Matter of Eisemann v Kosinski

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Matter of Eisemann v Kosinski 2023 NY Slip Op 33240(U) September 1, 2023 Supreme Court, Albany County Docket Number: Index No. 907918-23 Judge: Thomas Marcelle 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. INDEX NO. 907918-23 FILED: ALBANY COUNTY CLERK 09/01/2023 01:02 PM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 09/01/2023 At At a a term term of of the the Supreme Supreme Court Court of of the the State State of New York held of of New York held in in and and for for the.County the County of the on at Courthouse Albany at the Albany County Courthouse on Albany Albany County the 1 1 day of September September 2023. the 2023. day of SUPREME COURT SUPREME COURT COUNTY OF ALBANY ALBANY COUNTY OF STATE OF NEW YORK STATE OF NEW YORK In the the Matter Matter of the the application application of In of of ALEXANDER E. EISEMANN, Candidate Aggrieved ALEXANDER E. Candidate Aggrieved EISEMANN, Petitioner, Petitioner, DECISION, ORDER · ORDER DECISION, & JUDGMENT &JUDGMENT Index No. 907918-23 Index No. 907918-23 -against-against- PETER S. KOSINSKI, DOUGLAS A. KELLNER, DOUGLAS A. PETERS. KOSINSKI, KELLNER, ANDREW J. SPANO SPANO and ANTHONY ANTHONY ANDREW J. and J. J. CASALE, CASALE, IVETTE York Commissioners of the New State IVETTE CALISE, Commissioners of the New York State CALISE, Board of Elections; TAJIAN M. NELSON and of TAJIAN M. NELSON and Board Elections; A.. COLETY, DOUGLAS A. Commissioners of the DOUGLAS Commissioners of the Westchester Westchester COLETY, Board of PIETANZA and County Board of Elections; KATHLEEN M. KATHLEEN M. PIETANZA and Elections; County PATRICIA A. GIBLIN, Commissioners of the the Rockland Rockland PATRICIA A. Commissioners of County GIBLIN, County Board of LOUISE VANDEMARK and Board of Elections; LOUISE VANDEMARK and Elections; COURTNEY CANFIELD Commissioners of the the COURTNEY CANFIELD GREENE; Commissioners of GREENE, Orange County Board of Elections; HANNAH BLACK and Orange Board of HANNAH BLACK and Elections; County ERIK J. HAIGHT, Commissioners of the the Dutchess Dutchess Board ERIK J. Commissioners of County Board. HAIGHT, County of Elections; CATHERINE P. CROFT and KELLY K. PRIMA of CATHERINE P. CROFT and KELLY K. PRIMA VERA, Elections; VERA, Commissioners of the the Putman Putman of Elections; Commissioners of County of Elections; County FRANCIS A. NICOLAI, Officer of the the 2023 2023 Judicial Convention FRANCIS A. NICOLAI, Presiding Officer of Judicial Convention Presiding for Ninth Judicial District; SUZANNE M. Convener of for the the Ninth Judicial SUZANNE Convener of the the M. BERGER, District; BERGER, 2023 2023 Judicial Convention for Ninth Judicial District; . Judicial Convention for the the Ninth Judicial District; HARRY P. BITTKER, of the the 2023 2023 Judicial Convention for the the HARRY P. Secretary of Judicial Convention for BITTKER, Secretary Ninth· Judicial District; . Ninth Judicial District; YORK STATE NEW YORK DEMOCRATIC PARTY; JAYS NEW STATE DEMOCRATIC JAYS JACOBS, JACOBS, PARTY; Chair of New York State Party; CHRISTINE QUINN, Chair of the the New York State Democratic Democratic CHRISTINE Party; QUINN, Executive Committee Chair of New York State Party; . Executive Committee Chair of the the New York State Democratic Democratic Party; FRANCESCA E. CONNOLLY, CHARLES FRANCESCA E. CHARLES F. F. WOOD, CONNOLLY, WOOD, ROLF and LARRY for the the M. THORSEN THORSEN LARRY J. SCHWARTZ, Candidates ROLF M. and J. Candidates for SCHWARTZ, of of Court of New York, Public Office Public Office of Justice Justice of the the Supreme Supreme Court of the the State State of of New York, 9th Judicial Judicial 9th District, District, Respondents. Respondents. 11 [* 1] 1 of 4 . . INDEX NO. 907918-23 FILED: ALBANY COUNTY CLERK 09/01/2023 01:02 PM NYSCEF DOC. NO. 50 APPEARANCES: APPEARANCES: RECEIVED NYSCEF: 09/01/2023 petitioner Alexander E. E. Eisemann, Eisemann, Esq., Esq., New New York, petitioner pro pro York, se se Alexander Abrams Fensterman, Fensterman, White Plains (Robert A. Spolzino, White Plains (Robert A. Spolzino, for Esq.) for Respondents Francis A. Nicolai, Suz.anne M. Respondents Francis A. Suzanne M. Nicolai, Esq.) Berger, and Harry P. Bittker and P. Bittker Berger, Harry Law Office Law Office of Jeffrey W. Ossining (Jeffrey W. Gasbarro, Gasbarro, of Jeffrey Ossining (Jeffrey W H Gasbarro, for Francesca E. W.H. Esq.) for Respondents Francesca E. Respondents Gasbarro, Esq.) Connolly, Charles D. RolfM. and Charles D. Wood, Rolf M. Thorsen, and Larry Connolly, Wood, Thorsen, Larry J. Schwartz Schwartz J. Abrams Thomas Marcelle, J. Thomas J. Marcelle, heard on August stated The heard oral on 25, and, stated on The court court oral argument argument August 2023 for the the reasons reasons on the the 25, 2023 and, for record on August August the court court dismissed petitioner's for lack lack of of standing (see Dkl record on 2S, dismissed petitioner's proceeding proceeding for (see Dkt. 25, the standing 31). After the court court issued its bench petitioner for an an opportunity to make make a No. 31). After the issued its bench decision, petitioner asked for to a_ asked decision, opportunity No. motion for to his petition. The granted petitioner's request permitting motion for leave leave to amend amend his petition. The court court granted petitioner's request permitting to submit submit his motion letter with an opportunity to respond. petitioner to his motion by letter with an for to for respondents respondents respond. by opportunity petitioner Petitioner then made made the instant instant motion to renew renew court's for the motion to and to the order, and and reargue, to vacate vacate the court's and for Petitioner then reargue, order, leave to (Dkt. Nos. 32-40). Respondents submitted responsive papers (Dkt. Nos. 41-44, leave to amend amend (Dkt. Nos. 32-40). Respondents submitted responsive papers (Dkt. Nos. 41-44, reply" in reply" (Dkt. (Dkt. 46-48). Petitioner then filed filed a letter letter 46-48). Petitioner then a "previewing arguments to be raised in No. 45) arguments to be raised No. "previewing 45) later aa reply memorandum (Dkt. No. 49), the did and and then then hours hours later that that same same day filed memorandum which the court court did (Dkt. No. 49), which day filed reply In any not permit. In for reason, petitioner's motion is not permit. for the the following petitioner's motion is denied. denied. event, reason, any event, following that has has been dismissed cannot be dismissed the a petition petition that been dismissed cannot be amended. Having dismissed the First, amended. First, Having the _court court has no no authority to grant grant leave to serve serve and a second second amended petition petition, the has to leave to amended petition and file file a authority petition, (Carpenter v. Plattsburgh Wholesale 83 AD3d AD3d [3d Dept Dept (Carpenter v. Plattsburgh Wholesale Homes, Inc., Inc., 83 1175, 1177 2011]; 1177 [3d Homes, 1175, ; 2011] 208 AD3d AD3d 108 [1st Favourite Ltd. Ltd. v. 208 99, 2022]). v. Cico, [1st Dept Dept 2022]). Cico, 99, 108 Favourite to Election Election Law Article commenced Second, aa proceeding proceeding pursuant pursuant to Law 16 be commenced "by Article 16 may Second, "by any any may be aggrieved or by the chairman chairman of any who shall aggrieved candidate, or by the of party committee or by aa person person who shall have committee or by have candidate, any party 2 2 [* 2] 2 of 4 FILED: ALBANY COUNTY CLERK 09/01/2023 01:02 PM NYSCEF DOC. NO. 50 INDEX NO. 907918-23 RECEIVED NYSCEF: 09/01/2023 objections" filed (Election filed objectionsn (Election Law§ [l]). If petitioner does one Law § 16-102 16-102 [1}). If the the petitioner does not not fall fall within within one of of these these no there is no standing, and the the petition be dismissed categories, there is and petition must must be dismissed (Matter (Matter of Wood v. v. Castine, categories, standing, Castine, of Wood [3d Dept 66 AD3d AD3d 1328 [3d Dept 2009]). The proposed falls within 66 1326, 1328 2009]). The proposed petitioner petitioner falls none of within none of the the classes classes 1326, of persons who in s1:1ch such a have a proceeding. of persons who have standing in proceeding. . standing the proposed claim is untimely. Election Third, the proposed petitioner's petitioner's claim is Election Law§ (2) aa untimely. Law § 16-102 16-102 requires Third, (2) requires claim a certificate certificate of nomination nomination claim alleging that that a of is to be interposed within 10 is invalid invalid to be interposed within the 10 days days of of the alleging date of of the the convention. convention. the convention convention held date Here, the was on 10, and proposed was held on August August 2023 and the the proposed Here, 10, 2023 did not not interpose interpose her claim claim until.August 2023. petitioner did her until.August 28, Compliance with Election Law·§ Compliance with Election Law § 28, 2023. petitioner 16-102 is a a jurisdictional 16-102 is jurisdictional requirement (Matter a/Scaringe v. Ackerman, 119 327,333 requirement (Matter v. Ackerman, 119 AD2d [3d AD2d 327, 333 [3d of Scaringe Dept Dept 1986], aff'd, 68 NY2d 885 and has to that 68 NY2d 885 [19861); and the the Court Court has no no authority to extend extend that time time 1986], aff'd, [1986]); authority Westchester Bd (McCrory vv Westchester County Bd. of Elections, 216 857, 20231). The 216 AD3d AD3d 859 [2d [2d Dept Dept The 2023]). 857, 859 (McCrory County of Elections, • I back" "relation doctrine does not not save "relation back" doctrine does untimely claim (Matter of Aguirre vv Hernandez, Hernandez, 131 save the the untimely claim (Matter 13 of Aguirre AD3d 717 [2d [2d Dept Dept v. Ghartey, 131 AD3d AD3d 716, 2015]; Matter of MacKenzie v. 131 638, [2d Dept AD3d 639 [2d Dept 716, 717 ; Matter Ghartey, 2015] 638, 639 of MacKenzie Williams 2015]; Matter of vv Rensselaer Rensselaer County Bd of Elections, 98 938,939 98 AD2d AD2d Bd [3d Dept Dept 939 [3d ; Matter 938, 2015] of Williams County of Elections, affd 1983], aft'd sub sub nom. nom. Matter Matter ofofQuinn Quinn v. 61 NY2d NY2d 730 v. Tutunjian, 61 730 [1984]). [1984]). 1983], Tutunjian, Fourth, the proposed second amended petition fails to The has the proposed second amended petition fails to state state a a claim. claim. The court court has already Fourth, already dismissed petitioner's claim for lack lack of of standing because petitioner in ineligible dismissed petitioner's claim for because .petitioner in to ineligible to serve serve as as a a standing Justice of the the Supreme Justice of Court because he not be less of the of Supreme Court because he will will not be less than than 70 70 years years of age age when when the term term of service begins on January service begins on 1, (see Law§ NY Const art Law 2024 (see Judiciary Law § 23; Const art VI,§ Election Law 1, 2024 23; NY VI, § 20; 20; Election January Judiciary 6-122). the petitioner § Substituting the petitioner does change th~s does not not somehow somehow change this reality. reality. § 6-122). Substituting the only relief the proposed seeks is is a a new new convention. convention. Election Law § Finally, the relief the proposed petition petition -.~eeks Election Law Finally, only § provides however the court 16-102(3) provides however that can aa new only upon finding that that the court can order order new convention convention upon that 16-102(3) only finding "there has been such fraud fraud or irregularity as to render "there has been such or as impossible aa determination as to render impossible determination as to to who who irregularity 3 3 [* 3] 3 of 4 FILED: ALBANY COUNTY CLERK 09/01/2023 01:02 PM NYSCEF DOC. NO. 50 . . INDEX NO. 907918-23 RECEIVED NYSCEF: 09/01/2023 elected." even rightfully was was nominated nominated or or elected." There There appears to to be be no no basis basis for for such such a a finding here, appears here, even finding rightfully if all all of of the (Matter if the factual factual allegations allegations in in the the proposed proposed petition petition were were true true (Matter of Limpert vv Brandt, Brandt, of Limpert 165 AD3d AD3d 1472 [3d Dept Dept 2018]). 165 1469, 1472 [3d 2018]). 1469, Regarding the the motion motion to renew renew and reargue, it is is without without merit. The court court did not not to and it merit. The did reargue, Regarding State ofNew overlook or any facts law vv State of New York, overlook or misapprehend misapprehend relevant facts or or controlling law (Adderley York, (Adderley any relevant controlling 35 AD3d AD3d 1043-1044 [3d Dept 2006]). 35 1043, 1043-1044 [3d 2006]). Dept 1043, Therefore, it it is is Therefore, vacate the court's court's that petitioner's motion to renew renew and reargue, to vacate ORDERED, that petitioner's motion to and to the order, order, ORDERED, reargue, and for for leave leave to amend amend is denied denied in its its entirety. entirety. and to is in The foregoing shall and Judgment Judgment of the the Court. Court. The shall constitute the Order, and of constitute the Decision, Decision, Order, foregoing k Dated: September 2023 Dated: September 1, 1, 2023 Thomas Marcelle Marcelle · <F"'-r, ~ the Supreme Supreme Court Justice of the Justice of Court ~•~ 09/01/2Uzd 09/01/2023 Thomas respondent is constitute the Decision, Counsel for respondent This shall Order and Judgment-of Judgment of the the Court. Court. This shall constitute the Order and Counsel for is Decision, this petitioner with a directed to enter enter this Decision, Order and Judgment Judgment without notice and to to serve serve petitioner with a directed to Order and without notice and Decision, of entry. entry. with notice of The will transmit.a copy of Order and · copy, with notice The Court ourt will transmit,a of the the Decision, and Judgment Judgment Order copy, Decision, I copy The signing Order considered of the the Decision, and the the papers to the the County Clerk via NYSCEF. and papers considered to Clerk via NYSCEF. The of Order Decision, County signing under CPLR Rule Rule and Judgment Judgment and delivery of a a copy of it it shall shall not constitute constitute for filing and and of of not entry for under CPLR entry delivery filing copy not relieved 2220. Counsel is not relieved from the applicable applicable provisions of that that rule 2220. Counsel is from the provisions of filing, entry rule respecting filing, respecting entry and notice of entry and of notice entry Papers Considered: Papers Considered: Dkt. Nos. 32-49 on NYSCEF Dkt. Nos. 32-49 on NYSCEF 4 [* 4] 4 of 4

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