Matter of Balberg v Board of Elections in the City of New York
Annotate this CaseDecided on August 6, 2013
Supreme Court, Kings County
In the Matter of the Application of Stuart A. Balberg et al., Petitioners,
against
The Board of Elections in the City of New York, Respondent.
700014/13
Counsel for the petitioners: Gene Berardelli, Esq., 299 Broadway, 17th Fl., New York, NY 10007
Counsel for respondent Board of Elections: 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 petitions of 68 petitioners, who are proposed candidates for Members of Republican Party County Committee from various Election Districts in the 43rd Assembly District, the court finds as follows.
On July 11, 2013, petitioners attempted to file with respondent Board of Elections in the City of New York (the Board) their designating petitions which were combined into a single petition volume (KG 1300829). Along with the petitions, petitioners filed a five page cover sheet, a copy of which was marked as exhibit No.2 at oral argument before the court. This cover sheet does not follow the form of the sample cover sheet which is attached to the Board's Designating Petition Rules. Rather, the cover sheet was drafted by Petitioners, using their own form and language. Notable, the far right column of this cover sheet contains a box for each Election District at issue in this proceeding (34 boxes in total), with two [*2]respondent-candidates seeking placement on the ballot for each of these Election Districts. The top of this column, contains the statement: "If checked ( ), The Petition contains the number, or in excess of the number, of valid signatures required by the Election Law." This statement also has a footnote (#4), which references additional language at the bottom of the sheets stating: "The absence of a check mark ( ) shall signify that petitions for the candidates set forth in the specified election district are not hereby filed and should be disregarded as void." None of the 34 boxes which correspond to the 34 Election Districts and 68 petitioner-candidates were checked in the five-page cover sheet.
Based upon these cover sheet statements, the Board treated the petitions as null and void. The Board did not send petitioners' designated contact person a notice of noncompliance and opportunity to cure the failure to check the boxes. On July 24, 2013, petitioners commenced the instant proceeding against the Board seeking to validate the subject designating petitions. Among other things, the petition alleges that each of the petitions were in proper form and contain more than the requisite number of signatures required for placement on the ballots. The petition further alleges that the cover sheet for petitioners failed to state that each of petitioner's designating petitions contained more than the requisite number of signatures required, but that the petitions should nevertheless be validated. The matter was set down for a July 29, 2013 return date, which was subsequently adjourned to August 1, 2013.
On the return date, petitioners and respondent Board appeared before the court and oral argument was held on the record. In support of their claim to validate, petitioners initially note that the petitions sheets themselves were in proper form and contained the required number of signatures. Petitioners contend that the failure to check the cover sheet boxes indicating that their petitions contain the requisite number or more than the requisite number of signatures was a minor technical error, which may not serve as a basis for the Board's rejection of their valid and otherwise unchallenged petitions. Petitioners further argue that pursuant to its own rules, the Board should have sent their contact person a notice to cure this defect. Having failed to send this notice, Petitioners aver that the Board is precluded from rejecting their petitions.
In opposition to Petitioners' arguments, the Board introduced into evidence as exhibit #2 a copy of the subject cover sheet. In this regard, the Board notes that pursuant to the plain language contained in the far right column heading as well as footnote #4, the cover sheet specifically states that the petitions were not filed and should be disregarded as void. The Board further notes that this language was drafted by Petitioners themselves. Under the circumstances, the Board argues that it acted properly in deeming the petitions unfiled and void and that it had no duty to send a notice to cure a cover sheet defect for void petitions.
It is well-settled that the Board may not reject a designating petition based upon a minor cover sheet error when the cover sheet is otherwise in substantial compliance with the Election Law and the underlying defect presents no danger of fraud or confusion to the Board or to the voters (Matter of Krance v Chiaramonte, 87 AD3d 669 [2011]; Matter of [*3]Magelaner v Park, 32 AD3d 487, 488 [2006]; Matter of Pearse v New York City Bd. of Elections, 10 AD3d 461 [2004]). Indeed, this court has not hesitated to order the reinstatement of designating petitions which were improperly rejected by the Board based upon trivial cover sheet errors (see Matter of Antoine v Boyland, 21 Misc 3d 298, 302-303 [2008]). However, the cover sheet issue involved in this matter goes far beyond the type of minor defect which may be overlooked and otherwise presents no danger of fraud or of creating confusion. As noted above, petitioners presented a cover sheet to the Board of their own creation which, given the absence of check marks in the right hand column, along with the language in footnote #4 affirmatively represented in plain language that the "petitions for the candidates set forth in the specified election district are not hereby filed and should be disregard as void." At the very least, this language created a strong possibility creating confusion amongst the Board and voters regarding the intent of the candidates in the petitions. Further, any potential objectors or aggrieved candidates examining the petitions for possible challenges to signatures in the petition would likely determine that it was unnecessary to submit objections to the Board or to commence an invalidating proceeding in court given the representation on the cover sheet that the petitions were not filed and void.
The court also finds no merit to petitioners' argument that the Board should have sent their contact person a notice to cure the defect in the cover sheet. The petitioners' cover sheet made a representation to the Board that the petitions were not filed and should be treated as void and the Board had no reason to treat Petitioner's own unambiguous representation as a cover sheet defect so as to require the sending of a notice to cure. Finally, petitioners' error may not be corrected by the court nunc pro tunc as the time to file the petitions and to submit objections to the petitions has long since past.
Accordingly, the petitioners' petition to validate their respective designating petitions is denied and dismissed.
This constitutes the decision and order of the court.
E N T E R,
J. S. C.
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