Matter of Dadey v Hunter

[*1] Matter of Dadey v Hunter 2013 NY Slip Op 51447(U) Decided on August 14, 2013 Supreme Court, Onondaga County Greenwood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2013
Supreme Court, Onondaga County

In The Matter of the Application of Thomas V. Dadey, Jr., Petitioner, .

against

Ian Hunter, ERNEST D. MORROW and RANDOLPH F. POTTER, , Respondent-Candidates, ONONDAGA COUNTY BOARD OF ELECTIONS, by HELEN KIGGINS WALSH and DUSTIN M. CZARNY, COMMISSIONERS, CONSTITUTING THE ONONDAGA COUNTY BOARD OF ELECTIONS, Respondents.



2013-3952



APPEARANCES:THOMAS RUSSELL SCHEPP, II, ESQ.

For Petitioner

JOANNA GOZZI, ESQ.

For Onondaga County Board of Elections, Helen Kiggins Walsh and

Dustin M. Czarny

JAMES OSTROWSKI, ESQ.

For Respondents Ian Hunter, Ernest D. Morrow and Randolph F. Potter

Donald A. Greenwood, J.

The petitioner commenced this special proceeding pursuant to Election Law §16-102 seeking to invalidate the designating petition of respondents Ian Hunter, Republican candidate for Mayor of the City of Syracuse; Ernest D. Morrow, Republican candidate for Councilor At Large in the City of Syracuse; and Randolph F. Potter, Republican candidate for Councilor At Large in the City of Syracuse (hereinafter respondent candidates). The pro se respondent candidates interposed a verified answer. They subsequently retained counsel who requested an extension of time to serve an amended answer to raise, inter alia, the defense of the petitioner's standing to commence this proceeding. By letter order dated August 8, 2013, this Court directed that counsel was to make a formal application to amend the answer. The candidate respondents were therefore placed on notice that an oral motion was not sufficient and would be not be considered. The candidate respondents then moved by Order to Show Cause to amend their answer. This Court heard oral argument on the respondent candidates' motion on August 13, 2013 and denied the motion.[FN1] Inasmuch as this matter constitutes a special proceeding and triable issues of fact were raised with respect to certain signatures contained in the designating petition this Court was required to hold a trial of the matter forthwith. See, CPLR §410. The trial commenced on August 13, 2013. Prior to the commencement of the trial, counsel for the candidate respondents renewed his motion with respect to the issue of standing and provided additional case law, and this Court reserved on that motion. As a result, at the request of the parties, the record remained open and counsel was allowed to make legal submissions on the legal issues concerning the renewed motion to amend the answer and the evidence at trial until [*2]August 14, 2013 at 11:00 am.

The Court will first address the candidate respondents' renewal of their motion to amend their answer to challenge the petitioner's standing. See, Election Law §16-102. The proposed amended answer alleges

[t]he petitioner lacks standing. No allegations of standing appear

in the petition. The petitioner may not claim standing as an aggrieved

candidate' because, on information and belief, he is no longer a candidate

for mayor. On information and belief press reports indicate that he has

re-registered outside of the City of Syracuse...intentionally making

himself ineligible to run for mayor so that another candidate may be

named...

Proposed Amended Answer, paras. 14 and 15.

Nowhere however either in the pro se respondents' original answer or the proposed amended answer do the candidate respondents challenge the petitioner's standing on the grounds that he is the Chairman of the Onondaga County Republican Committee, as alleged in the petition. See, Petition para. 1. Instead, in their amended answer, the candidate respondents challenged standing on the limited and narrow issue of the petitioner's status as a candidate alone. See, Proposed Amended Answer, dated August 9, 2013; see also, Affirmation of James Ostrowski, dated August 8, 2013. Therefore, any subsequent oral arguments concerning a challenge to petitioner's standing by virtue of the fact that he is a party chairman was not properly before the Court. Standing is an affirmative defense, which is waived if not specifically raised either as such a defense in an answer or by way of a motion to dismiss. See, Matter of Fosella v. Dinkens, 66 NY2d 162 (1985); see also, Cipriano v. Graves, 87 AD3d 636 (2d Dept. 2011). Affirmative defenses "are not the [petitioner's] burden to prove as part of the cause of action and are thus [respondents'] burden to broach in the answer and sustain at the trial, i.e. to plead and prove." Siegel New York Practice, Fifth Ed. §223. Inasmuch as the candidate respondents failed to assert the issue of lack of standing by virtue of the petitioner's status as Republican County Chairman in either theiranswer or amended answer, it has been waived and this Court was not required to reach that issue as the candidate respondents now argue.[FN2] The respondent candidates have only alleged in their proposed amended answer that, although the petitioner was a candidate for mayor when this proceeding was commenced, he is no longer a candidate and thus cannot claim standing as an aggrieved candidate under the statute. Since the petitioner has not disputed that he is no longer a mayoral candidate, he lacks standing to initiate this proceeding as an aggrieved candidate under the statute. See, Cocco v. Moreira-Brown, 230 AD2d952 (3rd Dept. 1996); see also, Novak v. Jones, 19 AD2d 781 (2d Dept. 1963). However, the record is clear that the petitioner did not initiate this proceeding in the capacity of an aggrieved candidate. Therefore, no matter how meritorious the challenge to the petitioner's standing to institute this proceeding as Republican County Chairman may have been , that challenge has been waived. As such, the [*3]

candidate respondents' renewed motion to amend their answer is denied. The Court will now turn to the merits of the petition.

The Court has considered the law as well as all of the testimony and exhibits, has listened to all of the witnesses and determined their respective credibility. Election Law §6-142 provides that the subject petition "must be signed by voters numbering five percentum of the total number of votes cast for governor at the last gubernatorial election in such unit, excluding blank and void votes..." Election Law §6-142. The proof shows that in the City of Syracuse, the Board of Elections had determined that 569 signatures are needed to satisfy the statutory requirements to qualify for the independent nomination as candidate for Mayor or Councilor At Large. Petitioner established through the testimony of respondents Helen Kiggins Walsh and Dustin M. Czarny, the duly appointed Commissioners of the Onondaga County Board of Elections, that the Board of Elections received the respondent candidates' designating petitions. See, Exhibit 2. The Commissioners further testified that subsequently general and specific objections were filed with the Board of Elections. See, Election Law §6-154; see also, Exhibit 3. In addition, the Commissioners testified that the Board of Elections ruled that 110 of the 682 signatures filed by the respondent candidates were invalid, thus leaving the respondent candidates with 572 signatures. See, Exhibit 4.

At the trial in this matter, the petitioner challenged five signatures, contending that they were invalid: Thomas J. Neuman, Carol Kurtyka, Max Pepper, George Yukalis and Concetta M. Ribsamen. Section 6-130 of the Election Law provides that "[a] designating petition must set forth in every instance the name of the signor, his or her residence address, town or city...and the date when the signature is affixed." Election Law §6-130. The requirements of the statute must be strictly complied with as it is a matter of prescribed content. See, Matter of DiSanzo v. Addabbo, 76 AD3d 655 (2d Dept. 2010). The petitioner has alleged that Neuman, Kurtyka and Pepper did not actually sign the subject petition, and as such their signatures must be invalidated.

Thomas J. Neuman testified and identified the petition containing his purported signature contained in Exhibit 2 and testified that it was not his signature, but his wife had signed the petition instead. This was not refuted by the candidate respondents. With respect to the signature of Carol Kurtyka, Kay Kurtyka identified in sheet 19 of the designating petition received as Exhibit 5 into evidence. She testified that an individual who she identified as candidate respondent Ian Hunter came to her front door with the petition and that she signed the petition twice, once for herself and signed her sister-in-law, CarolKurtyka'ssignature as well. Kay Kurtyka testified that she holds Carol's Power of Attorney, that she advised Hunter as such and that she was signing for her sister. Candidate respondent Hunter, who identified Exhibit 5 as a petition that he himself had circulated, testified that he spoke with Kay Kurtyka and that she signed the petition, that he went into her residence and saw a woman that he believed to be Kay Kurtyka's mother Carol, that he observed the two women speak. He conceded that he did not observe Carol Kurtyka sign the petition. Christopher Germain testified that he circulated petitions on behalf of the respondent candidates. He identified Exhibit 7 received into evidence as the petition that he passed, and testified that he went to each address listed on the petition. He described 947 Pond Street as a "high rise" apartment building and that he spoke with Max Pepper concerning signing the petition. Mr. Pepper indicated that he wanted to wait for his wife Mary and that he could not physically sign the petition because of a physical condition. Germain [*4]further testified that Mary Pepper returned and that Mary Pepper signed her own signature, as well as Max Pepper's signature on the petition. The candidate respondents did not dispute this testimony. The Court therefore makes a factual finding that Thomas J. Neuman, Carol Kurtyka and Max pepper did not sign the petitions. While the Court is sympathetic that these three individuals may have authorized others to sign the designating petitions on their behalf, this Court is without the authority to validate such signatures as the existing statutes and case law require the person purporting to sign the petition be the actual person who has signed it. The "statement of witness" contained in the petition specifically provides that "each of the individuals whose names are subscribed to this petition sheet...subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who signed this sheet." Although a signer of a petition is not required to fill in the date, residence, ward or election district, "he shall sign his name to the petition (citations omitted) in the subscribing witness's presence in order to be counted." Mirrington v. VanDeMark, 51 Misc 2d 305 (Niagra Co., 1966). Inasmuch as Neuman, Kurtyka and Pepper did not sign their names to the subject petition, those three signatures are invalidated.

George Yukalis, identified Exhibit 6 received into evidence as sheet 8 of the designating petition and his signature thereon. Yukalis testified that a man was knocking at the door at 1349 Teall Avenue in the City of Syracuse when he was in the kitchen, that he answered the door and that the man said that he had a petition which Yukalis signed. Yukalis testified that he resided at 1012 Danforth Street and that the individual did not ask where he resided. On cross-examination Yukalis testified that he was visiting his sister at the Teall Avenue address and that he did not know whether he was registered to vote at the Danforth Street address, where he had lived for more than a year. He was asked by the Court if he inserted his address on the designating petition and he testified that he did not know. The credible evidence demonstrates that Yukalis did not reside at the residence listed and a failure to strictly comply with the address requirement of Election Law §6-130 requires the striking of that signature. See, Liepshutz v. Palmateer, 65 NY2d 065 (1985); see also, Stoppenbach v. Sweeney, 98 NY2d 431 (2002); see also, D'Amico v. Mahoney, 115 AD2d 348 (4th Dept. 1984); see also, Shaughnessy v. Herkimer County Board of Elections, 104 AD2d 731 (4th Dept. 1984).

With respect to the signature of Concetta M. Ribsamen, candidate respondent Hunter identified sheet 86 of Exhibit 2.[FN3] Hunter testified that he circulated that petition on July 10, 2013. Line 6 of said petition indicated that the date of the signature was June 10, 2013. Hunter testified that he passed the petition and all of the signatures were received on July 10, 2013 and not June 10, 2013. The credible evidence therefore demonstrates that the candidate respondents failed to comply with the strict requirements of Election Law §6-130 with respect to the inclusion of the date on which the petition was signed. See, Election Law §6-130. As such that signature is stricken. See, Matter of DiSanzo, supra.

This Court therefore finds that the five subject signatures are invalid for the reasons set forth herein. The petitioner's contention that the entire petition should be invalidated due to candidate fraud, however, is without merit. An entire designating petition will only be invalidated on the ground of fraud if there is a finding that the entire petition is permeated with [*5]fraud. See, Tapper v. Sampel, 54 AD3d 435 (2d Dept. 2008). The petitioner has made no such showing here.

After due deliberation and considering all of the evidence, including the exhibits and the credibility of the witnesses, this Court finds that there were 572 valid signatures on the designating petition for the three candidate respondents. The five challenged signatures are hereby invalidated for the reasons set forth above. The Court further finds that 569 valid signatures are required for the subject designating petition to be deemed valid. This Court also finds that 567 valid signatures remain. Therefore, the designating petition is void and of no effect since it does not contain the requisite number of signatures required by the New York State Election Law for these offices. The petitioner is required to submit an Order consistent with this Decision and Election Law §16-102(4).

ENTER

Dated: August 14, 2013

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice

Papers Considered:

1.Order to Show Cause to invalidate designating petitions, dated July 25, 2013;

2.Verified Petition and attached exhibits, dated July 24, 2013;

3.Respondents Hunter, Morrow and Potter's Verified Anser to Petition, dated August 6, 2013;

4.Respondent Commissioners Kiggins Walsh and Czarny's Answer to Petition, dated August 2, 2013;

5.Affidavit of Helen Kiggins Walsh and Dustin M. Czarny, dated August 5, 2013, and attached exhibits;

6.Order to Show Cause, dated August 9, 2013; [*6]

7.Affirmation of James Ostrowski, Esq. in support of Order to Show Cause to amend answer, dated August 9, 2013;

8.Reply Affidavit of Thomas Russell Schepp, II, Esq., dated August 8, 2013, and attached exhibits;

9.Attorney Affidavit of Thomas Russell Schepp, II, Esq. in response to respondent candidates Order to Show Cause, dated August 12, 2013, and attached exhibits;

10.Exhibit 2, admitted into evidence on August 13, 2013;

11.Exhibit 3, admitted into evidence on August 13, 2013;

12.Exhibit 4, admitted into evidence on August 13, 2013;

13.Exhibit 5, admitted into evidence on August 13, 2013;

14.Exhibit 6, admitted into evidence on August 13, 2013;

15.Exhibit 7, admitted into evidence on August 13, 2013;

16.Petitioner's Memorandum of Law, dated August 14, 2013; and

17.Letter of James Ostrowski, Esq., dated August 14, 2013.

Footnotes

Footnote 1:This Court also denied the candidate respondents' motion to amend their answer to allege the defense of lack of jurisdiction for failure to timely commence the proceeding under Election Law §16-102, finding that the defense was waived by the failure of the respondent candidates to raise it in their original answer. The timeliness of the institution of the proceeding under the statute and the manner of service does not go to subject matter jurisdiction. See, Matter of Gregory v. Gill, 59 NY2d 668 (1983). The courts have specifically held that failure to comply with the 14 day rule under the statute is an issue relating to personal jurisdiction. See, Henry v. Trotto, 54 AD3d 424 (2d Dept. 2008); see also, Matter of Rue v. Hill, 287 AD2d 781 (3rd Dept. 2001); see also, Rotanelli v. Westchester Co. Bd of Elections, 2013WL3984989 (Westchester Co., 8/5/13). However meritorious this affirmative defense might have been, the law is settled that a defense of personal jurisdiction "not asserted in the first responsive pleading, whether answer or pre-answer dismissal motion pursuant to CPLR §3211 is waived...While permission to amend an answer is to be freely given pursuant to CPLR §3025(b), the waiver of a jurisdictional defense cannot be nullified by a subsequent amendment to apleading adding the missing affirmative defense." McGowan v. Hoffmeister, 15 AD3d 297 (1st Dept. 2005).

Footnote 2: This Court specifically noted in its ruling from the bench denying the candidate respondents' motion to amend their answer that the petitioner was the Republican County Chairman and that Election Law §16-102 confers standing on a Chairman under certain factual circumstances.

Footnote 3: Although sheet 86 was marked as Exhibit 8, it was never offered or received into evidence.