The First Vice-Chair testified that she had also been given a list of three hundred ninety-nine names to fill vacancies on the County Committee. Of those three hundred ninety-nine persons named on this list, the Heastie faction contended that only two hundred thirty-six would be eligible to serve on the County Committee.

During the proceedings before this Court, the above described actions of the First Vice-Chair were referred to as "the Baez meeting," and the later actions of Heastie were referred to as "the Heastie meeting." These references will continue in the discussion infra.

At the Baez meeting, the First Vice-Chair called for the suspension of the calling of the roll, appointed a temporary chair, elected a new chair of the County Committee and elected a new Party Secretary. New party Rules were also adopted. Petitioners' Exhibit 6. By operation of the newly adopted rules, it was not necessary to elect the Chair of the Executive Committee since the Chair of the County Committee automatically became Chair of the Executive Committee.

The First Vice-Chair testified that she solicited only voice votes by "Aye" or "Nay." On each of these votes, the First Vice-Chair indicated that she relied on her auditory ability to determine the outcome of the vote. Several witnesses testified that neither Heastie, nor anyone else, raised a formal objection or point of order to the motions or conduct of the First Vice-Chair; however, a chant of "No way Jose" was heard in the Theater during the Baez meeting.

Approximately thirty minutes after commencement of the Baez meeting, it was adjourned. Testimony was elicited that members of the Rivera faction then disconnected the microphone on the podium and removed the wiring necessary to operate the sound system.

Heastie thereupon announced to the audience that the organizational meeting was being called to order as the Credentials Head had informed him that a quorum was present. Using a bullhorn that he had brought with him, Heastie exhorted the members of the committee and their guests to remain in the Theater for the Organizational meeting of the County Committee. Heastie also urged County Committee members in the balcony to take seats on the main floor.

Heastie testified that once he started the meeting, he proceeded through the process of electing the new officers of the Bronx Democratic Party County Committee. The services of a stenographer had been retained to take the minutes of the meeting, however, the stenographer was prohibited from sitting on the stage by the Rivera faction. The stenographer's presence was only permitted on the stage once the Baez meeting ended.

In conducting the meeting, Heastie requested that the members of the County Committee stand and display the yellow wrist bands for identification while voting. [*6]After the election of the new County Committee officers, Heastie conducted a second meeting to elect the members of the Executive Committee.

With respect to the actions of Baez and Heastie, each party called an expert in parliamentary procedure. These parliamentarians were qualified as experts by the Court and rendered testimony regarding the procedures to be followed in the conduct of the organizational meeting under the rules of the Bronx Democratic Party and under Robert's Rules of Order.[FN1] In addition, both experts expressed their views as to the conduct of the Chair of the meeting.

Both experts generally agreed that the Chair of the meeting has broad discretion regarding how a meeting is to be conducted. This discretion is not unfettered and must be exercised in accordance with, and in consideration of, the rules of the organization. All voting members have an equal right to participate and vote at the meeting. The experts were in disagreement, however, regarding whether or not the Chair may await the arrival of a "tardy" member, that is, one who arrived at the location after the designated time for the start of the meeting, and whether that "tardy" member is entitled to have the meeting delayed in order for his or her vote to be counted.

These parliamentarian experts also disagreed as to whether a Chair may remain silent, or must raise an objection when the powers of the chair are usurped by another individual. One expert opined that the chair may remain silent during the alleged usurpation or may actively object. The other expert testified that the chair must immediately challenge the alleged usurpation or waive any objection to the proceeding taking place.

Both sides filed minutes taken from their respective meetings and filed lists of officers elected at each faction's respective meeting.

The Treasurer of the Bronx Democratic Party, as of the date of the meeting, was called as a witness by the Heastie faction. The Treasurer testified that he had received a call from someone in the Rivera faction to come to the Theater on September 28, 2008. Upon his arrival, the Treasurer was met by an individual who had previously worked for the First Vice-Chair and who directed him to an upstairs office in the Theater. He was given several invoices to review and issued several checks; however, he testified that he did not "attend" the organizational meeting being held downstairs. Although listed as a "Petitioner," the Treasurer stated that he had not pre-authorized the bringing of the Rivera petition, Index # 260452/08 and had no current objection to it.

Other witnesses testified regarding the late arrival of County Committee members.

One County Committee member testified that he arrived at approximately 6:45 P.M. He proceeded through the magnetometer and sign-in table before receiving his yellow wrist band, and did not enter the main level of the Theater until approximately 7:50 P.M.

Another County Committee member testified that she was outside the Theater for the purpose of coordinating the arrival of several busloads of people, including [*7]County Committee members and guests. Due to the long line of people waiting to enter the Theater, some of those arriving by bus chose to remain seated on the bus until the line diminished. At approximately 6:45 P.M., this witness dispatched an "emergency bus." A group of County Committee members needed transportation from a location approximately ten to fifteen minutes away from the Theater since their originally scheduled bus did not arrive.

The foregoing is a summary of the facts giving rise to the instant proceedings.

Turning now to the substantive and procedural issues presented,[FN2] the Court will first consider the jurisdictional and procedural issues raised by Rivera.

Rivera initially contends that respondent Richard Izquierdo-Arroyo, (Izquierdo-Arroyo), a necessary party, was not properly served with the instant order to show cause and verified petition. As a consequence thereof, the proceeding must be dismissed pursuant to CPLR 3211(a) (8) and (10).

The following facts regarding the attempted service on Izquierdo-Arroyo were stipulated to by the parties.

Izquierdo-Arroyo was elected Sergeant-at-Arms at the Baez meeting held on September 28, 2008. On September 30, 2008, the Rivera slate filed a certificate with the New York State Board of Elections pursuant to Election Law §2-112 which listed the names and addresses of the newly-elected officers. Petitioners' Exhibit 1. The address set forth for Izquierdo-Arroyo on this certificate was 694 East 155th Street, Bronx, New York 10455. Rivera concedes that this was an erroneous address and that no such address exists in Bronx County. Petitioners were, therefore, unable to personally serve Izquierdo-Arroyo at this address or affix a copy of the order to show cause and verified petition to the door of the premises. The copy of the order to show cause and verified petition mailed to Izquierdo-Arroyo at this address was returned as undeliverable. Petitioners' Exhibit 2. The instant order to show cause directed that service upon Respondents be made to Respondents "at the address of such individual respondent (as was) set forth in any certificate filed with either (of the) respondent Boards of Elections (Boards) purporting to set forth the name and addresses of the officers elected at the Meeting or other records of said Boards."

Petitioners contend that compliance with the foregoing service provision was all that was required to effectuate service upon Izquierdo-Arroyo. Alternatively, Petitioners argue that the listing of an incorrect address for Izquierdo-Arroyo on the certificate filed pursuant to Election Law §2-112 rendered his election a nullity and he was, therefore, not a necessary party to the action.

Rivera asserts that Izquierdo-Arroyo is a necessary party to this proceeding and that petitioners were required to use due diligence to ascertain his correct address once they learned that the address set forth in the certificate was nonexistent. Rivera notes that Izquierdo-Arroyo's correct address was set forth in his "buff card" filed with the [*8]Bronx County Board of Elections and that petitioners had ready access to such information. Rivera submits that by allowing service at the address set forth in the certificate, which was erroneous, the order to show cause was rendered defective. This defect, it was argued, does not relieve a party from meeting its other statutory obligations.

It is well established that the "method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with." Master v. Pohanka, 43 AD3d 478, 480 (2nd Dept. 2007); Marcoccia v. Garfinkle, 307 AD2d 1010 (2nd Dept. 2003). Here, petitioners fully complied with the terms of the order to show cause regarding the manner of service. Service upon Izquierdo-Arroyo at the address provided to the Board was reasonable and, in fact, was the precise method of service provided for in Respondents' petition (Index No. 260452/08).

Moreover, a party who fails to comply with a statutory notification requirement will be estopped from asserting the defense of defective service. Bank of New York v. MacPherson, 301 AD2d 485, 486 (2nd Dept. 2003). For example, in Toure v. Harrison, 6 AD3d 270 (1st Dept. 2004), the defendant was estopped from contesting the validity of service made at the address provided by the defendant on his driver's license and police accident report. Similarly, in Melton v. Brotman Foot Care Group, 198 AD2d 481 (2nd Dept. 1993), defendants were estopped from claiming that service in a malpractice action was improper where the summonses and complaints were mailed to addresses that defendants provided to the Division of Professional Licensing Services when they were licensed, and did not provide the Division with changes of address as required pursuant to Education Law §6502(5).

Election Law §2-112, provides in relevant part, that [w]ithin three days after their meetings, all state and county committees shall file in the office of the state board of elections a certificate stating the names and post office addresses of such [newly elected] officers."

Petitioners justifiably relied on the accuracy of the information set forth in the certificate which the Respondents were statutorily required to file. As a result, Rivera is estopped from contesting service upon Izquierdo-Arroyo at the address provided in such certificate.

Accordingly, that branch of Rivera's application which seeks dismissal of this proceeding on the ground that petitioners failed to serve a proper party is denied.

Rivera next seeks dismissal of the proceeding on the ground that petitioners failed to file a signed order to show cause with the Clerk of the Court in violation of CPLR 304.

CPLR 304(a) provides that "[a] special proceeding is commenced by filing a petition in accordance with rule twenty-one hundred two of this chapter." CPLR 304 c further provides that "[f]or purposes of this section . . . filing shall mean the delivery of the summons with notice, summons and complaint or petition to the clerk of the court in the county in which the action or special proceeding is brought . . . At the time of such filing, the filed papers shall be date stamped by the clerk of the court who shall file them and maintain a record of the date of the filing and who shall return forthwith a date stamped copy, together with an index number, to the filing party." [*9]

Prior to 2004, CPLR 304 provided that a special proceeding was commenced by the filing of a petition together with a notice of petition or order to show cause. This section was amended in 2004 to provide that a special proceeding is commenced by the filing of a petition alone. See Vincent C. Alexander, McKinney's Supplementary Practice Commentaries, Book 7B, CPLR 304, p. 152. Based on this amendment, Petitioners were not required to file a signed order to show cause at the time they filed the verified petition. New York Central Mutual Fire Insurance Company v. Gordon, 46 AD3d 1296 (3rd Dept. 2007).

The following cases cited by Rivera, Matter of Kurtzberg v. Mastroianni, 262 AD2d 485 (2nd Dept. 1999) and Carnese v. Ferraro, 218 AD2d 770 (2nd Dept. 1995), are not controlling as they involve the interpretation of CPLR section 304 prior to the 2004 amendment. Therefore, Rivera's argument that the petition is jurisdictionally defective because petitioners failed to timely file a signed order to show cause, in contravention of CPLR 304, is without merit.

The instant proceeding was properly commenced by the filing of the verified petition, in a timely manner, and was date stamped by the Bronx County Clerk's Office as having been received on October 6, 2008.

Accordingly, that branch of Rivera's application which seeks dismissal of the proceeding for failure to comply with CPLR 304 is denied.

Rivera further seeks dismissal of this proceeding on the ground that the petition was not properly verified. The petition was brought in the name of eight individuals, to wit: Jeffrey Dinowitz, Heastie, Aurelia Greene, Michael Benedetto, Annabel Palma, Hector Ramirez, Randi Martos and Marricka Scott-McFadden; however, it was verified by only one, Heastie. Rivera contends that the petition is invalid because Heastie's verification fails to state that the parties are united in interest.

CPLR 3020(d) provides that "[t]he verification of a pleading shall be made by the affidavit of the party, or if two or more parties united in interest are pleading together, by at least one of them who is acquainted with the facts."

There is no explicit requirement that the verification of a pleading by a single party, in a multi-party case, specifically allege that such party is "united in interest" with the other parties. The phrase "united in interest" refers to the identity of legal rights and interests of the parties. Maniscalco v. Power, 4 AD2d 479 (1st Dept. 1957), aff'd 3 NY2d 918 (1957). See also Seda v. Richards, 89 AD2d 952 (2nd Dept. 1982), aff'd 57 NY2d 737 (1982). Moreover, the Court of Appeals in Lansner v. Board of Elections, 72 NY2d 929 (1988), held that where candidates brought a special proceeding to validate their designation as county committee members by way of a petition verified by only one, same was properly verified since the petitioners were "united in interest."

In the instant matter, six of the petitioners, Heastie, Jeffrey Dinowitz, Aurelia Greene, Michael Benedetto, Annabel Palma and Hector Ramirez, are individuals who were elected as party officers on September 28, 2008 at the Heastie meeting. Petitioner Randi Martos is a Democratic District Leader from the 81st Assembly District, and petitioner Marricka Scott-McFadden is a Committee member from the 81st Assembly District. Both Ms. Martos and Ms. McFadden filed objections with the Boards challenging both the minutes of the Baez meeting, Petitioners' Exhibit 5, and the [*10]2008-2010 party rules adopted thereat, Petitioners' Exhibit 6.

The Court finds that these eight petitioners are "united in interest" pursuant to CPLR 3020(d). Each of the petitioners has the same legal interest in that each seeks a declaration that the Baez meeting was invalid and that the elections held and rules adopted at such meeting are null and void. The petition was properly verified by Heastie who was clearly acquainted with the facts of the case as required pursuant to CPLR 3020(d).

Rivera's reliance on Lepkowski v. State, 302 AD2d 765 (3rd Dept. 2003), aff'd 1 NY3d 201 (2003) is misplaced. In Lepkowski, former and current state employees brought an action against the state seeking overtime compensation pursuant to the Fair Labor Standards Act. One individual claimant verified the claim on behalf of three hundred seventy-seven claimants. The Court of Appeals upheld the dismissal of the action on the ground that the claimants failed to comply with the pleading and verification requirements of Court of Claims Act §11(b).

The instant case does not involve a claim against the state and the strict pleading requirements of Court of Claims Act §11(b) are not at issue. Thus, the reasoning of Lepkowski is inapplicable to the facts herein.

Accordingly, that branch of Rivera's application seeking dismissal of the proceeding for failure to properly verify the petition is denied.

Rivera further argues that the petition is fatally defective because it fails to name the Bronx County Board of Elections as a Respondent. Rivera maintains that the Bronx County Board of Elections is a necessary party pursuant to Election Law §2-112 as said section requires that County Committees file a certificate setting forth the names and addresses of party officers with their county board of elections. This argument lacks merit. Election Law §3-200(1) provides that "[t]here shall be a board of elections for each county of the state and in the city of New York for the five counties thereof." Thus, while there may be local offices for the Board of Elections in each of the five boroughs, there is only one Board of Elections for the City of New York, and it is located at 32 Broadway in Manhattan. Petitioners' certificate was properly filed therewith, Petitioners' Exhibit 8, and petitioners were not required to either file with or name the Bronx County Board of Elections as a party to this action.

Accordingly, that branch of Rivera's application that seeks dismissal of the proceeding for failure to name the Bronx County Board of Elections as a party is denied.

Respondent Rivera asserts that Petitioners' failure to comply with the provisions of Election Law §1-106 relating to the filing of papers should render the elections held at the Heastie meeting null and void. On September 29, 2008, Petitioners filed a certificate, pursuant to Election Law §2-112, listing the names and addresses of the officers elected at the Heastie meeting, with the New York City Board of Elections. That certificate was time-stamped as being received on that date at 8:31 A.M. Election Law 1-106(1) provides that "[a]ll papers required to be filed pursuant to the provisions of this chapter, shall, unless otherwise provided, be filed between the hours of nine A.M. and five P.M." Rivera submits that the filing of the certificate with the New York City Board of Elections prior to 9:00 A.M. is in contravention of Election Law §1-106(1) [*11]and is, therefore, a fatal defect which requires the invalidation of the certificate.

Rivera's argument is without merit. In Matter of Cozzolino v. Columbia County Board of Elections, 218 AD2d 921 (3rd Dept. 1995), the Court held that it was permissible to file a certificate of authorization at approximately 8:00 A.M. during the Columbia County Board of Elections summer hours of 8:00 A.M. to 4:00 P.M. While acknowledging that the filing at 8:00 A.M. was a technical violation of Election Law §1-106, the Court noted that in light of the Election Law Reform Act of 1992 (L 1992, ch 79) "we are of the view that such an inflexible rule no longer reflects the Legislature's intent regarding technical requirements of the Election Law." The Court further opined that the reasoning of cases such as Matter of Rutherford v. Jones, 128 AD2d 978 (3rd Dept. 1987) and Matter of Hutchins v. Culver, 104 AD2d 533 (3rd Dept. 1984), which had held that the time limits set forth in Election Law 1-106(1) were mandatory in nature, and that petitions filed by candidates prior to 9:00 A.M. were defective, was no longer valid.

Based on the foregoing, the Court finds that the early filing was insufficient to invalidate the Heastie certificate. Accordingly, that branch of Rivera's application which seeks to invalidate the Heastie certificate is denied.

In support of their position that the First Vice-Chair was within her authority to call the Organizational meeting to order and to preside over same, Rivera relies upon two sequential sections of the Rules of the Bronx Democratic Party: 2-2 Officers of the County Committee. The County Committee shall have the following titled officers each of whom shall be selected at the Organizational Meeting of the County Committee, namely: Chairperson, Secretary, Treasurer, First Vice Chairperson, Vice Chairpersons, not to exceed twenty one (21); and Sergeant-at-Arms.

2-2.1 The Chairperson. The Chairperson shall preside over all meetings of the County Committee, or any subdivision thereof, called for the purpose of nominating a candidate for public office or to fill a vacancy in a party position, and shall discharge all duties imposed upon the Chairperson by law or by these Rules or by resolution of the County Committee. The Chairperson shall continue in office and exercise all of the powers under these Rules until the election of the Chairperson of the County Committee at the next Organizational Meeting. In the absence of the Chairperson, at any duly called meeting of the County Committee, the other officers shall preside and shall act as substitute presiding officer in the order set forth above in section 2-2. (Emphasis supplied.)

Rivera contends that both Heastie's and Greene's refusal to call the meeting to order when requested to do so by the First Vice-Chair constituted their "constructive absence" from the meeting. In reliance upon Rule 2-2.1, supra, Rivera maintains that there was "an absence of the Chairperson" despite Heastie's physical presence on the stage. The First Vice-Chair was, it was argued, acting within her authority when she assumed the chair and commenced the organizational meeting.

Although acknowledging that Heastie and Greene had a superior right to chair the meeting, Rivera maintains that their failure to take any action once the First Vice-Chair called the meeting to order, constituted their acquiescence to her actions and [*12]further constituted a waiver of any objections thereto.

In support of the contention that Heastie was under a duty to call the meeting to order at the request of the First Vice-Chair and that his failure to do so constituted Heastie's constructive absence, Rivera cites two corporate cases decided outside this jurisdiction, Duffy v. Loft, Inc, 151 A. 223 (Del.Ch. 1930); aff'd 152 A. 849 (Del. Sup. Ct. 1930) and ITC Cellular v. Morris, 909 S.W.2d 182 (Ct. of Appeals, Texarkana, 1995).Duff v. Loft, Inc., supra, invo``lved an interpretation of corporate law. The Court held that under the bylaws, the shareholders were entitled to elect a chair, after the corporate president insisted on acting as chair, and refused to put any nominations made from the shareholders to a vote.In ITC Cellular v. Morris, supra, the Court relied on the bylaws of the plaintiff ITC in finding that the "president" of ITC, while entitled to chair the meeting, had no right to "thwart the will of the majority by refusing to allow an election of a new chairperson as provided for in the bylaws of the corporation."In further support of the concept of "constructive absence" argument,

Rivera cites Carter v. O'Hare, 69 Misc 2d 917 (Sup.Ct., Dutchess Co., 1972), Nemoyer v. New York State Board of Elections, 125 Misc 2d 1054 (Sup.Ct., Albany Co., 1984), aff'd 105 AD2d 488 (3rd Dept. 1984), Leirer v. Suffolk Co. Conservative Party, 124 Misc 2d 291 (Sup.Ct. Suffolk Co., 1984), McDonough v. Purcell, 44 Misc 2d 23 (Sup.Ct., Rensselaer Co., 1964), Aurrichio v. Natrella, 304 AD2d 660 (2nd Dept., 2003) and Ryan v. Grimm, 43 Misc 2d 836 (Sup. Ct., Erie Co.,1964), aff'd 22 AD2d 171 (4th Dept.,1964); aff'd as modif, 15 NY2d 921 (1965).

In Carter v. O'Hare, supra, the Court's finding of "constructive absence" referred to the vacancy of a chair as a result of an election deadlock. As a result, the outgoing chair claimed the chair was "constructively absent." The Court concluded that the vice-chairperson, who had been duly elected at the meeting should act as chair until the election issue was resolved. Nemoyer, supra, involved delegates who asked to abstain during a preliminary vote to fill a vacancy at a judicial convention, but later asked to cast a vote in a second round. Accordingly, neither case is persuasive nor dispositive.

Leirer v. Suffolk Co. Conservative Party, supra, did not consider the issue of constructive absence. It involved an outgoing chair's refusal to permit a roll-call vote on a disputed amendment of the party by-laws. The Court noted that the chair's conduct at the initial October 3, 1982 meeting had a "chilling effect which pervaded the consideration of and voting on the second set of amendments...and precipitated the onset of the disintegration of the regularity of the meeting." A second meeting was held on October 14, 1982 without consideration as to the presence of a quorum, and other votes were taken to complete elections and amend the party rules. The Court found that at neither meeting were amendments validly passed and a new meeting was required.

Moreover, Rivera's reliance upon Aurrichio v. Natrella, supra, and McDonough v. Purcell, supra, is misplaced as both cases involved a situation where the chair voluntarily left the meeting. Clearly, such is not the situation here.

In consideration of the doctrine of constructive absence, it should be noted that the County Committee Chair never left the stage of the auditorium throughout the Baez meeting. At no time did the County Committee Chair either verbally or otherwise [*13]relinquish his authority or indicate that he was unable or unwilling to conduct the meeting.

Based on the forgoing, and in consideration of the factors set forth below with respect to the propriety of the Baez meeting, the Court finds Rivera's contention that Heastie was constructively absent to be without merit.

With respect to the propriety of the Baez meeting, there was no credible evidence as to the existence of a quorum prior to the start thereof. The First Vice-Chair's visual perusal of the room as a basis for her conclusion that a quorum was present is insufficient. Credible testimony established that not only was the room dimly lit, but County Committee members and members of the public were seated together. Under those circumstances, the failure to differentiate these individuals from each other by requesting that voting members stand, or those with wristbands raise their arms, for the purpose of determining the existence of a quorum, was not reasonable.

In addition, the First Vice-Chair was required by Rule 2-2.1 to not only determine the constructive absence of the Chair and the Secretary, but the Treasurer as well. Herein, there is no evidence regarding any request made of the Treasurer to start the meeting.

Testimony was elicited regarding how a meeting may be called to order without same being done by the Chair. Rivera's expert, Dr. Schilansky, testified that under parliamentary rules, once a quorum is present, if the Chair refuses or otherwise fails to call the meeting to order, a member may make a motion from the floor to commence the meeting. The motion would have to be seconded and then voted on by the membership. Rivera failed to establish that this procedure was followed prior to the start of the Baez meeting. Although Baez testified that a motion was made from the floor to start the meeting, the making of this motion was not reflected in the minutes of the Baez meeting which were submitted herein. Petitioners' Exhibit 5. The Court notes that the committee member who purportedly made such a motion was not called to testify as a witness.

With respect to Heastie's inaction during the Baez meeting, the parliamentarian experts rendered differing opinions regarding the proper procedure. Heastie's expert, Mr. Cernik, testified that silence and failure to object did not constitute a constructive absence. He opined that the Baez meeting was "really just a lady with a microphone." Since there was no recognized meeting, Heastie was under no obligation to act until he received the credentials report. This expert explained that once the credentialing process was instituted, the report had become a prerequisite to calling the meeting to order. Moreover, the importance of the credentialing and verification became all the more important as a consequence of the commingling of eligible voters and the public in the Theater.

On the contrary, Rivera's expert , Dr. Schilansky, testified that Heastie was required to raise an objection to the assumption of his duties by Baez. Thus, his silence constituted a waiver, according to this witness, thereby precluding his right to object to actions taken at the Baez meeting.

The Court finds the testimony of Mr. Cernik more persuasive and apropos to the circumstances of this case.

While the testimony established that many of the Rivera supporters left the [*14]auditorium after the Baez meeting, it was also established that Heastie addressed those members exiting with the aid of a bullhorn and implored them to stay. He announced the commencement of the organizational meeting and called the meeting to order. Those members who left the auditorium did so with the knowledge that Heastie, the legitimate Chair of the meeting, was going to start the meeting forthwith, and, therefore, voluntarily waived their presence at the legitimate meeting.

Another flaw with respect to the action taken at the Baez meeting was the failure to establish that the Secretary of the County Committee made a determination that any vacancies in the County Committee existed. This determination is required pursuant to Rule 2-3.5 prior to a motion being made to fill purported vacancies. As to the list proffered by the Rivera slate to fill County Committee vacancies (the 399 list), no prior determination was made as to whether the individuals named were qualified. Further, there was no showing that the 2008-2010 rules of the Bronx Democratic Party allegedly adopted at the Baez meeting were provided to County Committee members in advance of the meeting. Advance notice is required by Election Law §2-114(2).

As a result, upon careful consideration of the facts and circumstances outlined above, the Court finds that the Baez meeting conducted on September 28, 2008 was invalid and all documents filed thereafter by the Rivera slate are null and void.

Turning now to the validity of the Heastie meeting, the Court has taken the following additional factors into consideration:

Heastie commenced the organizational meeting only after he received notification from the head of his credentialing process that a quorum was present. This occurred sometime after 8 p.m. Not only is the validity of this action supported by the testimony of the parliamentary expert, but it was a reasonable course of conduct as well. Over six hundred County Committee members arrived at the Theater with a countless number of members of the public, and all individuals were filtered into the Theater via one door. Lines were long, yet County Committee members waited in them for their opportunity to vote on their party's County leadership. The democratic process prevailed and it cannot be said that Heastie's actions in waiting for all who had arrived to be processed was anything other than reasonable.

Heastie also demonstrated an attempt to safeguard the rights of those who were leaving the auditorium by urging them to remain in the Theater as he was about to commence the organizational meeting. He also requested that the County Committee members from three Assembly Districts who were seated in the balcony come to the main floor of the Theater.

In conducting the organizational meeting, Heastie differentiated voting members from non-voting guests by asking voting members to stand and display their yellow wristbands each time an officer was elected.

Heastie had a professional stenographer take down the minutes of the meeting. He followed an appropriate script ensuring that all the party rules were followed.

Following the conclusion of the organizational meeting of the County

Committee, a meeting of the Executive Committee of the Bronx County Democratic Party was held wherein officers were elected. The election results are reflected in Petitioners' Exhibit 8. [*15]

In consideration of the relevant law, rules and procedures, and in review of the facts and circumstances herein presented, the Court finds that the organizational meeting conducted by Heastie as Chair was valid. Heastie's actions are found to be reasonable under the circumstances and were in accordance with the Rules of the Bronx Democratic Party and Robert's Rules of Order,.supra. Heastie acted in a manner to safeguard and not to abridge the voting rights of the County Committee members who came to the Theater to vote.

Accordingly, the Petition brought by Dinowitz, et.al. to declare the Baez meeting and the elections held and rules adopted therein to be invalid, is GRANTED.

The request by Dinowitz, et. al. to declare the Heastie meeting, the elections held and rules adopted therein to be valid, is also GRANTED.

The Petition brought by Rivera et. al. to declare the Baez meeting and elections held and rules adopted therein to be valid and to declare the Heastie meeting and elections held therein to be invalid, and for other related relief, is DENIED and the Petition is DISMISSED.

This constitutes the Decision and JUDGMENT of the Court.

Dated: November 25, 2008____________________

J.S.C. Footnotes

Footnote 1: The edition of Robert's Rules of Order upon which each expert relied was never specified.

Footnote 2:From this point on in this decision, any reference to "Respondent" will be a reference to the Rivera faction, and any reference to "petitioner" will be in reference to the Heastie faction.