Matter of Mobley v Cioffe
Annotate this CaseDecided on August 7, 2013
Supreme Court, Kings County
In the Matter of the Application of Connis Mobley, Petitioner-Candidate,
against
Salvatore T. Cioffe , Respondents-Objectors, The Board of Elections in the City of New York, Respondent for an order, pursuant to 16-100, 16-102, and 16-116 of the NYS Election Law, Declaring Valid the Designating Petitions of Petitioner-Candidate.
700026/13
Petitioner Connis Mobley was self represented
Respondent Salvatore Cioffe was self represented
Respondent Board of Elections was represented by Steven H. Richman, Esq., General Counsel, Board of Elections in the City of New York, 32 Broadway, 7th Floor, New York, NY 10004
David I. Schmidt, J.
Upon the foregoing papers and after oral argument held on the record before the court in this proceeding brought pursuant to Article 16 of the Election Law to declare valid the designating petition of Petitioner-Candidate Connis Mobley (petitioner), the court makes the following findings.
On July 11, 2013, petitioner filed a designating petition with respondent Board of Elections in the City of New York (the Board) purporting to designate him as a candidate in the September 10, 2013 Democratic Party primary election for the public office of Member of City Council from the 47th Council District. The petition consisted of four volumes (KG 1301374, KG 1301375, KG 130097, and KG 130098) contained a total of 1073 signatures. In a notice to cure letter dated July 15, 2013, the Board advised petitioner that volumes KG 1301375 and KG 1301374 failed to comply with the Election Law inasmuch as the petition sheets in these volumes were not numbered sequentially at the foot of each sheet. The letter [*2]further advised petitioner that pursuant to 9 NYCRR 6215.1(a), he had three business days of the date of the letter to attempt to cure the defect by filing a copy of the petition volumes that were in compliance with the Election Law. On July 19, 2013, four business days after the date of the Board's letter, petitioner attempted to cure the defect by filing two amended petition volumes.
On or about July 22, 2013, respondent-objector Salvatore T. Cioffe filed with the Board specifications of objections against the designating petition. In a letter dated July 23, 2013, the Board advised petitioner that pursuant to Rule D6 of the Board's Designating Petition Rules for the September 10, 2013 Primary Election, the Commissioners of the Board determined that he would not appear on the ballot due to the fact that his amended petition volumes were not timely filed. On July 29, 2013, petitioner commenced the instant validating proceeding by filing a petition with the County Clerk.
On July 31, 2013, the Commissioners of the Board met to rule on ballot issues pertaining to Kings County. At that meeting, alleged counsel [FN1] for petitioner raised the argument that the Board should not have ruled petitioner off the ballot on July 23, 2013 inasmuch as two of the four volumes filed with the Board were valid and these valid volumes contained more than 450 signatures, which is the requisite number of signatures required for placement on the ballot. The Board agreed with this argument, re-opened the issue of whether petitioner should be placed on the ballot, and ordered that a revised clerk's report be prepared to determine how many valid signatures were contained in the two valid petition volumes (KG 130097 and KG 130098).[FN2] The Board further determined that they would reconvene on August 6, 2013 to make a revised determination as to whether or not petitioner should be placed on the ballot. Thereafter, the revised clerk's report was generated which determined that petitioner's petition had 341 valid signatures, which is 109 fewer than required for placement on the ballot. On August 6, 2013, the court ruled petitioner off the ballot based upon the numbers in the revised clerk's report.
On August 6, 2013, after the Board's final determination, the parties appeared before the court for oral argument and the Board moved to dismiss the instant validating proceeding based upon the argument that it was both untimely and premature. The court now rules as follows.
Election Law § 16-102 (2) provides in relevant part that "[a] proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer of board . . . makes a determination of invalidity with respect to such petition, whichever is later." Thus, in a validating proceeding, the expiration date for the statute of limitations is subject to change depending upon the Board's [*3]actions. Further, if a candidate commences a validating proceeding after the expiration of the 14 day period but prior to the Board's final determination of invalidity, the proceeding is both (and somewhat incongruously) untimely and premature. That is what has occurred in this matter.
In particular, July 11, 2013 was the last day to file designating petitions. Accordingly, July 25, 2013 was 14 days after the last day to file petitions. However, as previously noted, the instant proceeding was not commenced until July 29, 2013. Further, to the extent that the Board ruled petitioner off the ballot in its July 23, 2013 letter, petitioner had until July 26, 2013 (i.e., three business days later) to commence this validating proceeding. However, petitioner did not commence until July 29, 2013. Thus, in these respects, the petition is untimely. Finally, inasmuch as the Board re-opened the issue of petitioner's placement on the ballot on July 31, 2013, and finally determined that petitioner should not be placed on the ballot on August 6, 2013, petitioner has three business days from the Board's August 6th determination (i.e., until August 9, 2013) to commence a validating proceeding. However, the instant proceeding may not serve as such a validating proceeding inasmuch as it is
premature. Specifically, this proceeding was commenced on July 29, 2013, which is not "within three business days after" the Board's August 6th final determination.
Accordingly, the instant proceeding is dismissed without prejudice to commencement of a new validating proceeding on or before August 9, 2013.
E N T E R,
J. S. C.
Footnotes
Footnote 1:Petitioner contends that he never retained this counsel.
Footnote 2:The original clerk's report, which reviewed all four volumes filed by petitioner, determined that the petition had 516 valid signatures.
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