Matter of Gangemi v Board of Elections in the City of New York

[*1] Matter of Gangemi v Board of Elections in the City of New York 2013 NY Slip Op 51368(U) Decided on August 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2013
Supreme Court, Kings County

In the Matter of the Application of John F. Gangemi, Petitioner,

against

The Board of Elections in the City of New York, Respondent and Shanna Trotman and Glenn D. Martin, Objector-Respondent, Eric Adams, Candidate-Aggrieved Respondent.



700027/13



Plaintiff Attorney: Kenneth Gayle, Esq., 16 Court Street, Suite 2000, Brooklyn, NY 11241-1020

Counsel for respondent objectors and candidate: Anthony Genovesi, Esq., Borchert, Genovisi & Laspina, P.C., 1902 Whitestone Expressway, Whitestone, NY 11357-3059 and Frank V. Carone, Esq., Abrams Fensterman Fensterman Eisman Gisenberg Furmato Einiger, LLP, 9306 Flatlands Avenue, Brooklyn, NY 11236-3706

David I. Schmidt, J.

Upon the foregoing papers and oral argument held on the record before the court in [*2]this proceeding brought pursuant to Article 16 of the Election Law to declare valid the designating petition purporting to name petitioner John Gangemi (petitioner or Mr. Gangemi) as candidate for the public office of President of the Borough of Brooklyn, Kings County, City and State of New York in the September 10, 2013 Democratic Party primary election, petitioner moves for an order granting his petition to validate and respondents move for an order dismissing the validating proceeding.

Background Facts and the Invalidating Proceeding

On July 10, 2013, petitioner filed a designating petition with respondent Board of Elections in the City of New York (the Board) purporting to designate him as candidate for the office of Brooklyn Borough President in the September 10, 2013 Democratic Party primary election. Along with the petition, petitioner filed a cover sheet which listed various volumes contained in the petition. On July 11, 2013, petitioner filed an amended cover sheet which listed additional volumes in the petition including KG 1301124. The filing of this amended cover sheet was not prompted by a notice to cure letter from the Board. The amended cover sheet did not contain an authentication required by Board's Rule C4.[FN1]In a letter dated July 15, 2013, the Board advised petitioner's designated contact person (Frank Morano) that the cover sheet failed to comply with the Board's rules inasmuch as volume KG 1301124 was not filed. The letter further advised that petitioner had three business days from the date of the letter to cure the defect by filing an amended cover sheet and that failure to file an amended cover sheet within three days "shall be a fatal defect." However, the Board's letter did not list the absence of the authentication required by Rule C4 as a defect.

On July 17, 2013, petitioner filed a second amended cover sheet which omitted KG 1301124 from the list of volumes contained in the filed petition. This second amended cover sheet also listed a previously unclaimed volume in the petition - KG 1301377. In this regard, KG 1301377 was a volume containing several candidates with Mr. Gangemi's name only appearing on pages 137 to 144 and 151 to 152 of the volume. However, the second amended cover sheet did not specify the pages of volume KG 1301377 upon which Mr. Gangemi's name appeared. Finally, the second amended cover sheet failed to contain the authentication statement required by Rule C4.

In a letter dated July 19, 2013, the Board advised petitioner that:

"The Commissioners of Elections . . . pursuant to the provisions of Rule D6 of the Board's Designating Petition Rules for the September 10, 2013 Primary Election, at a meeting held on July 19, 2013, determined that [respondent-candidate] will not appear on the ballot for the September 10, 2013 Primary Election since the Amended Cover sheet filed did not comply with the New York State Election Law and/or the Rules of the Board of [*3]Elections."

In this regard, the Board's letter noted that the (second) amended cover sheet did not contain the authentication required by Rule C4. The Board further noted that the (second) amended cover sheet claimed a petition volume on which the petitioner's name does not appear. This latter defect was a reference to the recently claimed volume KG 1301377.

On July 18, 2013, respondent-objectors Shanna Trotman and Glenn D. Martin as well as candidate-aggrieved/respondent Eric Adams commenced a proceeding under Kings County Index # 700001/13 by filing with the County Clerk a petition seeking to invalidate the designating petition filed by Mr. Gangemi. The matter was set down for a July 29, 2013 return date. On July 22, 2013, the objectors filed specifications of objections with the Board challenging various signatures on the designating petition. The Board reviewed the specifications and ultimately generated a clerk's report indicating that Mr. Gangemi's petition had 1809 valid signatures, 191 fewer than the 2,000 required for placement on the ballot.

In a responsive e-mail sent July 22, 2013 (a copy of which was introduced by petitioner at oral argument and marked as court's exhibit #1), Steven H. Richman, General Counsel for the Board, informed petitioner's campaign manager (Dom Crispino) that the Board's July 19th letter "is the official determination on behalf of [the Board] . . . and is issued pursuant to the Board's 2013 Designating Petition Rules, Rule D6." The e-mail further advised Mr. Crispino that although there was no provision in the Board's rules for a review of this determination, a party could seek to be recognized by the Board and seek an opportunity for such review.[FN2]

On July 24, 2013, several events transpired. In particular, petitioner presented to the court for signature an order to show cause and verified cross-petition seeking to validate his designating petition. Notably, petitioner did not purchase a new index number for this cross petition nor did he file the cross-petition with the County Clerk. Instead, Mr. Gangemi used the existing index number (700001/13) previously purchased by respondents as well as the caption of respondents' invalidating proceeding. In any event, the court signed the order to show cause and set the cross-petition down for the scheduled July 29, 2013 return date.

Also on July 24, Mr. Crispino delivered to the Board a letter acknowledging receipt of the Board's July 19th letter. In this letter, Mr. Crispino objected to the Board's claim that the second amended cover sheet was defective for failure to comply with Rule C4 inasmuch as the Board failed to cite this defect in its July 15th notice to cure the first amended cover sheet. In addition, Mr. Crispino claimed that KG 1301377 was a validly claimed petition volume inasmuch as Mr. Gangemi's name appeared on pages 137 to 144 and 151 to 152 of the volume. Finally, petitioner simultaneously filed with the Board a third amended cover sheet and fourth amended cover sheet which indicated that Mr. Gangemi's name appeared on pages 137 to 144 and 151 to 152 of volume KG 1301377. The third and fourth amended [*4]cover sheet both contained the authentication statement required by Rule C4.[FN3]

On July 29, 2013, the parties appeared before the court in the invalidating proceeding and respondents moved to dismiss the cross petition based upon petitioner's alleged failure to serve respondents' attorney as directed in the July 24, 2013 order to show cause. At that point, the court advised the parties that it may lack jurisdiction with respect to the cross petition inasmuch as Mr. Gangemi had not purchased an index number or filed the cross petition with the County Clerk. The parties then asked the court for an opportunity to brief this issue and the matter was adjourned to August 1, 2013.

On July 31, 2013, the Commissioners of the Board carried out its scheduled hearing on designating petitions and related matters for the September 10, 2013 Primary Election in elections involving Kings County. At this hearing, Mr. Crispino reiterated his objections to the Board's determination regarding the cover sheet defects. However, the Board adhered to its determination that the cover sheets were fatally defective.

On August 1, 2013, the parties appeared before the court on the invalidating petition and respondents submitted a memorandum of law arguing, among other things, that petitioner's failure to purchase an index number for the cross petition was a fatal jurisdictional defect. Petitioner submitted to the court an amended verified answer dated July 29, 2013 which contained a cross claim against the Board alleging that it made an erroneous determination in removing him from the ballot based upon the alleged cover sheet defect. Thereafter, the court heard oral argument from the parties and the Board and reserved decision. Ultimately, in an order dated August 8, 2013, the court dismissed the cross petition and cross claim. The court further dismissed the invalidating proceeding as moot without prejudice to renewal should petitioner's validating claim be revived on appeal in either the invalidating proceeding or the instant validating proceeding.

The Instant Validating Proceeding

On August 2, 2013, petitioner commenced the instant validating proceeding by purchasing an index number and filing a petition with the County Clerk. On that same day, Hon. Larry D. Martin of this court signed an order to show cause attached to the petition and set the matter down for an August 6, 2013 return date before this court. On the return date, counsel for petitioner and counsel for respondent objectors and respondent aggrieved candidate appeared before the court and oral argument was held on the record. In this regard, respondents moved to dismiss the instant validating petition on statute of limitations grounds.

In support of their motion, respondents point to the Board's July 19, 2013 letter which informed petitioner that pursuant to Rule D6 of the Board's rules, his name would not appear on the ballot due to the aforementioned defects in his cover sheet. Respondents further point to the Appellate Division, Second Department's ruling in Matter of Leroy v Board of [*5]Elections in City of New York (65 AD3d 645 [2009]), in which the court determined that a notification that a candidate has been removed from the ballot pursuant to Rule D6 provides for a final determination of invalidity so as to start running of the three business day statute of limitations set forth in Election Law § 16-102 (2). Thus, inasmuch as July 24, 2013 was three business days after the July 19, 2013 determination, and July 25, 2013 was 14 days after the last day to file petitions, respondents maintain that the statute of limitations expired more than a week prior to the commencement of this proceeding.

In opposition to respondents' motion, petitioner argues that the Board did not make a final determination regarding the invalidity of his designating petition until the Board's Commissioners voted him off the ballot at the July 31, 2013 hearing. In support of this contention, petitioner submits a copy of Mr. Richman's e-mail (court's exhibit #1) which indicates that Petitioner could seek to be recognized at this meeting regarding his objections. Petitioner further offers the sworn testimony of Mr. Crispino, in which he states that he did in fact raise the cover sheet issues at the Board's meeting and that the Board re-opened this issue. Petitioner also argues that the fact that the Board completed a clerk's report on the specification of objections submitted by the objectors after the July 19, 2013 letter indicates that the Board had not yet made a final determination on the invalidity regarding the designating petition. Finally, petitioner argues that to the extent that this validating proceeding was filed after the statute of limitations expired, it is nevertheless timely inasmuch as it relates back to the timely filed invalidating proceeding commenced by respondents under Kings County Index No. 700001/2013.

Under Election Law § 16-102 (2), a proceeding with respect to a designating petition must be filed within fourteen days after the last day to file the petition, or three business days after the Board makes a determination of invalidity of the petition, whichever is later. Here, it is undisputed that the instant proceeding was filed more than 14 days after the last day to file petitions. Accordingly, the issue before the court is whether the Board made a determination of invalidity of the petition when it issued the July 19, 2013 letter, or whether this determination was made at the July 31, 2013 Commissioner's meeting. In particular, if the determination was made on July 19th, the matter is untimely. If the determination was made on July 31st the matter is timely.

In Matter of Leroy (65 AD3d at 645), the Second Department specifically ruled that the Board's letter to a candidate stating that she would not appear on the ballot pursuant to Rule D6 "provided for a final determination of invalidity" so as to begin the running of the statute of limitations set forth in Election Law § 16-102 (2). Here, the Board's July 19th letter unambiguously informed petitioner that pursuant to Rule D6, the Board determined that his name would not appear on the ballot. As such, Matter of Leroy is directly on point with the instant case and requires a finding that the Board's July 19th letter provided for a determination of invalidity for purposes of Election Law § 16-102 (2).

Further, none of the evidence or testimony submitted by petitioner demonstrates that Board subsequently re-opened the issue of the cover sheet defects so as to reset the running [*6]of the statute of limitations period. In particular, in the July 22, 2013 e-mail submitted by petitioners, General Counsel for the Board reiterated that the [July 19th] notice "is the official determination on behalf of the [Board]." Counsel further stated that this letter constituted the "required notice with respect to the candidate's rights under Article 16 of the Election Law." In addition, while it is undisputed that petitioner was permitted to raise the issue of the cover sheet defects at the Commissioners July 31, 2013 hearing, there was no formal reconsideration of the matter by the Board. At best, petitioner's arguments to the Board constituted a request that the Board reconsider its prior determination, a request that the Board denied (see Matter of Todd v New York City Hous. Auth, 262 AD2d 202 [1999] [The statute of limitations is not extended by an application to an administrative agency to reconsider its prior determination]). Indeed, the appellate briefs in Matter of Leroy reveal that the candidate ruled off by the Board in that case also presented arguments at the Commissioner's meeting. However, this was insufficient to extend the statute of limitations.

The court also finds no merit to petitioner's argument that the Board's generation of a clerk's report on the specifications of objections after the July 19th letter demonstrates that the Board's determination on July 19th was not final. In this regard, the Board had an obligation to complete the clerk's report in order to create a complete record should the Board's determination on the prima facie cover sheet defect be overturned in subsequent litigation. Further, the relations-back doctrine has no application in an Election Law proceeding.

As a final matter, the court finds that even if petitioner's validating proceeding had been timely commenced, his designating petition was properly ruled invalid by the Board based upon a fatal cover sheet error. In particular, it is undisputed that petitioner's second amended cover sheet claimed the petition volume KG 1301377, but failed to indicate that petitioner's name only appeared on pages 137 to 144 and 151 to 152 of this volume. Furthermore, this defect was not corrected by petitioner until July 24, 2013, when he filed a third and fourth amended cover sheet. While 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, this does not hold true when the defect presents a risk of fraud or confusion (Matter of Krance v Chiaramonte, 87 AD3d 669 [2011]; Matter of Magelaner v Park, 32 AD3d 487, 488 [2006]). Here, petitioner's failure to identify the handful of petition sheets upon which his name appeared in the subject volume would likely prevent the objectors from reviewing and challenging the signatures on these sheets. Moreover, the last day to file specifications of objection was July 22, 2013, two days before the defect was corrected.

Accordingly, the instant validating proceeding is denied and dismissed as it was not timely commence under Election Law § 16-102 (2).

This constitutes the decision and order of the court.

E N T E R FORTHWITH,

J. S. C.

Footnotes

Footnote 1:Rule C4 of the Board's Designating Petition Rules for the September 10, 2013 Primary Election provides in pertinent part that, "An amended cover sheet . . . must contain the following authentication: this is to certify that I am authorized to file this amended cover sheet."

Footnote 2:The original e-mail which prompted Mr. Richman's response was not submitted to the court.

Footnote 3:It is unclear what if any difference there is between the third and fourth amended cover sheets.