Matter of McMillan v Commissioners of Elections of the City of NY

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Matter of McMillan v Commissioners of Elections of the City of NY 2013 NY Slip Op 32249(U) September 23, 2013 Sup Ct, New York County Docket Number: 101243/13 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 912512013 ME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART 7 HON. PAUL WOOTEN Justice Petitioners, 101243113 INDEX NO. 001 MOTION SEQ. NO. NEW YORK, BOARD OF ELECT10 ITY OF NEW YORK, SEP 25 2013 CLERK'SOFFI E PAPERS NUMBERED I I I I I I ring Affidavits - Exhibits (Memo) avits - Exhibits (Memo) ion Sequences 001 and 002 are hereby consolidated for purposes of disposition. es Earl McMillan, Ill a/k/a Jimmy McMillan (petitioner), brought this proceeding Election Law $j16102(1), to validate his independent nominating petition from the amn High Party as a candidate for the public office of Mayor of the City of New York, nce 001). Also before s a motion by Commissioners of Elections of the City of New York and the Board of in the City of New York (Board) (collectively, respondents) to dismiss the proceeding, o CPLR 321 1(a)(2), for lack of subject matter jurisdiction (motion sequence 002). BACKGROUND AND FACTS n August 20, 2013, petitioner filed an independent nominating petition from the Rent is ity of New York, for the Page 1 of 10 [* 2] I Election to be held on November 5, 2013. The independent party nominating petition et indicated that the petition contained fifteen volumes, with volume numbers: , NY1301486, NY1301487, NY1301488, NY 1301489, NY1301490, NY1301491, , NY1301493, NY1301298, KG1301549, KG1301550, KG1301551, KG1301565 01566. The cover sheet indicates that the petition contains the number, or in excess ber, of valid signatures required by the Election Law (Order to Show Cause [OSC], The cover sheet also indicates the name, address, and phone number of the as the contact person to correct any cover sheet deficiencies (id.; petitioner s one in / The Board did not receive any General Objections within three days, as required by Rules, or subsequent legal objections to petitioner s independent nominating petition. letter dated August 23, 2013, the Board sent a notice of non-compliance letter (NCN nited States Postal Service (USPS) Guaranteed Overnight Express Mail, to the The NCN Letter stated that the petitioner s independent nominating petition failed to comply with the New York State Board of Elections Regulations, 9 NYCRR 5 6215 of the Board ted on June 3, 2013 because (1) the [clandidate claims [petition] volumes which d ; and (2) [clandidate claims entirety of Volume Identification Number 8 but does not appear on every page (OSC, exhibit 2). The NCN Letter also that [tlhis defect may be cured within (3) business days of the date of this letter by f an amended cover sheet. . . Failure to amend the cover sheet within the three (3) shall be a FATAL DEFECT (id.; see also petitioner s two in evidence). August 26, 2013, the petitioner timely filed an amended independent party ing petition cover sheet. The amended petition cover sheet indicated that the petition is comprised of thirteen volumes, with volume numbers: NY1301485, NY1301486, NY 1301487, NY 1301498, NY1301490, NY1301491, NY1301492, NYI 301493, KG1301550, KG1301565 and KG1301566 (OSC, exhibit 3). The thirteen volumes comprise a Page2of 10 [* 3] ,253 valid signatures for the public office that requires only 3,750 valid signatures mended cover sheet also states under the list of petition identification numbers, that te does not claim [volumes] NY1301298, KG1301549 (id.; petitioner s three in a public hearing on September 3, 2013, the Board invalidated petitioner s ent nominating petition. The Board mailed correspondence to petitioner that same ed September 3, 2013, by first class mail notifying him of their determination. The dence stated that the Board found, pursuant to a meeting of the Commissioners, that / cover sheet was not in substantial compliance with the Board s Rules governing nvalidated it on the grounds that it claims petition volumes on which the candidate ppear (OSC, exhibit 4; Petitioner s four in evidence). eptember 6, 2013, petitioner filed and timely commenced this special proceeding validate his independent nominating petition, pursuant to Election Law $16-102( I ) , day to commence such a proceeding. Petitioner filed the unsigned OSC with the e Court, along with an Affidavit of petitioner in support, which incorporated various nd an attorney s affirmation in support, which referenced and incorporated the same Pursuant to the OSC, the parties appeared before the Court on Monday, September ext business day after the OSC was brought by the petitioner. The respondents dditional time to review petitioner s submissions and such request was granted. as adjourned until September 11, 2013. n September 11, 2013, respondents served in Court a demand for a Bill of Particulars The Court, with the consent and assistance of counsel for both parties counted the ignatures in the nominating petition. All parties agree that the thirteen volumes contain 10,253 Page3of 10 [* 4] / ell as a motion to dismiss the petition, pursuant to CPLR 321 1(a)(2), on the basis that acks subject matter jurisdiction over the proceeding as the petitioner failed to file a tition with his application, as required by Election Law §16-116. The matter was then until September 16, 2013, for petitioner to review respondents motion to dismiss and pers in opposition. On September 13, 2013, petitioner served the Court with his P and his opposition to respondents motion. ubsequently, on September 16, 2013, the Court held a hearing on the record, wherein timony from the petitioner as well as heard oral argument on the matters pending he Court. The following documents were entered into evidence during the hearing: (1) r s independent nominating petition cover sheet, filed on August 20, 2013; (2) the N Letter dated August 23, 2013; (3) petitioner s independent nominating petition ended cover sheet, filed on August 26, 2013; (4) the Board s determination invalidating the amended cover sheet, which was time-stamped NOT VALID CURE on September ) the Board s determination letter, dated September 3, 2013, sent to the petitioner on ate by first class mail, which invalidated the amended cover sheet; (6) Computer d Board Ledger Book (public record); and (7) thirteen volumes of the petitioner s nominat ing petition. DISCUSSION support of their motion to dismiss, respondents allege, inter alia, that the Court lacks atter jurisdiction over the proceeding as the petitioner violated Election Law § 16-116, o filed a verified petition with his application. Respondents also proffer that the ellate Division, First Department s decision in Flacks v Bd. of Elections in City of New York ed, and therefore is not applicable here (109 AD3d 423, 2013 NY Slip Op 05713 [Ist 31, lv denied 2013 NY Slip Op 82589 [2013] [table; text at 2013 WL 4437179, 2013 NY Page4of 10 [* 5] /' 20 13)]). pposition, petitioner maintains that respondents' motion must be denied and his nted on the basis that his affidavit in support of his application, filed on September 6, incorporates exhibits, contains sufficient information to be construed as a verified In addition, petitioner alleges, inter alia, that the amended cover sheet contained a er s error that petitioner transposed a "98" instead of an "89" for volume NY1301489, thirteen volume numbers listed on the amended cover sheet. Petitioner maintains cts here are nearly identical to the facts and issues that the Appellate Division, First t decided on August 14,2013, in Hacks (109 AD3d 423, 2013 NY Slip Op 05713 31, lv denied 2013 N.Y. Slip Op 82589 [Ct App, 20131 [table; text at 2013 WL 9, 2013 NY LEXIS1788 (2013)], supra). Petitioner proffers that he, like the petitioner in a transcription error in listing a volume number in his amended petition cover sheet, yet the ledger kept by the Board of Elections showed the correct signature volumes (see Opposition to Board's Motion to Dismiss). Court, in reviewing the OSC, specifically petitioner's affidavit in support which s and references various exhibits, finds that said papers are sufficient to satisfy the ts of a verified petition (see CPLR 403[d]; Lev v Lader, 115 AD2d 522, 522 [2d Dept cia1 term did not abuse its discretion in construing petitioner's order to show cause panying papers as a petition... [i]n determining the sufficiency of a petition, the court er the affidavits submitted therewith in order to facilitate the swift adjudication ded to be achieved by way of a special proceeding]). etition in a special proceeding "must notify the opponent of the nature of the claim the issues" (see CPLR 3013 ["Statements in a pleading must be sufficiently to give the court and parties notice of the transactions, occurrences. . . intended to be d the material elements of each cause of action or defense"]) Page 5 of 10 [* 6] Petitioner s properly sworn affidavit2 references and incorporates the independent ting petition cover sheet, the August 23, 2013 NCN Letter, the amended cover sheet September 3, 2013 Board notification letter.3 Further, petitioner s affidavit even es the phase that [nlo previous application has been made to this or any other court for f sought herein (OSC, Affidavit in Support). Additionally, the application also includes rney affirmation, which references and incorporates the same four exhibits as petitioner s . The Court finds that the petitioner s affidavit, read in conjunction with the exhibits and y affirmation, which incorporated the same information as contained in the affidavit, s as a verified petition, in satisfaction of CPLR 403, and to the extent that the affidavit t bear the title of petition, it does not violate any substantial right of the respondents and fect may be disregarded as a mere irregularity (see CPLR §§ 2001, 103[c]). Moreover, C and papers attached thereto give respondents adequate notice of the claim and relief ed (see Lev, 115 AD2d at 522 [ When read together, the petitioner s order to show nd the moving papers in support thereof notify [respondents] with sufficient particularity transactions petitioner intends to prove, as well as the elements of his claim, as required 3013 ];see also Matter of Guarneri v Town of Oyster Bay, 224 AD2d 695 [2d Dept Respondent not prejudiced by court designating petitioner s order to show cause and panied documents a petition where petitioner failed to do so, since petitioner s ents provided adequate notice of the claim and of the relief requested]; see e.g. Mafter v Ceresia, 265 AD2d 730 [3d Dept 19991 [Court upheld the denial of respondent s to dismiss petitioner s Election Law §16-102 petition commenced by the filing of an to show cause and affirmation verified by petitioner s attorney, which was brought on 2 The Board does not contest that the affidavit was properly sworn by the petitioner. 3 These original items were produced by the Board at the hearing on September 16, 2013 e deemed marked into evidence as petitioners one through four in evidence. Page6of 10 [* 7] a1 grounds for failure to commence the proceeding upon a verified petition pursuant Law $16-1 161). In the light of the foregoing, the Court finds that respondents to dismiss pursuant to CPLR 321 l(a)(2) is denied on the grounds that petitioner s OSC, cation brought pursuant to Election Law § 16-102(1); does not violate Election Law $ t s undisputed that petitioner made one scrivener s error on his amended cover sheet. ying the volume numbers from the cover sheet to the amended cover sheet, -/ transposed a 98 instead of an 89 for volume NY1301489 (OSC, exhibit 3). During tember 16, 2013 hearing, petitioner testified on the record as to the following nts that he made to the amended petition cover sheet, which was timely filed with the etitioner stated that when writing in the amended cover sheet he was rushing, as it ast day to amend the petition cover sheet, and he had used the sample cover sheet by the Board. He stated that there was such a small space on the sample cover sheet difficult to write in the volume numbers. he Court finds that petitioner testified truthfully to the facts set forth in the chart created rt below, and his testimony is supported by the documents placed into evidence: AMENDED COVER SHEET VOLUMES LISTED TESTIMONY BY PETITIONER REGARDING THE FACE OF THE COVER SHEET NY 1301485 SAME VOLUME NY 1301486 SAME VOLUME NY 1301487 SAME VOLUME NY 1301488 SAME VOLUME Page7of 10 [* 8] he Court finds that the error made by petitioner was unintentional, and made while to complete the amended cover sheet within the small space allotted on the Board s le cover sheet. The amended cover sheet otherwise correctly identified twelve of the volumes which, without considering the 864 signatures4 contained in the one tified volume, contain exactly 9,389 signatures, which greatly exceeds the 3,750 valid ke defrauded or misled the public or was used for any improper purpose. In fact, the I cover sheet correctly identified these volumes, notwithstanding other errors that Page8of 10 [* 9] all of the volumes in the petition" (Hacks, 109 AD3d at 423). Accordingly, the Court finds that petitioner's independent nominating petition is valid, ioner's amended cover sheet was proper and in substantial compliance with the ments of the Election Law and New York State Board of Elections Regulations, 9 / 6215 of the Board Rules adopted on June 3, 2013, and was not confusing, nor did it have a prejudicial effect on the Board (see Matter of Krance v onte, 87 AD3d 669 [2d Dept 201 I]); Matter of Sierns v Life, 307 AD2d 1016 [2d Dept Walker, 297 AD2d 356, 357 [2d Dept 20021; see also Election Law 5 and 9 NYCRR § 6215.6). Moreover, the Court is constrained not to ignore the possible drastic deprivation of the er's Federal Constitutional guarantee of the right to vote exercised by petitioner seeking o public office of Mayor of the City of New York, and the drastic disenfranchisement of o vote of the 10,253 people who exercised their right to vote by signing an petition, and participated in the political electoral process to designate ner as a candidate for public office (see Staber v Fidler, 65 NY2d 529 [1985]). Thus, following Racks, must conclude that it was improper for the Board of Elections to that the scrivener's error was a fatal defect, rendering this candidate ineligible for the uch, the Court finds that petitioner's application to validate his independent petition from the Rent is 2 Damn High Party as a candidate for the public office of the City of New York, for the General Election to be held on November 5, 2013 is CONCLUSION RDERED that respondents' motion to dismiss the petitioner's application for lack of atter jurisdiction, pursuant to CPLR 321 1(a)(2), is denied; and it is further, Page 9 of 10 [* 10] at petitioner James Earl McMillan, Ill a/k/a Jimmy McMillan s petition to nominating petition from the Rent is 2 Damn High Party as a candidate r of the City of New York, for the General Election to be held on ranted; and it is further, t respondent Board of Elections in the City of New York shall print and e petitioner James Earl McMillan, Ill a/k/a Jimmy McMillan as said fficial ballots of such General Election; and it is further, etitioner is directed to serve a copy of this Order with Notice of ndents and upon the Clerk of the Court, who is directed to enter judgment s the Decision and Order of 0 INAL DISPOSITION NON-FINAL DISPOSITION opriate: 0 DO NOT POST FILED SEP 25 2013 . COUNTY CLERKS OFFICE NEW YORK Page 10 of 10

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