Matter of D'Abramo v Schirillo

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Matter of D'Abramo v Schirillo 2013 NY Slip Op 31974(U) August 10, 2013 Supreme Court, Suffolk County Docket Number: 13-19656 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] BON. JOll:-ll SCPRD,,[[ LEO COURT OF TI-lE STATE OF 'FW YORK coux: Y UI· SUFFOU( -------------------------------------------------------------------------X In the \:i:ll{ r of the. ppl icarion of ~ CllARI.ES V;\ ·DEWAl'ER. Petition rs-Objector, -against- THOMAS SCHIRILLO. CHRIS i\l\£N KET.,LbY, VIViAN vtLORlf\-[:I.'1 fER, l.ORI BALDASSARt:. JOI ATI IAN A. COlIF1\. MICTIAEL !\HU.F.R. WA YllE E. fELLR/\'I'H und CONSTANCE KEy.[PERT, ReSI udent-Candidatcs. -and- .TTTOLK COUt\'TY BOARD OF ELl:.CTIONS. A, 1ITA S. K TL Commissioner of the Suffolk County Board of Elections. and WAYl Fl. ROGERS, Commissioner of the , 1I (folk County Board of Elections. togctl cr constituting tl c Suffolk County Board of Elections, Respondents, -------------------------------------------------------------------------x Ior the Petitioners: Kc ineth J. Lauri .. sq. 503 Main. 'lre t Port Jefferson. NY 11777 Attorney lor Respondent: Commis: inner Katz Anthony La Pinta, csq 15 .' rkay Drive, Sui e 200 Hauppauge. 'C\N York 11788 Attorn 'Y for Respondents: Lawrence Silverman. [sq. 350 Veterans Memorial Hw Commack, New Y rk. 11725 J Attorney for Respondent: Commissioner Rogers Garrett Swenson, Jr. Esq. 76 Bay Road Brookhaven, NY I J 7 19 AND I Index Attorney I DhCfSJO ORDERI IRE fE I)' AI3RAMO. MAt'-10EL CORDEIRO and o. 13-19656 [* 2] lhe Court in its dclibcra ions has considered the following papers and held a hearing upon this merion for relict: l. 2. Order to Show Cause, Verified Order to Show Cause. Verified 3. Verified A ffinuation Petition, Petition, Affirmation, Affirmation, & Exhibits Suppl ucntal 8.: :xhibirs Answers , Vc 'ified Return , Petitioner seeks an Order: (I) pursuant ro Sections 16-100. 16-102 and 10-1 I~ ofthe Election Decl'-lring Invalid the petitions the Respondent-Candidate ,1S candidates of The Working l-amilies Party lor the Public Office of Suflolk County Legislator lor Eighth District for the deneral Election OIl the Tenth Jay of Novcm er 2013: and (2) Restraining the Board of Elections fr6m printing and placing the name ofsaid Respondent-Candidates, as such, upon the Official Ballots of such General Hection. L.:I\\. Respondcnr-Candidntcs seck an Order: (J) Dismissing [he above-capti ned Llection 1,(11\' proceeding upon the grounds that both the Order to Shov Cause and Petition ill support hereofare defective c 11 their Iacc us none ol'thc respondent candidates are candidates ofthe \-\ {Irking Families Party for Suffolk County Legislator, Eighth Legislative District and as su.ch said Petition requests relief'tluu may not be granted. or alternatively. if !!f411 t d would be a nullity: and (2)1 Dismissing the above-captioned proceeding us to Michael Miller.upon (he grounds that none otthc ctitiouers huve standing to challenge the designating petition filed on his behalf for the nomination.of the Working Famili "S Party LO be voted 011 at the Primm) Election to be held on September 10,2013. I Respondent Suffolk County Board of Elections Commissioner . files a Verified Pursuant to IJcctioll Law ·16-102 a proceeding regarding the designation public off c must b-::instituted in the Supreme Court b_ an aggrieved candidate Iilcd general and specific objections in accord with lilccrir n Law 6-1 54C:!). Rc urn. ola candidate lor or 11)'a person has I I In the instant matter, the parties stipulated the designating petition. The Petitioner filed by Petitioner D'Abramo and that none Pctitoner D'Abrarno. had no ..tanding. and petitioner Charles Vandewater. there were invalidating petition and thus Petitioner's petitioner. ill' The remaining and is deemed to be and agreed there was no basis for a line-by-line review also stipulated [11m there were 110 specitic objections as were attached to the invalidating petitio . Consequently, it was stipulated he withdrew as a pctiti mer. Also as (I) no general or .pecific objections set l(lIth as part of the at omey stipulate to withd awing Vandewater as a Petitioner, Manuel Cordeiro. IiJed general and specifications of objections obi c 'C[\){, who has standing. However the general and specification or all [* 3] objections f led by Cordeiro. made no reference to Respondents Miller, Fellrath or Kepp rt . thus Petitioner's attorney withdrew any objections as to the designating p' ti tion of each of those candidates. Neither the general nor the specifications of objections references any el ndida c, COVl:r sheet or designating petition regarding the Eighth Legislative District of uflolk County. The Court heard argument [j·cm Petitioncr's , attorney regarding what he chJacterized were flaws in the assigning of certain identification numbers to the cover sheet filed wirlt the challenged designating petition. The Parties placed on the record a sti ulation as to what cern in witncs cs to the tiling of the disputed cover sheet, would have testified to if called. On consent of the parties. the Court at '0 entered into evidence. the Designating and Nominatinc Petition Guidelines and Requirements olthe Board of'El ections OfSllff~lk County. The Parties also stiplilatc~ that the Board 0(' Elections did not send any written cure letter to anyone regarding the co er hee s at question in this proceeding. The basis of the Petitioner's objection is that, prior to the filing of peri iOI~S, the W rkiug Families Party had requested the assignment of certain Suffolk County Ide ntificaiion Numbers to the cover sheets of their petitions. onetheless. at the time the petition in ques ion were tiled. the cover. heets did not contain those pre-assign d identification num ers but instead other numbers were assigned. Petitioners do n t question or allege to the contrary, that the covet h ets contain proper re 'e 'ence: to the publ ic office. residence, volumes, contact person, a s a mer t that th desi 'I1uling petition had the number or in excess of the Dumber of signa ures, or required petition shcc numbers related to each candidate. It was also not alleged that the challenged d: rignating etiiion with cover sheet was not timely filed. Respondents' atton y intcrj oscd a motion to dismiss on the ground that he invalids ing petition addresses onlv the office of" Suffolk Count Leaislator for the Eizhth L gi~lative I is 'ict. 0..;.;......, I As such. Respond .nts' attorney notes that the relief reque: ted is for the Eighth Legislative District only. The parties stipulated that only a portion of the Eighth Legislative District is!in the Town of Brookhaven. The Court notes that a review of the designating petition reveals that all the offices challenged by the invalidating petition and the underlying objections are offices t~ be voted upon wholly in the political subdivision of the TO\Vll of Brookhaven and ar either a T()\~'n public office or a District Court Judge. Moreover. Petitioner Cordiero, rrifies 111 foregoing invalidating petition which rei ales only to the Eighth Legislative Dis rict. as O'lIC. I J -..... I I I The caption of the proceeding states the reliefrequested is directed 0 the Eighth Legislative District only. The body of the invalidating ctition does not request invalidation for 'any other office other than the Eighth Legislative Distri t. Similarly, there is no reference in the body of the invalidating petition to any other office sought to be invalidated. Paragraph 11 of the invalidating petition even states that til rc are 10 signatures required for the .ighth Legi .lative Dis rict d -signarion but does not give 3 a al lor any other public office. The invalidating petition does inc rporate by releren e the obje lions of Cordiero and the work 'be .ts related thereto. The invalidating petition is specifically captioned and states it is directed to the Eighth Legislative District as does til . prayer for reli f. This Court determines that it is that office only. which is he subject of the instant invalidating petition, Allowing the incorporation by reference of specifications [* 4] of objections not related to the named office, would open the door to placing any s ecifications of objectior with any invalidating petition and would allow a petitione , at their whim. to claim an objection is to an office other than that which is really being challenged. To this ourt that is not what pleadings may be posited for. Moreover. specifications f objections are tilt: condition precedent (0 a valid invalidatinu petition and must relate to that invalidating petition, not the other way around. A valid invalidating petition must contain general and specifications of objections that relate to the claims in that invalidatii g petition. This is simply not the case her'. I Thus, since there are no objections or specifications of obj ctions for any candida es for a public office of the Eighth Legislative District, the invalidating petition is hereby dismisse I. In order tu rellect a full record of the proceeding . (be Court proffers its Of inion on the is .ue of the Petition r cover sheet objections. Petitioners' argument as et forth in tile adopted specification of objection, is that the numbering assigned to the cover sheet affixed to the challenged tition was not in compliance with the Suffolk County Board of Elections, Designating an i lominating Petition Guideline and Requirements. The ba: is of the Petitioner's objection here is that, prior to the filing of the subject petitions, the Working Families Party had requ sted from the Board of Electior s that certain Suffolk County Identification Numbers which would reflect a prefix of"St;··. be used to number the cover sheets used to file their petitions. At the time the challenged petitions were tiled. the cover sh ets did 110t contain those numbers and instead \.\ re assigned an identification number with prefix of "vr. There is no dispute or allegation to the contrary, that the I cover sheet contains the proper and sufficient references to: the public office, residence, volumes, required petition sheet numbers, a stat ern nt that the designating petition had the number or in excess of the number of sigr H ures, related to each candidate. Nor is there any assertion that the designating petition with cover shec was not timely tiled. The dispute lies in the recitation of the course of ev nts that took place at the time of the filing submission of the designating petition with cov I' sheet. On this issue, the parties placed on the record. a stipulation as to what certairi witnesses who were present at the BO( rd of Elections counte . when the petition was filed, would hhve testified to, ifcalled.It was stipulated that one Board of Elections Republican representative present, would have testified that upon the f ling of the subject petition and cover sheet. he informed thelf lers that there were 110. uffolk County identification numbers as had previously be' n applied for by someone from the Working Families Partv, on the cover sheet. an I that such identification numbers were needed to be placed on rh filing. 'i'he D..:: rocratic representative would have testified that khe was present at the Board of elections counter along with the Republican representative, whc the designating petitions were filed, but did not recall such a conversation, and that she also did n~t believe it was for her to decide whether the Suffolk County Identification mil ibcrs were needed. l'he Court then, on consent or all parties, entered into evidence the Designating and. ominating Petition Guideline & Requirements of the Board of Elections of Suffolk County. The Parties also stipulated that the Board of Elections did not send any cure 1 tter to anyone regarding th cover sheet in question ill this proceeding. 1 [* 5] The Court notes that the designating petition with cover sheet was duly filed and given all Identification numbe ·S. when an application i. filed pursuant to Rules B( 1) and B(J), those rules mandate that such idenri fication Hun crs HI ear on the petition volume cover sheet and on the li r o.f any candidate. [10\\c\"(:I". according Rule 13(5) if a petition volume is filed without a pre-assigned number, the Board will affix. a number. Ioreovcr. an identification number of W 13-14 was assigned to this , ~ design lin') petition and cover sheet becau e it was filed without a pre-assigned number, The Court notes that there is 110 proof in the record that the I ersons tiling the designating P tiiion and those who previously req uestcd the pre-as ig icd Su ffol k numbers were the same: persons 011I presentati ves Identification Numb r of \11/ I'" -14. Pursuant to the Board of Elections rules reuardirta of the Working Fnm~licsP~rlY. The ~urde~1 ~o provide such proorre$~s upon the..., PFtil~o~:·.( ..:t'C, Hovland Board of 1-,1cctlOns of"IJ1C CIty of New York, 104 A.D.2d 46.); Dtlan v C arulJJ, J I A ..D.2d 6 6). In addition, the Court al 0 notes that he 81ecifications of objecti 11. relate L'O Identification number 13--+ nor l3-14 which were assigned. Therefore the . pccifications of obje tion are in part defective on its face. since there is no designating. petition with identification number W 13-4 attach 'd to rhe movinu papers or addressed therein. The specifications of objection relied upon by Petitioner posit that n SU id· nti pCRriQl1 number to the cover sheet and that the Board of Elections orally requested the filers, to cure cover sheet, regarding identification num crs . Th record .eflccts that there 'as uo to cure the challenged co -er she t, as required by the T esignating and ominating of the Suff lk County Board ofElections. (See § 6215.1 of the New York State Board ofElections Rules and Regulations. and § 6-134 of the Election Law). If the subject cover sheet was deficient. there needed to be a written, not oral. notice 1.0cure. The Court tin Is that in accordance with Suffolk County Board Elections Rule B(5). the assigned i Ienii fication IHUlI ers on the challenged cover sheet are sufficient. As previously noted. any cure pr cedures Q !e absent in this mutter. was assigned defects in the written notice Pc i ion Rules or Though this Court does not r ach a conclusion that the challenged cover sheet and petition contained deficiencies in their assigned numbering, it is nonetheless noted, that even if this court were ro find such deficiencies existed, it would not penalize a candidate set tor h inlthe designating I Clition. due to til assigning of an alternate set of identification number or an err r or mistake by election hoard official in not sending a notice to cure or orallv stati 19 [hat the submission wa: lelective. (: c. Hai lev v. t iaeQra COll;1tv Board of Elections. J 1 - 'fisc. 2d 650: Ccllllr v. Lmkin . 7l Misc. Zd l7, . I urn d, 11 )JY2d 658.) . This Court additionally finds no danger of confusion or fraud in the case before The proc cding is hereby dismissed for the reasons set forth above. Dated: AUIU. l 10. 2013 iJ

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