Lynch v Duffy

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Lynch v Duffy 2019 NY Slip Op 31198(U) May 3, 2019 Supreme Court, Suffolk County Docket Number: 02095-2019 Judge: David T. Reilly 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] .. SUPREME COURT OF THE STATE OF NEW YORK I.A.S. PART 30 SUFFOLK COUNTY PRESENT: HON. DAVID T. REILLY, J.S.C. INDEX NO.: 02095-2019 _ _ _ __ _ _ _ _ __ __ _ _ __ _x Lawrence H. Silverman, Esq. GEORGE P. LYNCH, as Citizen Objector, Petitioner, Attorney for Petitioner 350 Veterans Memorial Highway Commack, NY 11725 -againstEILEEN M. DUFFY, purported candidate of the Democratic Party for the public office of Councilman of the Town of Southampton, SUFFOLK COUNTY BOARD OF ELECTIONS, ANITA S. KATZ, Commissioner of the Suffolk County Board of Elections, and NICK LALOTA, Commissioner of the Suffolk County Board of Elections, together constituting the SUFFOLK COUNTY BOARD OF ELECTIONS, Daniel L. Pagano, Esq. Attorney for Respondent E ileen M. Duffy 2649 Strang Blvd., Suite 303 Yorktown Heights, NY 10598 The Law Offices of Carl Andrew Irace & Assoc., PLLC Of Counsel to Daniel L. Pagano, Esq. 12 Gay Road, Suite 5128 _ _ _ _ _ _ __ _ __Respondents. _ _ __ _ ___x East Hampton, NY 11937 Dennis M. Brown Suffolk County Attorney Attorney for Respondents Suffolk County Board of E lections P.O. Box 6100 H. Lee Dennison Building 100 Veterans Memorial Highway Hauppauge, NY 11788 In this special proceeding petitjoner, George P. Lynch (Petitioner), a Citizen Objector, seeks an Order pursuant to Election Law § 16-102 to invalidate the designating petition for respondent Eileen M. Duffy (Duffy) as a candidate of the Democratic Party for the public office of Councilman for the Town of Southampton at the primary election to be held on June 25, 2019. According to the petition, and as confinned by the return of the Suffolk County Board of Elections (BOE), on April 4, 20 J 9, two documents were filed with the BOE. The first is identified as designating petition D 19-24 which names, inter alia, Duffy as a candidate of the Democratic Party for the public office of Councilman for the Town of Southampton. The second designating petition, identified as DI 9-55, lists, inter alia, Duffy as candidate of the Democratic Party for the public office of Trustee for the Town of Southampton. (Emphasis supplied). Notably, the cover sheet to this laterreferenced designating petition lists only four (4) trustee positions, rather than the five (five) positions listed on each of the sheets which comprise the designating petition. Conspicuously missing from the Page 1 of 8 [* 2] cover sheet is Duffy's name and her camlidacy for Trustee. Petitioner claims here lhat an individual may not serve as a Town Councilman and Town Trustee at the same time and. therefore, by causing designating petitions to he.: filed for thcsc incompatible onices. Duffy has committed election fraud. Petitioner also claims that Duffy is guilty ofelection fraud as voters were misled by the inclusion ofcandidates on her designating petition, D 1924. who did not consent to run together with her. Petitioner timely filed general and spcci lie objections to designating petition DI 9-24. The BO E's return shows that on April 8, 20 19 Duffy filed a Certilicatc of lkdination for the Democratic Party nomination for the pub I ic onicc of Trustee for the Town of Southampton. The l~ 01 ~ ·s supplemental return provides the April 26. 201 9 minutes of a special meeting of the BO! ~ in which a motion was offered finding the petitioner's spcci lie objections insufficient and the designa! ing petition naming Duffy as a cand idate for the Public Office of Councilman, Town of Southampton ( DI 9-24) valid. The motion failed by a split decision and as a result the designating petition was deemed valid. On April 24. 2019, the original return date of lhis special proceeding. Duffy appeared and requested an adjournment in order to obtain counsel. [n add1tion, the Court was advised that the BOE would issue its decision on the specific objections on or before /'\pril 29. 2018. Therefore. Lhc matter was adjourned to that date. On the adjourn date, Duffy appeared hy counsel and submitted an answer with affirmative defenses which included, among other things. her claim that the papers which were served on her did not contain an index number. Accordingly. Duffy maintains that Petitioner violated CPLR 305(a) and claims a jurisdictional dclecl rendering the petition void. Duffy also argues that Petitioner failed to properly plead his fraud claim with sufficient speci Ii city in violation of CPLR 3106. The Court reserved decision on Durl)r's affirmative dcfonses and proceeded to a hearing on this matter. During the hearing . .John V. Bouvier and Andrew J. Brosnan testi lied on behalf of Petitioner. Each of the witnesses are seeking public office in the Town of Southampton, for Councilman and Trustee respecti vely, and their names were listed as candidates on the designating petition bearing Du ffy's name for the position of Councilman (D 19-24). Each witness stated that they did not give Du rt)' consent to place their names on that designating petition. Both nouvicr and Brosnan 's names also appear as candidates on another designating petition lilcd with the BOE in which Duffy is lislc<l as a Democratic Party candidate for the public oflice of Trustee (Dl 9-55). Mr. Bouvier scrvc<l on the Southampton Democratic Party's scrceni ng committee and understood that Ms. Duffy was seeking the position of Trustee. /\l the Party's convention he recalls Duffy accepting the nomination as candidate for that position. Mr. 11ouvicr further recalls having conversations with David B. Mayer. another candidate who appears on hoth sets or petitions. in March 20 J 9 where. the witness stated. he may ha\'e lcamcc.l that Duffy was circulating a designating petition \\ith her name listed for the public office of Councilman and not that of Trustee. Mr. Bouvier made no request or Duffy to remove his name from her designating petition. Page 1 ol' 8 [* 3] Both Brosnan and Bouvier were credible witnesses dt:spi tc their di fficultics in recalling. C\'Cnts which would have given them notice of Duffy"s effons to force a primary to he one or the Southampton Democratic Party"s candidates for C'ouncilman. Ms. Duffy testified that she was invited by the Southampton Democratic Party"s Chairman. Gordon I Ierr. to screen to be the organ ization· s nominee for the public office of both Councilman and Trustee. She acknowledged that at the Party· s convention she accepted its nomination fi.>r the position of Trustee. She is an elected Democratic Committccperson and obtained a copy or the designating petition being circulated by the Southampton Democratic Committee. Duffy later determined that she would seek the Democratic Party"s designation as its candidate for Councilman and cause a primary. She alleged ly secured alternate designating petitions removing her name as a candidate for Trustee and inserting her name as candidate for Councilman. In doing so she removed the Democratic Party's other designated candidate's name. Craig Catalanotto, as a candidate for Councilman. While Duffy admits that she did not publicize her efforts to force a primary against the organization·s candidates, she did not conceal this fact eilhcr. Duffy was apparently concerned that the Democratic Party would canvass Southampton Town election districts and obtain signatures from the party faithful. thereby making her effon to obtain Democratic signatories more difficult. She claimed that approximately one quarter of the Southampton Town Democratic Committee knew she was seeking the Councilman designation. Ms. Duffy stated that she met with David B. Mayer and provided him with a copy of the petition ~he was circulating. Dur(yexplaincd that !'>he supported the candidates listed on her designating petition and wanted to gather signatures for them while she was collecting signatures for hersclr. She knew that if succcssrul she would force a primary for the Southampton Democratic Party's candidates for Counci lman. Duffy admits that she never sought the permission of the other candidates named on her designating petition to list their names together with hers. Ms. Duffy testified that during the designating pelition process. less than ten (I 0) voters she spoke to recognii'ed the candidate's name for Southampton Town Supervisor, the incumbcnl Jay Schm:iderman. She explained that she would advise perspective signers that sbc supported the candidates on her designating petition, but was forcing a primary for the public office or Councilman. Duffy identi lied an email dated March 14. 2019 from the Southampton Tnwn Democratic Committee wherein its Chairman advised the Committee mcmbe::rs that Duffy was circulating her own designating petition for Town Council and that certain names of the party organization·s candidates appeared along with her name. The Chainnan stated in the email that th<.:sc orga11i;1ation candi<lates did not give their permission for their nanH.:s to be placc<l on Duffy's d~signating p~: t ition. Ms. I)ufly 1urthcr testi lied that the 11rder to show cause and 'cri lied pcti tiort \\ ,1ich \\ere scrn:d upon herdid not have an index numher. nordid theverilied petition shmvthedatcor iling. P(·titioncr stipulated that the index number did not appear on either the order to show cause or the verified petition !'>crved on Duffy. l\:tititH1er·s attorney reviewed the papers served on Dufl)' and marked the request forjudicial intervention (RJI) contained therein for identification. It was thHed that the R.11 Page 3 of 8 [* 4] included the index number for the verified petition. PERSO AL JURISDICTION Petitioner's failure lo include an index number or date of filing on the veri lied petition or order show cause docs not require dismi!-.sul or the proceeding absent demonstrable prejudice 10 respondent (see llarris v Williams, 264 A02d 453, 694 NYS2d 144 j2d Dept. 19<)<) !), cit in~ Matter of City of A msterdam v Board of Assessors oftlte Town of Providence, 237 AD2d 63. 667 NYS2d 493 j3d Dept. 19981). fn the instant maller. the record reveals that Petitioner purchased an index m1111bcr. filed an order to show cause with verified petition annexed. which was signed hy a Justice of the Supreme Court I Leo, .I.] and was otherwise timely served upon Duffy. Accordingly. Pctition<.:r's failure to affix the index number or. where necessary, the date or filing on the -;ubjcct papers is excusable under the circumstances. to PI .EA DING FRAUD Duffy claims that Petitioner's pleadings fail to plead fraud with sufficient specilicity as required under CPLR 93016. That statute provides, at subsection (b ). Fraud or mistake. Where a cause ofaction or defense is based upon misrepresentation, fraud. mistake. wilful default, breach of trust or undue inOucnce, the circumstances constituting the wrong shall be stated in detail. fn Waugh "· Nowicki, I 0 AD3d 4]7, 780 NYS2d 737 l2d Dept. 20041) the Ar•pcllate Division sustai ned the trial courrs dismissal ofan Flection Law case for failure to plead fraud with the requisite spcci licity. In that case the trial court noted that the entire petition contained I 59 signatures and found that it 1.,vould not be too burdensome forthc petitioners to identify those signatures which were claimed to he fraudulent (see Matter of Waugh "Nowicki, 4 Misc.3d JO I4(A). 798 NYS:!d 149 ISup. Ct.. assau Cty. '.2004 I). f Iere. Petitioner alleges that each and every one of the 537 signatures collected were invalid by reason of the election fraud commiued by Dull)1 when she included her name on the same designating petition with other candidates fo r publ ic office without their knowledge or consent (see Court Exhibit I. Petition, ii 14). Although not detailed in the body oflhc petition. Petitioner also alleges that Du n)' committed ckcl ion rraud when "he mused her nairn.: to appear on two separall.: designating petitions as a candiuah.: l(ir two (2) incompatible offo.:es. Petitioner incorporated in his petition by n.:kre11c.: ant! attached thcrett• his speci!ic objections lilcd with the ROE that contained the affirmation of Lawrence 11. Sihcrman. Esq. which states in relevant part. Upon information and bclicL Eileen M. Duffy caused to he prepared rn1d circulated for signatun.:s l\;tition D 19-2-+ al'tc.:1 accepting the <lcsignation the Southampton Town Dcmm:ratic ( 'ommillce for the public oflice of Trustee. or Page 4 of 8 [* 5] Upon information and belie( Eileen M. Duffy did not seek the <.:0nsc11t of some or all of the candidates listed on Petition [) 19-24. Upon information and belief, the voters or the Town of Southampton were deceived by the appearance of the candidates on Petition D 19-24 into believing that they were supportive of the candidacy of Eileen M. Duffy for the public of'fice or Councilman. Upon information and belief, as a matter oflaw, Eileen M. Duffy cannot be a candidate for the Public Office of Councilman and Trustee simultaneously. (s<!<! Court Exhibit 1, Petition. Specification of Objections, Attorney Aflim1ation). The pleading requirements of CPLR 3016(b) apply to matters commenced pursuant to the l ~lcct i on Law (see f{eneralfy Waugh v Nowicki, supra, at 437; Eccles v Gargiulo, 497 F.Supp. 419 (EDNY 19801). In the case at bar, many of the facts and circumstances of the alleged fraud arc uniquely within the knowledge of Duffy. It is her alleged actions. or those authorized by her. which constitute the claims of fraud that were clearly placed at issue hy Petitioner. The Court finds. based upon the foregoing, that the petition provided Duffy with the notice of the fraud cla im(s) in a manner sufficient for her to be able to defend against them. PETITIONING FOR rNCOMPATJBLE OFFICES Tt is well settled that one may not simultaneously run for two public offices where one would be precluded from holding both offices at the same time (see Matter of Lutfy v. Gtmgemi, 35 NY2d 179, 359 NYS2d 273 119741; Lawrence v. Spelman, 264 AD2d 455, 694 NYS2d 143 I2d Dept. 1999 /). I Icre. no proof was offered by either side that the positions of Councilman and Trustee in the Town of Southampton m·e incompatibl e. ln Dufl)t's verified answer, however, there appears t.o be an acknowledgment of the issue, but she claims the issue is moot (see Court Exhibit I. Duffy Answer. if23-24 ). Since the matter was not contested the Court deems the two offices as incompatible. With respect to fraud. the Court notes Matter of Lutfy v Ga11gemi, where the candidate attempted to run in all 25 election districts as a County Committeeman. but knew that he could only serve in one district (see Matter of Lutfy v. Gangemi. 45 J\ D2d 939, 359 NYS2d 319 r2d Dept. 1974. Shapiro and Benjamin, JJ., disscntingl)- The Court of Appeals later held in Matter of Lu((}• v Gangemi. Since this multiplicity of in(.;onsist01H (.;an<lidacics has been properly n;cngniz~d as injurious to thc rights or the electorate. and described as fraudulent and clcccptivc, and hccausc here the multiplicity of inconsislcn( candidacies ror the County Conunittec was inccntional. the dissenters at the /\ppcllatc Division were correct in concluding that n:spon<lcnts' designating petitions should fail entirely (see Matter of Lutfy v Gangemi. 35 NY2d 179, 182, 359 NYS2d 273 11974 J ). Page 5 of 8 [* 6] Prior to the Court of Appeals decision in Matter of Luffy, where there was a timely declination or one orthc two ofliccs being sought. courts had allowed the candidate to run for the remaining ortic.c (see Trongone v 0 'Rourke, 68 Misc. 2d 6, 324 NYS2d 620 I.Sup. Ct. NY Cty, 19711. ujf'd 37i\D2nd 763. 314 N YS2d 295 f Ist Dept. 19711). Tn Tro11go11e the trial court noted. Equating the instant case lo !Matter of Ryan v Murrayj, even if it is consi dered that the mcihod indulged in by the respondent was an artifice or device which could be construed as deception or fraud of the enrol led members of the party, he should have the right to present his candidacy to the electorate. I le has properly declined to run in one part and has secured val id signatures entitling him to run in the other To hold otherwise would deprive the electorate of both pai1s from expressing their wishes by their ballots as to whether they would want him as a leader in either district and virtually leave the primary uncontested. Courts in the absence of statute, should not undertake to decide political questions, but should leave such matters for determination of the proper party tribunals. Nor arc decisions which deprive the electorate of the opportunity to express its prcforcncc favored if by a liberal construction of the law and facts, an election can be held (see Id., at 8). However, in Lllwrence v Spelman (264 /\02d 455, 694 NYS2d 143 12d Dept. 1999j), the candidate respondent filed designating petitions for County Committeeman and judicial office. The Appellate Division. Second Department struck the candidate's name from both primaiy ballots citing Matter of Bums v. Wiltse (303 NY 31 9 f1951 I) and Matter of Lutfy v. Gandemi 35 NY2<l 179 [ 1974 J) and explained. Such a prohibition allows electors to ''knovv that, when the choice is made and legally declared, the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will ... from becoming effective'' f internal citations omittedJ. An election involving the situation presented here, "would be illusory and sham if not an actual fraud upon the electorate and should not be permitted'' [internal citations omittedl. In addition. the Appellate Division. Second Department held in Ric/111rdwm v. Luizw (64 i\D2d 942. 408 NYS2<l 532 12d Dept. l 9781). ;\fraud was committed on the enn>lled voters of the party when the names of various candidates were placed on the designating petition without their conscnl. The petition wns rrnslcading in that it suggested that the various candidates Iistcd togethi..!r inkndcd to run together (sec Matier qli.1(/(1• 1•. Uanxemi. 35 NY2d 179). Consent mny not be implied merely [i·om the fact that the nont.:onsenting candidates were pat1y mcmlx:rs. Furthermore. the consenting candidates who do not wish to serve shoul d not be burdened with the obligation or submitting a declination once they learn of their Page 6 of 8 [* 7] candidm.:ies (Id., at 941 ). FINDINGS OF FACT ANU CONCLUSIONS OF LAW The Court finds that Duffy was a credihle witness. She is a novice political candidate and seemingly became uncomfortable with the Trustee candidacy being offered to her by the Southampton Democratic Party. Respondent decided on her own to run for Councilman and secured an alternate designating petition, removing one candi<late for Councilman and inserting her name. Duffy further removed her name as a candidate for Trustee and inserted another name in her stead. She and others then circulated this designating petition. There is no proof that Duffy or her agents intentionally mislead the enrolled party mcmhers when collecting signatures for her designating petition (D29-24). Duffy claims shc told prospective signers that she supported the other candidates on the designating petition and w:.intcd to force a primat)' for the position of Councilman. fn the case at bar, there is no egregious conduct as was found by the Court of Appeals in Matter of Lutfy. but rather this Coun views the situation as Duffy having a change of heart early in the pclition process. Why Duffy waited till April 4, 2019 to formally decline the Trustee position is unknown to the Court. The Court cannot determine based upon the record before it \'vhcthcr Dull)' was unsure if there were enough signatures lo place her on the primaiy ballot for Councilman and maintained her candidacy for Trustee until the declination was tiled to. in a sense. "hedge her bet."' Duffy admitted that she did not receive consent from the other candidates appearing on her designating petition prior to them being circulated. There was no evidence that Duffy was ever asked to remove a candidate's name from her desi gnating petition. ft is clear that the Town Chairman knew ahout Duffy's designating petition being circulated and the organization's candidate's lack of consent. hut ch1Jsc to do nothing al that time. Notwithstanding Dufr)r's claims lo the contrary, the candidates named on her designating petitions received no benefit from the fili ng nf her petition. Each of these candidates appeared on the organi/.ed party"s designating petition which were filed sl!paratcly and never joined in this proceeding ( n•e ('(nirt Exhibit I. BOE Return). fn a casc lacking in thl! auducious conduct found in !'. futter of Luffy ('.15 N Y2d 179 11974 I). this Cnurt questions whether there exist:; an avenue for a candidate who timely declines on one <.ksignating petition for publk onicc to remain 011 the sccom.l Jcsignuting petition l~)I· public office. 1 On the focls presented in this proceeding. the Court finds that the law simply docs not provide such an opportuni ty. The Court of Appeals in Matter of Luffy held . ... ITlhc voters who signed the offending petitions must he assumed to h<..vc been Page 7 of 8 [* 8] misled as to the candidates' intentions to serve as their representatives irdcsignatcd and subsequently dcctcd at the primary. Moreover, the petitions were misleading in suggesting that the various candidates listed intended to run together. *** Thus. the petitions must be considered to have been permeated with the dcfoct intentionally introduced into them by the circulator.s and those candidates who participated in the circulation (ld. . at 182). Petitioner presented clear and convincing evidence that Duffy knew her name appeared on two (2) separate designating petitions for two (2) incompatible public offices. Duffy failed to decline the designation for Trustee during virtually the entire designating petition circulation process and. therefore. knowingly allowed the enrolled voters to be misled as to which of the ol'ficcs she was truly seeking. There is presumption on these facts that Duffy misled the enrolled voters or the Democratic Pa11y and she failed to rebut this presumption by public action and/or filings in such a manner as to prevent election fraud. While her declination for Trustee was timely under the Election Law, that tiling docs nothing to extinguish the election fraud Duffy committed, intentionally or unintentionally, upon the enrolled voters during the circulation of the designating petitions. Therefore. based on the above, it is ORDERED the petition is granted and designating petition D 19-24 is determined to be invalid and void. This constitutes the decision and Order of this Court. Dated: Mav 3, 2019 Riverhead, New York JllSTfn: OF Tll E SUPREME X FfN/\L DISPOSITION Cot Jiff - - - NON-F IN/\l , DISPOSTTIO Page 8 of 8

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