Poretsky v Browne

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Poretsky v Browne 2011 NY Slip Op 32260(U) August 8, 2011 Sup Ct, Nassau County Docket Number: 010986-11 Judge: Timothy S. Driscoll Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court --------------------------------------------------------- 1l MIRIAM PORETSKY, TRIAL/IAS PART: 20 NASSAU COUNTY Petitioner- Objector, -and- JOSEPH K. SCANELL, Inde1l No: 010986- 11 . Candidate-Aggrieved Motion Seq. No: 1 Submission Date: 8/8111 -against- CHRSTIAN BROWNE Respondent- Candidate, -and- WILLIA T. BIAONTE and LOUIS G. SA VIETTI Commissioners constituting Nassau County Board of Elections, Respondents, For an Order Pursuant to Sections 102 and 16- 116 16- 100, 16- of the Election Law, Declaring Invalid Designating Petition Purportng to Designated the Respondent(s)- Candidate(s) a candidate of the as Independence Part for Public Office of County Legislator, 5 Legislative District, in the Independence Part Primary Election to be held on the 13 day of September 2011, and to Restrain the said Board of Elections from Printing and Placing the Names of said Candidate(s) upon the Official Ballots of such Primary Election. [* 2] Presently before the Cour is the Order to Show Cause filed by PetitipnerObjector Miriam Poretsky and Candidate-Aggreved Joseph K. Scanell. The Petitio seeks an order declarg insufcient, defective , invalid, null and void the purorted design tig petition filed by Respondent Chrstian Browne as candidate for the public offce of County Ilegislator, 5th Legislative Distrct, in the County of Nassau, in the Independence Par Priljar Election on September 13 2011 and in the General Election on November 8 , 2011. Th Cour has before it the Order to Show Cause and the accompanyig emibits , which were fied n July 26 , 2011 and signed by the Cour on July 27 2011 , and the Verified Answer and CrossP~tition filed on August 1 , 2011 , and has heard the arguents of counsel. On the consent of the paries , the Cour issued an order referring anx " line- by- line determnation to a Special Referee for the designated referee to hear and determe , although the paries have jointly agreed that the reference now be a " hear and report" by;te Special Referee. Proceedings were held before Special Referees Marston Gibson and Thom s Dana, and ths Cour retaned its authority to determe all legal issues in the petition. On the consent of the paries , the Cour held a hearg before ths C ur on August 4 2011 on the question whether the process by which the signatues was ob ed violated Election Law 132. More specifically, the central issue at the hearng was whethbr the subscribing witnesses to the petition obtaed the signatues in a maner that ensured that the signatories affirmed the trth of the matter to which they subscribed their names. The Cour heard testimony from five witnesses who signed the petition at issue , and from Jeffrey Farell , who notazed some 30 signatues. The Cour credits Farel s testimony in its entirety. Of paricular relevance to the instat dispute , Farell testified that 30 signatues , (b) he inonned all signatories that he was obtag signatuI(a)inhe obtained somea his capacity as nota, (c) he asked each signatory to (1) confinn the signatory s identity, (1)sconf the signatory s address , (3) confnn that the signatory was a member of the Ind pendence Par, and (4) confinn that everyg that the signatory signed was trth. He fuer testified that he tyically raises his own right hand as he asked these questions of the signatbries. None of the five signatories who testified remembered the process bout which Farell testified , although one signatory did recall that Farell identified hiself as la nota. Ths apparent inconsistency notwthstading, the Cour credits Farell' s testimoijy based on his appearance , demeanor, and the maner in which he answered the questions/posed to hi by both petitioner s counsel and the Cour. Election Law nota public , the trth 132(3) governs the process by which signatories ar of their statements in election petitions. That statut to afmn , to a has been the subject of interpretation in recent cour decisions , includig Imre v. Johnson 872lf. S.2d 691 (Sup. Ct. 2008 , afd 863 N. Y.S.2d 473 (2d Dept. 2008)), and Liebler v. Friedman 63 N. 2d 719 (2d Dept. 2008). In Liebler the signatories were not asked to " swear " but the signtories afmned the trth of the matter to which they subscribed their names. The Second qeparent held that ths process substatially complied with Election Law 132(3). In Imre ithe nota did not [* 3] y of the signatories remember identifyng hiself as such, and did not obta a statement from as to the trth of the matter to which they subscribed thei names. The tral icour held that process did not comply with Election Law ~ 6- 132(3), and the decision was upheld by the Second Deparent. Here , the testiony of Mr. Farell demonstrated that the process of qbtaning signatues was relatively infonnal , but it did comply with Election Law ~ 6- 132(3). 'Jere are two critical facts that are central to the Cour' s anysis. First , Mr. Farell testified credibly that he identified himself as a nota to all signatories. Second, he testified that, afr co ing the identity, address , and par afliation of each signatory, he asked whether the signat ry confed that everyg the signatory signed was trthl. Ths process appears similar!to the process approved in Liebler. It appears to comport to CPLR ~ 2309(b), in at the process was calculated to awaken the conscience and impress the mind of the person inl accordance with his religious or ethcal beliefs. fuer Nor has the petitioner demonstrated tht the signatories did not und rstad that the oath referred to the matter to which each signatory subscribed his or her name , ir violation of the principles espoused in Kutner v. Nassau, 65 A. D.3d 641(2d Dept. 2009). ther, Mr. Farell' askig the signatories whether everyg the signatory signed was trth ppears to comport with Kutner. It is tre that the process Mr. Farell employed could have be n more fusome , and indeed it appears tht the process in Kutner was at least a bit more complete than that employed here. Neverteless , the process employed here appears to satisfy Election IJw ~ 6- 132 , in that each signatory was specifically asked whether he or she swore to the trth o the document upon which the signatory had signed his or her name , and ths question was aske4 imediately afer the signatory signed his or her name. Accordingly, that basis for the relief cited in the petition is denied. The Special Referee made two sets of determations that have been: challenged by the Respondent. First, the Respondent asserts that the Referee erroneously det~nnined that four (4) signatues were not sufciently similar to the buf cards on fie at the Boar of Elections. Those signatues appear at the following places in the nomiatig petitions at issu Volume Volume Volume Volume 1 , page 3 , line 3 1 , page 7 , line 7 2 , page 3 , line 4 2 , page 4 , line 6 The record demonstrates , and the pares agree , tht the Special Ref ee compared the ths Cour buff cards on file to the signatues in the petitions. On the request of the pates , conducted the same inqui, and arves at the same conclusion. The four (4) signatues at issue are not suffciently similar, and the Referee s observations regarding the dis$imi1arties , which were placed on the record before him on August 5 , 2011 , are shared by the (Cour. [* 4] Second , the Respondent asks ths Cour to validate the signatues th t were otherwse held invalid by the Special Referee on Volume 1 , page 6, on the grounds th t the Nota Public failed to date his own signatue. Ruling on a prior iteration of the Election , the Cour of Appeals held in v. Sortino Chiavaroli 42 N. 2d 982 (1977) that the lowericours properly determed that the nota' s failure to date his authentication was fata to the validity of the undated petitions , and that the defect was not curable by afdavits of the nqta filed in the cour proceeding. Rather, the afdavits should have been filed with the Board o Elections on or before the last day for filing a designating petition. The Second Depare t relied on Sortino Burgess v. D 'Apice, to invalidate petitions filed under the curent iteration f the Election Law in which the nota failed to af)( his notar stap to the petition at issue. v. D 'Apice J3urgess 112 A.D. 2d 1058 (2d Dept. 1985). In light of ths controlling authority, anq there being no controlling authority to the contrar, the Cour concurs with the Special Referee , and determines that the signatues on Volume 1 , page 6 are not to be considered in the detefmnation of whether there are sufficient signatues in the nominating petitions at issue. Coupled with the rulings of the Special Referee that have not been qhallenged before ths Cour, and the rulings of the Board of Elections , the Cour' s ruing results in 69 signtues petition is granted. valid , with 76 needed to quaify for the par nomination for the offce at is being ue. Accordingly, the All matters not decided herein are hereby denied. This constitutes the Decision and Order of the Cour. DATED: Mineola, NY August 8, 2011 c. HON. TIMOTHY S. dRI TERF:D AUG 1 0 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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