Matter of Washburn v Kelsey

[*1] Matter of Washburn v Kelsey 2015 NY Slip Op 51150(U) Decided on August 5, 2015 Supreme Court, Dutchess County Sproat, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2015
Supreme Court, Dutchess County

In the Matter of the Application of Sandra Washburn, Candidate-Aggrieved

against

Michael N. Kelsey, Respondent-Candidate(s) and Marco Caviglia and Erik Haight, Commissioners Constituting the Dutchess County Board of Elections Respondents, For an Order Pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, Declaring Invalid the Designating Petitions Purporting to designate Michael Kelsey for the Public Office Dutchess County Legislator, District 25, Dutchess County, New York in the Republican Party Primary Election to be held September 10, 2015, and to Restrain the said Board of Elections from Printing and/or placing Michael Kelsey Upon the Republican Party line the Official Ballots of Such Primary Election and General Elections.



2656/2015



Law Office of James Walsh

Attorney for Petitioner

20 Church Street

Balston Spa, NY 12020

Law Office of Michael N. Kelsey

Attorney for Respondent

P.O. Box 108

Salt Point, NY 12578
Christine A. Sproat, J.

Petitioner Sandra Washburn moves for a judgment:

1.Declaring insufficient, defective, invalid, null and void the designating petitions filed with the Dutchess County Board of Elections, purporting to designate and/or nominate Michael Kelsey as a candidate for the September 10, 2015 Republican Party Primary Election; and

2.Enjoining, restraining, and prohibiting the Dutchess County Board of Elections from executing or allowing the name of Michael Kelsey to be printed or placed on the official ballots to be used either at the September 10, 2015 Republican Party Primary Election and the November 3, 2015 General Election for the public office of Dutchess County Legislator, District 25, Dutchess County, New York on the Republican Party Line.

Respondent Michael N. Kelsey moves to dismiss the proceeding.

The following papers were read:

Order to Show Cause- Verified Petition -1-3

Affidavit of Service

Notice of Appearance - Motion to Dismiss and

Memorandum of Law - Annexed Exhibits4-6

Exhibits A-D in Evidence7-10

July 31, 2015 letter of Michael N. Kelsey, Esq.11

August 1, 2015 letter of James Walsh, Esq.12

August 3, 2015 letter of Michael N. Kelsey, Esq.13

Upon the foregoing papers and upon the testimony and evidence presented at the hearing held on July 31, 2015, it is hereby ORDERED that the petitioner's application is denied and the petition is dismissed. All other requested relief is denied.

Petitioner Washburn seeks to invalidate the designating petition filed by respondent Kelsey. Specific objections were made to respondent Kelsey's designating petition as follows:

Sheet

Line

1

SW-RAI

1

3

NRV

1

7

No one by that name registered at that address

3

8

SOP see Washburn petition Page 8 line 2

3

9

SOP see Washburn petition Page 8 line 14

3

10

SOP see Washburn petition Page 8 line 15

5

3

SOP see Washburn petition Page 8 line 11

5

4

SOP see Washburn petition Page 8 line 12

5

5

SOP see Washburn petition Page 8 line 13

5

7

SOP see Washburn petition Page 8 line 9

5

6

NRV

5

9

DUP see page 6 line 5

6

2

WA

6

5

DUP see page 5 line 9

8

10

SOP see Washburn petition Page 11 line 1

9

SW RAI

10

2

SOP see Washburn petition Page 8 line 7

11

5

NRV

During the hearing, the following signatures were stipulated to be invalid: Sheet1, Line 3; Sheet 3, Line 8; Sheet 3, Line 9; Sheet 3, Line 10; Sheet 5, Line 3; Sheet 5, Line 4; Sheet 5, Line 5; Sheet 5, Line 7; Sheet 5, Line 6; Sheet 5, Line 9; Sheet 8, Line 10; Sheet 10, Line 2; and Sheet 11, Line 5. It was further stipulated the petitioner's specific objections to the following signatures were withdrawn: Sheet 1, Line 7; Sheet 6, Line 2; and Sheet 6, Line 5. The remaining objections are to Sheet 1 and Sheet 9 and are based upon the subscribing witness's failure to provide a complete address. There are 10 signatures on Sheet 1 and 3 signatures on Sheet 9. Respondent Kelsey's designating petition contained a total of 119 signatures. The minimum number of valid signatures required is 106. After taking into account the 13 signatures stipulated to be invalid, respondent Kelsey is left with 106 signatures. It is noted that there was no evidence of or any indication of fraud.

A review of both Sheet 1 and Sheet 9 of the respondent Kelsey's designating petition reveals that the subscribing witness for those sheets is Michele Somogyi. Ms. Somogyi states in the "Witness Statement" at the bottom of sheets 1 and 9 that, " I am a duly qualified voter of the State of New York and am an enrolled voter of the Republican Party. I now reside at (residence address): 149 Scott Drive." Further, the "Witness Identification Information" located beneath the witness's signature indicates the Town of Amenia and the County of Dutchess. During the hearing, Commissioner Erik Haight, who was the only witness to testify, indicated that the Witness Statement did not include the municipality or zip code. The petitioner concludes that the signatures on sheets 1 and 9 are invalid because the Witness Statement does not include the complete address of the subscribing witness. However, based upon controlling precedent, this Court, "disagree[s] with the [petitioner's] conclusion that the Election Law requires the disqualification of . . . signature[s] on a designating petition when the subscribing witness fails to include in the "Statement of Witness" . . . a town or city . . . and a postal zip code as part of his or her residence. Here, the subscribing witness provided a correctly-stated street name and house number for the address of [her] residence in compliance with Election Law §6-132(2)." (Matter of Tully v. Ketover, 10 AD3d 436, 437 (2nd Dept., 2004) citing Matter of Feldman v. Gold, 196 AD2d 611, 601 NYS2d 820; Matter of Loeb v. Rivera, 196 AD2d 617, 601 NYS2d 706; Kemp v. Monroe County Bd. Of Elections, 129 Misc 2d 491, 493 NYS2d 529.) "In addition, [s]he properly indicated [her town] and county in the "Witness Identification Information" section of the petition sheet." (Matter of Tully v. Ketover, 10 AD3d 436, 437 (2nd Dept., 2004) citing Election Law §6-132[2]; Matter of Barrett v. Brodsky, 196 AD2d 603, 602 NYS2d 397.) Accordingly, all of the signatures on sheets 1 and 9 will not be invalidated and the petitioner's application to invalidate respondent Kelsey's designating petition must be denied. (Matter of Tully v. Ketover, 10 AD3d 436 (2nd Dept., 2004); see also Matter of Pulver v. Allen, 242 AD2d 398 (3rd Dept., 1997); Matter of Curley v. Zacek, 22 AD3d 954 (3rd Dept., 2005); Matter of Powers v. Kozlowski, 54 AD3d 540 (4th Dept., 2008), leave to appeal denied by 11 [*2]NY3d 701 (2008); Matter of Bichotte v. Adolphe, 120 AD3d 674 (2nd Dept., 2014), leave to appeal denied by 23 NY3d 908 (2014).)

So Ordered.

Dated: August 5, 2015

Poughkeepsie, New York

_______________________________

HON. CHRISTINE A. SPROAT

Supreme Court Justice