Matter of Eaton v Rosenberg

[*1] Matter of Eaton v Rosenberg 2013 NY Slip Op 51312(U) Decided on August 9, 2013 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2013
Supreme Court, Kings County

In the Matter of the Application of Craig A. Eaton,, Petitioner,

against

Avrohom Y. Rosenberg, Ron Tesker, Bronya Vygodskaya, Naum Levin, Sr., Harvey Kamen, Jack Cayre, Marlene F. Bendayan, Gennady Olevsky, Joseph Olevsky, Alexandr Kleyman, Ella Rabinovich, Lioudmilla Cohen, Lyudmilla Levin, Florence L. Betesh, Daniela R. Mercone, Ylena Simarov, Miron Simarov, Yuri Shindelman, Alla Khabarova, Boris Gintchanski, Gennady Galinchenko, Eugene Pevzner, Rita Goldina, Reuven M. Wertzberger a/k/a Reuben N. Werczberger, Aron Markowitz, Yitzchok Esenbach, Tovi Greenfield, Isaac Wertzberger, Lipa Schnitzler, Joel Wertxberger a/k/a Joel Werczberger, Raben Weiss a/k/a Reuben Weiss, Mayer Rothstein, Victor . Best, Jr., Karl Gooden, Richard Dasilva, Charles M. Merjzve, Edward V. Hronec, Jr., Richard Mossilh, Susan F. Salerno-Mosslih, Susan Rendina, Richard Garbellotto, Siu N. Chan, Jamin I. Dick, Paulette Oke, Seth Yule, Frank J. Verderame, Jr., Elizabeth L. Cannata, Emiddio J. Sarro, Michael J. Sonowski, Ann Mary L. Cammareri, Lacqua Cammareri, Henry Sonowski, Gregory Flanagan, John Musumesci, Dolores A. Musumesci, Patrick D. O'Toole, Dian M. Elyas, Helen Delosa, John S. Vergona, Agnes Caminiti, John J. Campione, Mohammed Hossain, Dalim Hossain, Mohamed t. Islam, Carolyn Cook, Shaiful Chowdhury, Jayson E. Santos, Estrella Santos, Youmally Melo, Sean Byrd, Maheuja Akter, Sharlene Brown a/k/a Sherlene Brown, Syeda Rowshan, Shanin Chowdhury, Marlha Perez, ak/a Martha Perez, Maria M. Ruiz, Lis garcia, Cesar Garcia, Maric P. Arciniega-Ruiz, James E. Ruiz, Jennie Rivera, Paula Fields, Willie Macwilliams, Crucita Maldonado, Carmen Hernandez, marilyn Brennan, Hanufa Hossain, Momin Hossain, Rafael Levy, Ronnie Stokes, Akbar Abdin, Sabrina Abdin, Gloria Gonzalez, Miguel Duran, Jr., Emiliano Vasquez, Renee Toomer, Katisha Figuera a/k/a Katisha Figueroa, Rosa Jimenez, Lorraine Winburn a/k/a Lorene Winburn, Victor A. Santos, Delores Warner, Emma Byrd, Marlene B. Tyler, Anthony Byrd, Tyrone I. Duncan, Autumn, R. O'Leary, Sharon Williams, Chyanne K. Marshall, Nicole D. Dobson, Kim Marshall, Melissa Ann O'Leary, grace O'Leary, Barbara Thompson, Monique L. Pimble, Lamont Pickney, James O'Leary, Mary L. Thompson, Evelyn Hernandez, Tameka Thomas, Tasha L. Viera, Alysandi Denny, Earlane Lynch, Harry L. Grimes, Kameelah Humphrey, brendon Cassimy, Mavis Cassimy, Orlando Torres, Jr., Miriam Nair, Jasmani torres a/k/a Jasami Torres, Janice Anaman, Dwayne Anderson, Asron D. Strait, Izel Williamson, Claudette Reid, Paramia a. Smith Bienvenido Cabrera, Jerema C. Jackson a/k/a Jerama C. Jackson,, Respondent-Candidates, and The Board of Elections in The City of New York, Respondent.



700007/13



Plaintiff Attorney: Gene R. Berardelli, PLLC, 299 Broadway, 17th Fl., New York, NY 10007

Defendant Attorney: Corp. Counsel, 100 Church Street, New York, NY 10007

David I. Schmidt, J.

Upon the foregoing papers and oral argument before the court conducted on the record, the respondent-candidates move for an order dismissing the petitions based on petitioner Craig A. Eaton's lack of standing to commence the special proceeding.[FN1]

The motion is granted and the petition is dismissed and/or denied.

In this proceeding, petitioner Craig Eaton, who identifies himself as the County Chairman of the Kings County Republican County Committee, seeks an order declaring the respondent-candidates' designating petitions for the Party Positions of Members of Republican County Committee from the 45th, 50th, 52nd, 54th and 55th Assembly Districts invalid on the ground that each of the respondent-candidates does not possess sufficient valid [*2]signatures. Counsel for the respondent-candidates has answered and moved to dismiss on the ground that petitioner does not have standing to bring this proceeding. In this regard, Election Law § 16-102 (1) provides that a proceeding to challenge the nomination of any candidate for any public office "may be contested in a proceeding instituted in the supreme court by any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections, as provided in this chapter, except that the chairman of a party committee may not bring a proceeding with respect to a designation or the holding of an otherwise uncontested primary." Petitioner does not have standing to bring this proceeding under Election Law § 16-102 (1) because of the language in that section which specifically bars a chairman of a party committee from bringing "a proceeding with respect to a designation or the holding of an otherwise uncontested primary" (see Matter of Maltese v Anderson, 264 AD2d 457, 457 [2d Dept 1999]; Matter of D'Alvia v DiGiacomo, 175 AD2d 891, 891-892 [2d Dept 1991]; see also Matter of Levine v Turco, 43 AD3d 618, 619-620 [3d Dept 2007], lv denied 9 NY3d 804 [2007]; Matter of Parete v Turco, 21 AD3d 691, 692 [3d Dept 2005]).

Petitioner concedes that he does not have standing to commence this proceeding. Nevertheless, he asserts that counsel who has appeared in opposition to the petition, James Walsh, Esq. (who appears on the papers, and on whose behalf Jeffrey Buley appeared in the courtroom), does not have the authority to represent the respondent-candidates, and that without such authority, this court may not consider the answer and motion to dismiss made on the behalf of the respondent-candidates. Petitioner further asserts that, since the answer and motion to dismiss may not be considered based on the absence of authority for Walsh and Buley to appear, the respondent-candidates are in default. As a challenge to standing is generally waived if it is not raised in responsive pleading or a motion to dismiss (see Matter of Klein v Garfinkle, 12 AD3d 604, 605 [2d Dept 2004]),[FN2] petitioner asserts that there is no viable challenge to the petition and it should be granted on default.

Counsel for petitioner supports his assertion that Walsh and Buley have no authority by stating that he spoke with two of the respondent-candidates outside of the courtroom, and that they told him that they did not agree to Walsh and Buley appearing on their behalf.[FN3] In [*3]opposing petitioner's contentions, Buley stated that Walsh had been retained by a political committee or organization on the behalf of the candidates. While Buley did not specifically address whether the individual candidates had provided him with express consent to represent them in this proceeding at the time of the initial return date of the petition, on the August 2, 2013 adjourn date of the proceeding Buley submitted affidavits dated August 1, 2013 from many, but not all, of the respondent-candidates stating that Walsh and Buley are their attorneys and represent their interests in this special proceeding. In the evening of August 2, 2013, Buley e-mailed the court scanned copies of additional such affidavits from a few more respondent candidates [FN4] and scanned copies of affidavits from Raymond J. Riley III, who states that he is the contact person for the candidates on the petitions, and that he arranged for Walsh and Buley to appear in court and represent the respondent-candidates.

Turning to the applicable law, an attorney's authority to appear on the behalf of his or her clients is generally presumed and the attorney is not normally required to exhibit his or her authority to appear (see Hamilton v Wright, 37 NY 502, 505 [1868]; NRK Mgt. Corp. v Donahue, 109 Misc 2d 601, 602 [Civ Ct, Queens County 1981]). This presumption of authority to appear is not overcome by the "mere suggestion" of opposing counsel (Deutsche Bank Trust Co. Americas v Thanhauser, 2013 NY Slip Op 30565 [U] [Sup Ct, Suffolk County 2013]; Buxbaum v Assicurazioni General, 34 NYS2d 480, 482 [Sup Ct, New York County 1942], affd 264 App Div 855 [1st Dept 1942]). As such, it would appear somewhat anomalous that a petitioner without standing could challenge the authority of opposing counsel. Assuming, however, that petitioner can question the authority of Buley and Walsh to appear on the behalf of the respondent candidates, the burden is cast on Buley and Walsh to prove their authority to so appear (Gaston & Co. v All Russian Zemsky Union, 221 App Div 732, 734 [1st Dept 1927]; New York Community Bank v Woodhaven Assocs., LLC, 2011 NY Slip Op 33314 [U] [Sup Ct, Queens County 2011]; NRK Mgt. Corp., 109 Misc 2d at 602-603).

In determining the issue, the court notes that, while each respondent-candidate is running for a separate party position, the respondent-candidates are essentially running as a slate of candidates (see Matter of Thomas v Donitz, 43 Misc 2d 385, 386 [Sup Ct, Kings [*4]County 1964]). From allegations contained in the bill of particulars, it is evident that the numerous respondent-candidates petitions are shared amongst only seven petition volumes. In addition, the majority of the respondent-candidates only need 2 to 5 valid signatures on the petition to be designated.[FN5] Given the nature of the party positions at stake, and the fact that the each petition volume is shared by many candidates, the court draws an inference that the respondent-candidates expected and/or relied upon the organizers of the slate to arrange for a defense of the respondent-candidates petitions in the event of a challenge to the petitions and that, by agreeing to run, the respondent-candidates tacitly consented to those organizers of the slate providing counsel for them. Indeed, such an inference is almost compelled under the circumstances here. To hold otherwise would require finding that the 138 respondent candidates had essentially decided to default in appearing because none of them appeared by other counsel or on their own behalf on the return date.

Counsel, in addition, has supplied express consents from 42 of the respondent-candidates. The limited time respondent-candidates had to answer, the compressed schedule of the election law proceedings and the evident difficulty in obtaining express consent from the approximately 138 respondent-candidates certainly provides a reasonable explanation for Walsh and Buley's failure to obtain more express consents. Petitioner, other than his counsel's representations regarding two respondent-candidates (which, as noted above, have not been placed in evidentiary form), has failed to identify any other respondent candidates who have declined to be represented by Walsh and Buley.

Given these facts, the court's decision in Matter of Werbel (82 NYS2d 29, 29 [Sup Ct, Kings County 1948]), where the court rejected the authority of counsel to appear on the behalf of a slate of candidates for party committee positions, is readily distinguishable. In Matter of Werbel, counsel's only asserted authority to represent candidates for county committee positions came from the "organization" (id.). More importantly, 229 of the respondents in Matter of Werbel had signed verified statements requesting to be stricken as candidates and that their names had been used without their knowledge or consent (id.).

Accordingly, this court finds that Walsh and Buley have authority to appear for the respondent candidates, that their answer and motion raise the issue of standing, and that the petition must thus be dismissed based on petitioner's conceded lack of standing.[FN6] [*5]

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: These special proceedings had initially been commenced by five separate petitions under index numbers 700007/13, 700008/13, 700009/13, 700010/13, and 700011/13. These actions were thereafter consolidated under index no. 700007/13 by an order dated August 1, 2013 (Schmidt, J.).

Footnote 2: Even if the issue is deemed one of capacity to sue rather than standing, as has been held by the Appellate Division, Third Department (see Matter of Parete, 21 AD3d at 692), it is also a defense that can be waived by a failure to raise it in a responsive pleading or motion to dismiss (see George Strokes Elec. & Plumbing Inc. v Dye, 240 AD2d 919, 920 [3d Dept 1997]).

Footnote 3: While counsel's representations may serve as a basis to question Walsh and Buley's authority, the court declines to consider this as evidence that those respondent-candidates had specifically rejected Walsh and Buley's appearance on their behalf. In this regard, petitioner's counsel also stated that these respondent-candidates had difficulty speaking English and counsel did not submit an affidavit from these respondent-candidates or request that they testify on the record.

Footnote 4: The affidavits submitted in court and the scanned copies e-mailed to the court are from respondent candidates Avrahom Rosenberg, Gennady Olevsky, Joseph Olevsky, Ella Rabinovich, Boris Gintchanski, Eugene Pevzner, Victor Best, Karl Gooden, Susan Salerno-Mosslih, Emiddio Sarro, Gregory Flanagan, Mohammed Hossain, Dalim Hossain, Shaiful Chowdhury, Jayson Santos, Estrella Santos, Yomally Melo, Sean Byrd, Syeda Rowshan, Shanin Chowdhury, Marlha Perez, Lis Garcia, Cesar Garcia, Willie Mae Williams (apparently sued herein as Willie Macwilliams), Crucita Maldonado, Marilyn Brennan, Hanufa Hossain, Momin Hossain, Akbar Abdin, Sabrina Abdin, Gloria Gonzalez, Nicole Dobson, Kim Marshall, Lamont Pickney, James O'Leary, Mary Thompson, Evelyn Hernandez, Tameka Thomas, Tasha Viera, Miriam Nair, Janice Anaman, and Jerema Jackson.

Footnote 5: A few candidates need up to eleven valid signatures.

Footnote 6: Assuming that the court is incorrect, and Walsh and Buley cannot be deemed to have had the tacit consent of all of the respondent-candidates, the court finds that, at the very least, Walsh and Buley's representation was ratified by the candidate-respondents who submitted affidavits, that this ratification would relate back to the Walsh and Buley's initial appearance in the proceedings (see Mott v Kerns, 825 F2d 411 [Table], 1987 WL 38371 [6th Cir 1987]; Bethlehem Steel Corp. V Devers, 389 F2d 44, 45-46 [4th Cir 1968]; see also Rocky Point Props. v Sear-Brown Group, 295 AD2d 911, 913 [4th Dept 2002]), and that those candidate-respondents who submitted affidavits would thus be entitled to the dismissal of the complaint as against them.