Haight v Caviglia

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Haight v Caviglia 2018 NY Slip Op 34005(U) September 18, 2018 Supreme Court, Dutchess County Docket Number: 52715/18 Judge: Maria G. Rosa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 2018-52715 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/19/2018 SUPREME SUPREME COURT COURT OF THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF DUTCHESS DUTCHESS Present: Present: Hon. Maria Maria G. Rosa Rosa Justice Justice ERIK ERIK HAIGHT, HAIGHT, Republican Republican Commissioner Commissioner of of Elections, Elections, Dutchess Dutchess County, County, Petitioner, Petitioner, -against-against- DECISION, DECISION, ORDER ORDER AND AND JUDGMENT JUDGMENT MARCO VIGLIA, MARCO CA CAVIGLIA, Democratic Democratic Commissioner Commissioner of of Elections, Elections, Dutchess Dutchess County, County, Index Index No. 52715/18 52715/18 DUTCHESS DUTCHESS COUNTY COUNTY BOARD BOARD OF ELECTIONS, ELECTIONS, Respondent-Board Respondent-Board, , COLEEN COLEEN E. SNOW, SNOW, Purported Purported Candidate Candidate for Councilmember Councilmember in the Town Town of of Pawling, Pawling, Respondent. Respondent. For an Order Order Pursuant Pursuant to CPLR CPLR Article Article 78 and Section Section 3001. The following following papers papers were read on this proceeding proceeding to remove candidate from the 2018 remove a candidate General General Election Election ballot. ballot. AMENDED AMENDED ORDER ORDER TO SHOW SHOW CAUSE CAUSE VERIFIED VERIFIED PETITION PETITION EXHIBITS EXHIBITS A - E VERIFIED VERIFIED ANSWER ANSWER MEMORANDUM MEMORANDUM OF LAW LAW EXHIBITS EXHIBITS A -G VERIFIED VERIFIED ANSWER ANSWER 1 of 4 [* 2] INDEX NO. 2018-52715 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/19/2018 REPL Y AFFIRMATION AFFIRMATION REPLY Petitioner, the Republican Republican Commissioner Commissioner of of Elections Elections for Dutchess Dutchess County, County, commenced commenced this this Petitioner, proceeding order to show show cause cause seeking seeking a judgment requiring the removal removal of of candidate candidate Coleen Coleen proceeding by order judgment requiring Snow from the 2018 2018 General General Election Election ballot ballot as the candidate candidate of ofthe Women's Equality Equality Party Party for E. Snow the Women's office of of Pawling Pawling Town Town Councilmember. Councilmember. Designating petitions petitions nominating nominating Snow Snow as the the office Designating Women's Equality Equality Party Party candidate candidate for the office office were were filed with with the Dutchess Dutchess County County Board Board of of Women's Elections on July July 10, 10,2018. that same same date, the President President of of the New York State Women's Women's Elections 2018. On that New York Equality Party Party filed with with the Board Board of of Elections Elections a certificate certificate of of nomination nomination pursuant Election Law Law Equality pursuant to Election 96-120 authorizing authorizing the nomination nomination of of Snow Snow for that that office. office. Petitioner Petitioner alleges alleges that that respondent respondent Marco Marco §6-120 Caviglia, the Democratic Democratic Commissioner Commissioner ofElections of Elections for Dutchess Dutchess County, County, reviewed reviewed the designating designating Caviglia, petition on July 11, 11,2018 found it valid. valid. Petitioner Petitioner maintains maintains the designating designating petition petition is not not petition 2018 and found valid because because the Women's Women's Equality Equality Party Party failed to establish establish and/or and/or organize organize a county county committee committee valid under Article Article 2 of of the Election Election Law Law and and thus thus there there was no lawful lawful authority authority for Snow's Snow's nomination nomination under either by caucus caucus or primary election. Petitioner Petitioner asserts asserts that that Election Election Law Law §6-108 96-108 establishes establishes the sole primary election. either process and procedures procedures for party party nominations nominations for town town offices offices in New maintains that that process New York. He maintains under that statute statute party nominations in Dutchess Dutchess County, County, because fewer than than 750,000 750,000 under party nominations because it has fewer inhabitants, "shall "shall be made made by caucus caucus or primary election, as the rules ofthe county committee committee shall inhabitants, primary election, rules of the county provide ...."" As the Women's Women's Equality Equality Party Party does not have have a county county committee, committee, petitioner contends provide .... petitioner contends that there there was no lawful lawful basis hold a caucus caucus or primary Election Law §6-108, 96-108, thereby thereby that basis for it to hold primary under under Election precluding nominating Snow Snow as the Women's Women's Equality Equality Party Party candidate. candidate. precluding it from nominating Respondent Snow Snow opposes opposes the petition petition and asserts asserts a counter-claim counter-claim and and cross-claim cross-claim for an Respondent order requiring requiring the Dutchess Dutchess County County Board Board of of Elections Elections to validate validate a ballot ballot containing containing her name name on order Women's Equality Equality Party Party line. Snow Snow further further seeks seeks attorney's attorney's fees and costs costs alleging alleging this this is a the Women's frivolous proceeding. proceeding. frivolous Election Law§ Law 916-1 02( 1) confers confers upon upon this this court court jurisdiction over proceedings proceedings to contest contest the Election 16-102( jurisdiction over nomination or designation designation of of any candidate candidate for public office. Petitioner's Petitioner's challenge challenge to Snow Snow public office. nomination appearing as the Women's Women's Equality Equality Party Party candidate candidate for the office office of of Town Town of of Pawling Pawling appearing Councilmember constitutes constitutes a challenge challenge or contest contest to the designation designation or nomination nomination of of a candidate candidate Councilmember office. While While petitioner petitioner denominates denominates this proceeding seeking relief relief under under CPLR CPLR for public public office. proceeding as seeking Article 78 and §3001, 93001, it is in reality reality a proceeding proceeding under under Election Election Law§ Law 916-102(1). Scaringe v. Article 16-102(1). See Scaringe rd Dept 1986). Accordingly, Ackerman, 119 AD2d AD2d 327 (3 (3rdDept Accordingly, this this proceeding governed by the statute statute Ackerman, proceeding is governed of limitations limitations set forth in Election Election Law§ Law 916-102(2). Ciotti v. Westchester Westchester Cty Bd. of of Elections, Elections, of 16-102(2). See Ciotti nd Dept AD3d 988, 989 (2nd Dept 2013). 2013). undisputed that that petitioner petitioner did not commence commence the 109 AD3d It is undisputed proceeding within within fourteen fourteen days after after the last day to file the designating designating petitions issue as required required proceeding petitions at issue under Election Election Law§ Law 916-102(2). Accordingly, respondent respondent Snow Snow correctly correctly asserts asserts that that the proceeding proceeding under 16-102(2). Accordingly, nd Dept was not timely timely filed. See Haight Haight v. Knapp, Knapp. 88 AD3d AD3d 921 (2nd Dept 2013). 2013). Petitioner further capacity and standing standing to maintain maintain this proceeding. County Petitioner further lacks capacity proceeding. As the County Board of Elections creature of of statute, statute, it has neither neither an inherent common-law right Elections is a creature inherent nor a common-law right to bring bring Board of an action. action. See Graziano Graziano v. Ctv. Cty. of of Abany. Abany, 3 NY3d (2004). There enabling NY3d 475,478-79 475, 478-79 (2004). There is no enabling 2 2 of 4 [* 3] INDEX NO. 2018-52715 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/19/2018 legislation or other other statutory statutory predicate suit in his capacity capacity as maintain this suit petitioner to maintain authorizing petitioner predicate authorizing legislation Moreover, Dept2015). 2015). Moreover, a Commissioner of Elections. See Scannapieco Scannapieco v. Riley, 132AD3d 132 AD3d 705 (2ndnd Dept aCommissionerofElections. Election Law pursuant to Election he further further lacks standing to commence capacity pursuant that capacity proceeding in that commence this proceeding lacks standing of a filed reason of office by reason Article public office candidate for public of a candidate designation of nomination or designation The nomination Article 16. Id. The party any of chairman of petition "by any aggrieved party candidate, or by the chairman aggrieved candidate, court "by contested in this court may be contested petition may Petitioner 16-102. Petitioner Law § committee ...."" Election S16-102. Election Law objections .... have filed objections who shall have person who committee or by a person foregoing, upon Based does not fall under any of these categories and thus lacks standing. Based upon the foregoing, it is standing. lacks of these categories under does not ORDERED that the petition time-barred and for lack of of capacity capacity and dismissed as time-barred petition is dismissed ORDERED which upon which remaining grounds standing. In light of the foregoing, foregoing, the court address the remaining grounds upon declines to address court declines light of standing. respondent Snow seeks seeks dismissal. dismissal. It is further further respondent Snow Board County Board Dutchess County ORDERED Snow's cross-motion granted and the Dutchess cross-motion is granted respondent Snow's that respondent ORDERED that name contains the name that contains Election that of General Election 6, 2018 General November 6,2018 ballot for the November certify a ballot shall certify Elections shall of Elections Pawling of Pawling Town of of Town office of of Snow as the Women's candidate for the office Party candidate Equality Party Women's Equality Coleen E. Snow of Coleen there is a state Party, there Equality Party, Councilmember. Women's Equality County Women's Dutchess County there is no Dutchess Although there Councilmember. Although rules Those rules Elections. Those of Elections. party Board of County Board Dutchess County with the Dutchess were filed with which were rules for which party the rules party state committee exists, organized county provide, that where where no duly organized county committee exists, the party holds, that provide, and case law holds, NY2d 835 [1975]). may candidates for town Cooke v. Donohue,3 Donohue,377 NY2d [1975]). It is town office. Cooke nominate candidates validly nominate may validly further further denied. costs is denied. ORDERED Snow's cross-motion attorney's fees and costs cross-motion for attorney's respondent Snow's that respondent ORDERED that which of which proceeding of While maintaining this proceeding petitioner maintaining impediments to petitioner procedural impediments clear procedural were clear there were While there dismissed proceeding prior he should have been aware based upon his commencement of a prior proceeding dismissed on of commencement upon based aware been have should nd nd claims are not substantive claims similar 2011)], his substantive Dept 2011)], AD3d 921 (2 Dept Knapp, 88 AD3d Haight v. Knapp, grounds [See Haight similar grounds warranted. sanctions is warranted. of sanctions frivolous imposition of the imposition that the extent that frivolous to the extent Court. of the Court. constitutes the decision, and judgment judgment of order and decision, order foregoing constitutes The foregoing ee 2018 Dated: September ) 2018 Dated: September Poughkeepsie, York New York Poughkeepsie, New ENTER: ENTER: 3 of~ 4 MARIA ROSA, J.S.c. J.S.C. MARIA G. ROSA. [* 4] INDEX NO. 2018-52715 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/19/2018 Bouvier Law LLP Bouvier Law Main Street 350 Main Street NY 14202 Buffalo, Buffalo, NY Law, P.C. Treybich Law, Treybich 272 Mill Street Mill Street NY 12601 Poughkeepsie, Poughkeepsie, NY Marco Caviglia, Esq. Marco Caviglia, Cannon Street 47 Cannon 47 Street NY 12601 Poughkeepsie, NY Poughkeepsie, James M. Fedorchak, Fedorchak, Esq. James 22 Market Street Market Street NY 12601 Poughkeepsie, Poughkeepsie, NY only E-File System the E-File Scanned to the System only Scanned must be taken Pursuant to CPLR CPLR §95513, appeal as ofright of right must taken within within thirty thirty days after after service service by a 5513, an appeal Pursuant notice of written notice party appellant of of a copy copy of of the judgment order appealed appealed from and written of its judgment or order upon the appellant party upon notice written and order or judgment the of copy a entry, except served copy of judgment order written notice appellant has served the appellant when the that when except that thereof. thirty days thereof. within thirty taken within of must be taken appeal must entry, the appeal of its entry, 4 4 of 4

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