Matter of Gardner v Board of Elections in the City of N.Y.

Annotate this Case

Download PDF

Matter of Gardner v Board of Elections in the City of N.Y. 2013 NY Slip Op 31831(U) August 9, 2013 Supreme Court, New York County Docket Number: 101062/2013 Judge: Paul Wooten 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] SCANNE[1 ON 81912013 HON. PAUL WOOTEN idate for the Democratic Nomination for the office of Council Member for the 8thCouncil rder, pursuant to Sections 16-100,16-102 and 16-116 Id September IO, 2013. Affidavits - Exhibits (Memo) signating the petitioner Sean Gardner (petitioner), as a candidate [* 2] the Board of Elections (the Board), to reject and confirm the Report and dation of SR Sambuco, respectively. Factual and Procedural Background t in dispute. On July 8, 2913, Gardner filed a Democratic Party etition with the Board, as a candidate for election for the public office of Council he 8 hCouncil District, City of New York, in the Democratic Party primary election , September IO,2013. The petition cover sheet filed with the Board lists 16 e petition and indicates a total of 4,655 valid signatures for the public office that 450 valid signatures. Pursuant to the Board Rules for Designating Petitions , the petition cover sheet may indicate the name and address of someone to be ut any issues regarding the petition cover sheet. The Board Rules permit the erson to be an attorney, the candidate or party or his or her designee for t (see CPLR $5 320[a], 2103, 2103[c], and Designating Petition p. 22,23 and 24 [sample cover sheet and sample amended cover sheet]). er sheet listed Kahadijaha Saeed (Ms. Saeed), as the contact person or agent on rdance with Rule D-1 of the Board Rules, within forty-eight hours of filing, the d Gardner s designating petition cover sheet and determined that the cover sheet formation and was therefore deficient. Pursuant to Rule D3 of the Board Rules , f Board Rule D3 states as follows: Notification of a determination o noncompliance shall siting such notice on the day of such determination with an overnight ery, on the next business day after the determination to the candldate the address stated on the petition. If the candidate files with the Board candidate, for the Board to give notification by facsimile transmission, ce by facsimile transmission to the number set forth on the signed ation and/or by overnight delivery, on the day of the determination. Page2of 9 [* 3] on July 9, 2013, the Board sent a non-compliance letter notice (NCN letter) to Ms. Saeed by tates Postal Service (USPS) Guaranteed Overnight Express Mail (Overnight Express ure requirement. In the letter, the Board alleged that petitioner s nating petition cover sheet failed to comply with the New York State Board of Elections ns, 9 NYCRR 5 6215, or [the] Board s Rules for Designating/Opportunity to Ballot adopted on March 27, 2012. The NCN letter indicated that the number of volumes itted from the cover sheet and the petition cover sheet omits statements that the ontains the number of valid signatures required by the Election Law (see Board s itioner s Memorandum of law, exhibit 2). These omissions violate Rule C-2 of the ules (see also 9 NYCRR 5 6215.8). Pursuant to D4 of the Board s Rules, the days from the date of the letter in which to cure the defects by the mended cover sheet. All parties agree that the Board chose the waiver of requirement option on the USPS Overnight Express Mail Delivery, which indicates PS did not require a receipt signature from the address and that the USPS was leave the express mail package at Ms. Saeed s address. All parties also agree that 0, 2013, the USPS went to Ms. Saeed s address and attempted delivery to an recipient for signature. Upon failure to find someone at the address for a signature, id not deliver the letter notification as required, but instead returned the Overnight ost Office where it sat until it was returned to the Board on July , and marked unclaimed (see SR Sambuco s Report, p. 3, 4). cording to the Board Rules D3 and D4, the petitioner had until Friday, July 12, 2013 to Board Rule D4 states as follows: A candidate may, within three (3) business days of the tition does not comply with these Rules, cure the violation of these y be corrected by the filing of an amended cover sheet. Such cure or n must be received by the Board no later than the third business day following such ation. Such cure or correction will be reviewed by the Board to determine if it IS in comDliance with Page 3 of 9 [* 4] amended petition cover sheet. Ms. Saeed only learned of the NCN letter s existence Board after the notice to cure period had expired, and she filed an amended cover on Monday, July 15, 2013, thefirst business day after the cure period had expired. Sometime after the amended cover sheet was filed, the d to invalidate the designating petition. However, according to the record before SR and the Court, the Board did not memorialize any decision to invalidate the r s designating petition pursuant to Board Rule D6.3 n July 24, 2013, petitioner commenced this action by the filing of an Order to Show d Verified Petition seeking to reverse the ruling of the Board and to validate his ic Party designating petition seeking to designate the petitioner as a candidate for unci1 Member for the 8 hCouncil District, City of New York in mocratic Party primary election to be held on September 10, 2013, and to order the of the petitioner upon the official ballots for such Primary a Report and Recommendation (the Report) dated August 2, 2013, SR Sambuco ded that the Court deny the petitioner s Verified Petition to validate the petitioner s petition (see SR Sambuco Report). On August 7, 2013, the petitioner moved by urt to reject the Referee s Report, and the Board moved to Transcript dated August 7, 2013). ard Rule D6 states as follows: Upon expiration of the (3) business days set forth in Rule D4, mmittee established pursuant to Rule 02, shall review the filed ines that an attempt to cure a defect does not comply with these Rules notify the candidate or candidates named on the petitionkover sheet therefore. The Board shall give written notice of such determination I not appear on the ballot by depositing such notice on the day of such ery service, for overnight delivery, 9n the next business day after the tact person, if so designated, at the address stated on the petition, eet, as applicable. Page4of 9 [* 5] Petitioner proffers that his Verified Petition designating him as candidate should not be n substantive grounds, petitioner asserts that the original designating petition cover in its proper legal form and in substantial compliance with the Board Rules. He that all sixteen volumes were listed on the cover sheet, and that omitting a statement etition contains sixteen volumes and failing to include the statement that the petition e number of valid signatures required by the Election Law is de minimis and in mpliance with the Board s cover sheet rules as required by 9 NYCRR $j 6215.6. procedural grounds, petitioner contends that due to an error and oversight by the etitioner did not receive actual timely notice from the Board of the cover sheet was not given an opportunity to cure same. Accordingly, petitioner asserts that the er sheet filed on July 15, 2013 should have been ruled to have been in substantial / ce with the Election Law and Rules since it presented no danger of fraud or confusion (see Petitioner s Memorandum in Support, p. 7). Board asserts that SR Sambuco was correct in recommending that the petition to enied because the act of depositing the NCN letter with the USPS completed its otify petitioner of the determination of noncompliance under both 9 NYCRR $j Board of Elections rules for Designating/ Opportunity to Ballot Petitions. As such, ontends that since petitioner failed to timely file an amended cover sheet, the Discussion feree s authority is derived from the order of reference (see CPLR 431 1; Marshall v 3 AD2d 979 [2d Dept 19981; Lipton v Lipton, 128 Misc2d 528, 531, affd 119 AD2d pt 19861; see also feder Corp. v Bozkurtian, 48 AD2d 701 [2d Dept 19851). It is hat the report of a Special Referee shall be confirmed whenever the findings rein are supported by the record and the Special Referee has clearly defined the Page5of 9 [* 6] olved matters of credibility (Steingad v Hoffman, 80 AD3d 444, 445 [Ist Dept Panadis, 238 AD2d 135, 135-136 [ I st Dept 19971; see also Melnitzky v 1st Dept 20061; Kaplan v Einy, 209 AD2d 248 [ 1st Dept 19941; Namer v 15th St. Realty C o p ,108 AD2d 705 [ 1st Dept 19851 Iv dismissed sub nom ant Andrea, 72 NY2d 954 [1988]). The Special Referee is considered to be in the on to determine the issues presented (Nager v Panadis, 238 AD2d at 136). Court finds that SR Sambuco clearly defined the issues and resolved matters of hearing without a transcript. The Court partially confirms SR Sambuco s Report, Court accepts the facts as stated in the Report, but rejects SR Sambuco s s of law. Specifically, this Court rejects SR Sambuco s finding that the Board s initial 3 determination that the petition cover sheet was defective pursuant to 9 NYCRR 3 he Board Rules for Designating Petitions was proper. The Court finds that the ing non-compliance is moot due to the fact that the petitioner s amended cover ubstantial compliance with the Board s Rules, and it corrected any possible ce error (see Election Law 5 6-134[10] [ The provisions of this section shall be strued, not inconsistent with substantial compliance thereto ]; 9 NYCRR 5 xcept as specifically set forth herein, these rules shall be liberally construed and ts shall be disregarded where there has been substantial compliance and where ction is not required for the prevention of fraud ]). The amended cover sheet, the correct information from the original cover sheets, now also indicates the olumes in the petition on the cover sheet as well as indicates that the petition number of valid signatures required by the Election Law. Such new information is and will not lead to confusion and fraud (see Matter of Siems v Lite, 307 AD2d rt finds that petitioner s designating petition is valid because ( I ) the Page6of 9 [* 7] as not notified of, and given the opportunity to timely cure, the purported defective cover sheet, as required, by the Board Rules (see Matter of Pearse v New York City Bd. of ns, 10 AD3d 461 [2d Dept 20041; Matter of Krance v Chiaramonte, 87 AD3d 669 [2d I]);Petitioner s amended cover sheet, which was filed one business day after the (2) r notice deadline, was properly filed in substantial compliance with the requirements oIf ction Law and New York State Board of Elections Regulations, and was not confusing, t, nor did it have a prejudicial effect on the Board (see Matter of Krance v / onfe, 87 AD3d at 669; Matter of Siems v Lite, 307 AD2d at 1016; Matter of Most v 297 AD2d 356, 357 [2d Dept 20021; see also Election Law § 6-134[10] and 9 NYCRR . Moreover, the Court is constrained not to ignore the possible drastic deprivation of ner s Federal Constitutional guarantee of the right to vote exercised by seeking ublic office of the City Council for the 81h Council District and the drastic isement of the right to vote of the 4,655 petition signers who are exercising their by signing a Democratic Party designating petition and participating in the political rocess to designate the petitioner candidate for public office. Normally, service by mail is deemed complete pursuant to CPLR 2103 when, as here, a tamped and addressed letter is delivered to the custody of the United States Post see St. Clare s Hosp. v Allcity Ins. Co., 201 AD2d 718, 719 [2d Deptl9941 ). CPLR provides, in relevant part: Service by overnight delivery service shall be complete upon he paper enclosed in a properly addressed wrapper into the custody of the overnight ice for overnight delivery, prior to the latest time designated by the overnight Nice for overnight delivery (CPLR 2103[b][6] [emphasis added]). Although CPLR ) applies to service on attorneys, this section is made applicable to service on parties pro se (see CPLR 2103[b][2], [c]; f[l]). A properly completed and duly executed Page7of 9 [* 8] y mail raises a presumption that a proper mailing, delivery and I v Pfeffer, 94 NY2d 118, 122 [1999]; Northern v Hernandez, 17 86 [ 1st Dept 20051; Flushing Nafl. Bank v Rich-Haven Motor Sales, 123 AD2d 663 861). A party s merely conclusory denial of receipt, which is not substantiated by cts, is insufficient to rebut the presumption that delivery and receipt occurred (see ffer,94 NY2d at 122; Northern v Hernandez, 17 AD3d at 286). The petitioner Ute that the Board enclosed the NCN letter in a properly enclosed USPS xpress Mail package and deposited it with the USPS waiving the signature receipt resumption of delivery and thus, service. However, petitioner ed undisputed probative facts sufficient to rebut the presumption of delivery SPS did not deliver the letter and it was returned to the Board on July 29, 2013 in of the Board s direction to leave the letter at Ms. Saeed s address. Accordingly, not receive the NCN letter, and did not receive actual notice of the cover sheet s ithin the cure p e r i ~ d . ~ d upon the foregoing, petitioner s oral application to reject the Report and co, dated August 2, 2013 is grandd. As such, respondents ion to confirm the aforementioned Report is denied. RED that petitioner s oral application to reject the Report and Recommendation of e Phyllis Sambuco, dated August 2, 2013, is granted; and it is further, RED that respondent s oral motion to confirm the Report and Recommendation of uco, dated August 2, 2013, is denied; and it is further, At the oral argument on August 7, 2013, the Board made reference to the possibility that have left a notice of an Overnight Express Mail package at Ms. Saeed s address on July ever, SR Sambuco s Report is silent to any reference to this alleged notice, and the Board ly raise or produce any witness testimony from the USPS about such notice. Page8of 9 [* 9] t petitioner, Sean Gardner's, application to validate his petition didate for election for the public office of Council Member for the gth w York, in the Democratic Party prima9 election to be held on nted, without costs and disbursements; and it is further, spondent Board of Elections in the City of New York shall print and Gardner as a candidate for election for the public office he 8'h Council District, City of New York, in the Democratic Party primary ember IO,2013, upon the official ballots for September IO,2013, Clerk of the Court is dire Decision and Or DISPOSITION ppropriate: 0 NON-FINAL DISPOSITION DO NOT POST COUNTY CLERKS OFFICE NEW YORK / Page9of 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.