Matter of Rosenberg v Lindsay

Annotate this Case

Download PDF

Matter of Rosenberg v Lindsay 2013 NY Slip Op 31973(U) August 10, 2013 Supreme Court, Suffolk County Docket Number: 13-19466 Judge: John J. Leo 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] or SLI[)RF:';v1E COURT TIIE STATE OF COCtl iT . OF S d-TOLK EW YORK -------------------------------------------------------------------------:c r In the Marter of the Application }IO\! .. f,OHN J. LEO I and VI:..JCf· .. T F. T:IL /\. RO:.'E.I\BERG LIGUORI DECISION /\]\1) ! OPDER Petitioners-Objector. -and\·1 SCErv11. A\JTIIONY Candidate-Aggrieved. Respondent -Candidatc, -andSUFFOL.K 0 .·T' BOARD 01.: E1... [CT10 S. KATZ. Commi sioncr of the Suffolk S. /\ TfA COLlIlI, Goard of EJections, and W: YNE T. ROGERS, Commissioner of the Suffolk County Board of Election . together constituting the Suffolk County Board of Elec ions. Respondents. -------------.-----------------Auorney for Pcutioners: Mark Murray, Esq. ---- --- --- ----------------- ------------- -- -X Attorney for Respondent: James 1-. Matthews, Esq. ]32 Clyde Sir 'ct. Suite One ] 9l lew York A venue West Sayvillc.! llunrington. Y J 1743 Y 11796 lor Res pendent: A trorncv lor Rest ondent Attorney Anita Katz Anthony \-1. La Pinta, Esq. 35. rka: Ori,·('. Suitt: 200 Commissioner Commissioner Hauppauge. I Y J I vss Wayn Rog rs Garrett W. Swenson. Jr., Esq. 76 Bay Road Brookhaven. ew York 11719 Index No. 13~19466 [* 2] Upon petitioner's motion the COLIn held a hearing and considered abov c captioned Election matter: the followinz Order lO Show Cause. Verified Petition, Affirn ation, & Exhibits Order to Show Cause. Verified Petition, Affirmation. Supplemental AI' irmation Exhibits Atfida -it in Opposition V rificd Answers of each Respondent Commissioner Verified Return of the Suffolk County Board of Elections apers on [he i 1 2 3 4 5 Petitioner .:e ks an Order: (1) pursuant to Sections 16-l 00 16-102 and 16-116 of the EJection Law. Declaring Invalid the petitions the Respondent-Candidate as candidates of The Werking Families Pa 'ty tor the Public Office of uffolk County Legislator for Eighth Dis riel for the G<:n ral Election on the Tenth da. of No vet iber 20 I": and. C~)Restraining the; Board of Elections th~rn printing and placing th name of said Respondent-Candidates. as such upon t e Official Bailors hSllCh General l.lection. Respondent-Candidates seek an Order: (1) Dis nissing the above-cal ioned Election Law proceeding upon the grounds that both the Order to Show Cause and Petition in support thereof arc defective on their face as none of the respondent candidates are candidates of the Working families Party lor "ufl{ Ik County Legislator. Eighth Legislative District and as such said Petition 'egucsts relief that may not b' granted, or alternatively, if grunted would be a nullity; and (2) Dismissinu the abovecaptioned proceeding as to Michael Miller, upon the grounds that none of the petitioners haw standing to challenge the de signaring petition filed on his behalf for the nomination ofthe Working Familic Patty to be V ted on at the Primary Election to be held on , eptember 10, ~O L3. ! Pursuant to Hccrion Law 16-102, a proceeding regarding the designation of f.i candidate 10r public office t ust be in tituted in (he Suprcm . Court by an aggrieved candidate or l}y a person \\ ho has filed objections in a c rei with Election Law 6-154(2). In order for all individual (0 be qualified to file such objections. the must be u voter qualified to vote for the public office identified in the candidate designating petitions. In this case, neither Pe itioner Rosenberg 110r Petitio: neither is quailificd to vote for the office of' Suffolk County District, thus. neither lin standing to ring. this proc eeding. Count\' HOE. 242AD2nd 344: . -1atter ofCicootti 186 AD2d AD~d r Liguori. is a qualifi .d objector since Legislar r of the [i~hth Leuislative (See. MaHer of Gallow v. i)llches~ 979; [",fa r of Sea !an v. Bird, 176 (061). As a candidate for the public office of Suffolk County Legislator in Eighth Legislatix I.': Di.· riel. Petitioner Muscerni is an aggrieved candidat . and a, such has standing Ito institute this action. llowcvcr, Election Law J 6-116 requires that a special proceeding under AI' ide 16 shall be [* 3] heard upon a verified petition. In this instance. there is no verificarion of the invalidating petition by Petitioner MUSCCJ1)i. uch verification is a j urisdictional prercquisi e to com nencing such a proceeding. (Goodman v. Havduk. 45 Y2d 804; t-.:TallerofTcnnerillo v. J30E, 6" NY2d 700, Frisa. v. O'(jrauv . 297 l\D2d 394). The fact that Peti ioncrs Rosenberg and Liguori! did verily the invalidating petition. does not save the proceeding, given that nei her slated that they were united in inicrc t with an' other a party. (CPLR 3020 (d)). Second, au aggrieved candidale and objector are not united in interest since each ha e different legal status and different ~·ighrs. Each is separately identified by EI' ction Law and have separate rights and required processes to follow in rdcr to institute a proceeding under Election Law. An objector need not be aggricv xl to be a ! c itiouer. but a candidat rust be so aggrieved. Finally, in oncert with this Court: determination that neither Ro -e 1 "rg nor Liguori has standing to initiate this proceeding, there is basis to deem Musccmi to be "united in inicrcsr' with a non-party whose 'crification is ofno legd value. Such a determination would allow any person without <til interest to verify an invalidating petition and subsequently permit a non-verif 'lng patty to point to such verification. nb I Peutio rcr attorney's argument that the issue that the disquali ticarion of Petiiioncr Muscemi, as all objector, was not raised. in a timely manner is to no avail. since a motion to dis iss UpOI1 such grounds \\3:' made returnable on that issue and was interposed on the agreed upon rJturn elate ofthe application. Moreover. this matter was served all the la t day P rrnissible by statute; so any time to correct such a veri fication would have been time barred, in any event. Finally, the Petitioner's reliance on 'cda v. Richards. 89 Af)2d C)5"2,i misplaced, a .ihat case refers to petitioners who were all candidates for either public or party office and 011 that basis, that court teemed those petitioners to be "united in interest". The facts of, tela. arc distinguished from the instant proceeding. where tl e petition ers are two objectors and a candidate- aggrieved. Therefore, {he invalidating petition is dismis eli for failure to include proper verification I In order to reflect a Cull record, the Court no xturns to the is uc of the Petitioner's cover sheet objections. i Thouzh the Objectors have no srandinu in this matter, Petitioner dusccmeci has adopted their objections as his own, providing fair and adequate notice of what is objected to in [he challenged designating petition. The Court held a hearing and a conducted a line- by-line review of the challenged designating petition. After the line-b -line I' view was completed, Petitioner Musccmi, through his attorney. conceded that the challenge! designating petiti n contained a sufficient number or valid siunatures. However. as set forth in the specific objections adopted by Musccmi. Petitioner maintained his arguments regarding alleged deficiencies in the cover sheet submitted with the dcsicna ir g petition. ~ . I 1 The crux of Petitioner' s argument as set forth 11'1 the ado] ted specification ofobjection. is that the numbering assigned to the cover sheet affixed to the challenged petition was not in compliance with the Suffolk County ~ Board ofElections, Desiunatinz ~ and Norninarinz _ Petition 1Guidelines and ~ Requi remcnts. The basis of the P ctitioncrs objection here is that, prior to the filing: of the subject petitions, the Working Families Party had requested from the Board ofElections thai'certain Suffolk [* 4] i ountv I lenti fication . .umb srs which would reflect a r refix of "S l", be u .ed to number the cover . , sheets used 10 file their petitions. At the time lht: challenged I etition were filed. the cover sheets did n c main those numb '[So and instead were assigned an identification number with prefix of ··W'·. There is 110 dispute or allegation [0 he contrary, 1at the COY r slice contai ns the proper and .ulficicnt references to: the public office, residence, volumes, required petition slicer numbers. a state ment that the designating petition had the number or in exce s of the numb ir of signatures, related to each candidate. Nor is there 'Illy assertionthat the designating petition wirhcover sheet was llOl timely f led. The dispute lies i.nthe recitation of the course of events that wok place at the rime ofthe filing submission ofthe designating p tition with cover sheet. On this issue. t1ic parties pla .ed on the f0COfCL a stipulation as 10 what certain witne: ses who were pres nt at the Board of Elections counter when th petition wa filed, would have testified 10, if called. It was stipulated that one Board fEl ciions Republican representative present, would have testified that upon the filing of the subject petition and cover sheet. he informed the filers that there were 110 Suffolk Count_ idcn i fica ion num er a - h: d previously been applied for by someone from {he Working Families Party. on the cover sheet. and til t such identification numbers were needed to bb placed on the filing. The Democratic representative would have testified thai she was present flt the Board of elections counter along with rhe Republican representative, when the dcsigna ins petitions were filed. but did not recall such a conversation. 'U1d that she also did not believe it was for bel' to decide \· hcther the Suffolk County Idenufication numbers were needed. The Court then, on consent of all v parties. entered into evidence the Designa ing and Nominating Petition Guideline &: Requirements of the Board of Elections of Suffolk County. The Parties also stipulated that the Board of Elections did nor send any cure letter to an lone regarding the cover sl et in question in this pr ceeding. ¢ I The COLIrtnotes that the designating petition with cover sheet was dul f Ie I and gi vcn an Identification Number ofW1.3-16. Pu suant to the Board of Elections rule: regardii g Identification numbers, when an application is filed pursuan to Rules 8( I) and ).lhosc rules mandate that such identification numbers appear on the petition volume cover sheet and 011 the list f any candidate. However, according Rule B(5) if a petition volume is filed without a pre-assigned number. the Board will affix a number. Moreover, an identification number of W 13-) 6 was assigned to this Jesignating pcritit n and cover sheetbccau e it was filed without a PI' -assigned number. The Court notes that there is no proof in the record that the persons filing the designating petition and those who previously requested the pre-assig 1 d Suffolk.numbers were he same persons or representatives of the Working Families Party. The burden to provide such proof rests upon the Peritionc . ( Sec, Bovland d30ard of Elections orthe Citv of New York, 104 A.D._d 4 3; Dilan V C<l1i'lllli-7 i\.D.2d Be 636). iince the line-by-line bjection was decided the only objection relied upon by P titioi er Muscerni is with regard to the Gover sheer. only. The specification' of objection aver that no SU numb r was assigned and that the Board of Election requested the filers, to cure defects in the cover shed, regarding identification numbers ' The record is clear that there was no written. notice to cure the challenged cover sheet as required by the Designating and Nominating Petiti~n Rules of the Suffolk County Hoard of Elections, (See ~ 62'15.1 ofthe cv York State Board of Elections Rules <wei Regulations. and § 6-134 of the Election Law). If the ubjcct cover sheet was !dcf}cient. there [* 5] needed to be a written, not oral. notice 10 cure. The Court finds that in accordance with Suffolk COlinLY Board of Elections Rule B(5) the assigned identification numbers on the c iallensed cover sheet are sufficient. As previously noted. any cure procedures are a sent in thi . mr tt cr. Finally. though this Court does not reach a conclusion that the challenged cover sltet and petition contained deficiencies in their assigned numbering, it is noted parenthetically, that ven if this court were to find such deficiencies exi ted, it would not penalize a candidate set forth in.the designating petition, due to the assigning of an alternate set of identification numbers or an ern' r 01' mistake by election I oard officials in no! sending a notice to cure or orally stating that (he su n ission was icfcctive. (Sec. Haile\' v. Nia!.'!.ara COli tv Board of EJections. 31 Misc. 2d 650; Cell~r v. Larkin. 71 Misc. 2c1 J 7. affirmed 31 Y2d 658.) This Cowl additionally finds no dancer of confusion or fraud in the case before it,l I'lie proceeding 'is hcr~by dismissed Dated: August ;01' the reasons I set forth above. 10,2013 o

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.