Matter of White v Sanin

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Matter of White v Sanin 2023 NY Slip Op 33453(U) September 22, 2023 Supreme Court, Suffolk County Docket Number: Index No. 623097/2023 Judge: Thomas F. Whelan 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. FILED: SUFFOLK COUNTY CLERK 09/22/2023 12:12 PM NYSCEF DOC. NO. 20 INDEX NO. 623097/2023 RECEIVED NYSCEF: 09/22/2023 INDEX No. 623097/2023 MEMO DEC ISION, ORDER & JUDGM ENT SUPRE ME COURT - ST ATE OF NEW YORK IAS PART 33 - SUFFOLK COUNT Y PRE SEN T: 9/22/2023 MOTIO N DA TE: 9/22/2023 SUBMI T DATE: Mot. Seq. # 001 - MD Mot. Seq.# 002 - MG N_ _ CDISPY X Hon. THOMA S F. WHELA N Justice of the Suprem e Court -----------------------------------------------------------------In the matter of AL VIN W. WHITE , Aggriev ed Voter, Petitioner, -againstREBEC CA L. SANIN, a purporte d candidate for the Public Office of Suffolk County Legislator, 16th Legislative District, ELIZAB ETH MANZE LLA AND JOHN ALBER TS, COMM ISSION ERS CONST ITUTIN G THE SUFFO LK COUNT Y BOARD OF ELECT IONS, RICHA RD H. SCHAF FER and DEBOR AH B. MONAC O , Presiding Officer and Secretary, respectively, of a meeting of the Suffolk County Democr atic Commit tee Executi ve Commit tee, Respond ents. [* 1] 1 of 5 X STEVE N E. LOSQU AD RO, P. C. Atty. for Petition er 649 Route 25A , Suite 4 Rocky Point, NY 11778 LAWRE CE H. SILVER MAN, ESQ. Atty. for Respt. Rebecca L. Sanin 350 Veteran s Memori al Highway Comma ck, NY 11725 A THONY LaPINT A, ESQ. Atty. for Respts. R. Schaffer and D. Monaco 200 Vanderb ilt Motor Parkway, Suite C-17 Hauppa uge, Y 11788 JAMES McMAN MON, ESQ. Atty. for Respt. John Alberts 486 Church Lane, PO Box 12 Aquebo gue, NY 11931 SUFFO LK COUNT Y ATTOR NEY X Atty. for Respt. Suffolk Cty. Bd. of Election s P.O. Box 6100 Hauppauge, NY 11788 FILED: SUFFOLK COUNTY CLERK 09/22/2023 12:12 PM NYSCEF DOC. NO. 20 INDEX NO. 623097/2023 RECEIVED NYSCEF: 09/22/2023 White v San in Index No. 623097/2023 Page 2 Upon the fol lowi ng pape rs numbered as indicated and read on th is motion for in junctive relief and cross motion (#002) to dism iss ; O rder to Show Cause (#00 I) an d supporting papers: NYSCEF Doc. Nos. 1-2, 6 Amended 1otice of Motion to Di smiss (#002) and support ing papers: YSC EF Doc. Nos. 16 17 ; Opposing papers : N YSCEF Doc. Nos . I 0, 14-1 5 ; Re ply papers _ _ ; Other Admin istrative Return (NYSCEF Doc. No. 18) ; and the oral argument held September 22 2023 ; the Court issues the following Memo Dec ision , Order & Judgment. Petitioner Alvin W. Whi te brings the instant action pursuant to Article 16 of the Election Law, Article 78 of the CPLR, and CPLR 3100 seeking to prohibit a substitute candidate for the Suffolk County Legislature's 16th Legislat ive District from appearing on the ballot for the 2023 General Election. The petitioner herein is the same petitioner in the related action of Matter of White v Joyner, Suffol k County Index o. 621346/2023, at 2023 Y Slip Op. 23280. In that action, this Court (Whelan, J.), on September 8, 2023 , granted the portion of the petitioner's CPLR article 78 proceeding seeking to prohibit the Suffo lk County Board of Elections fro m putting the initial candidate, Sidney B. Joyner, who does not live in the 16th Legislative District, on the ballot, finding that election officials neglected or refused to perform their ministerial duty of ascertaining whether he resided within the district in which he was seeking office, a requirement of the Suffolk County Charter. Shortly after the Court rendered its decision in White v Joyner, a Certificate of Substitution of Party Committee nominating Rebecca L. Sanin as the substi tute candidate for the office of Suffolk. County Legislator of the 16th Legislative District was signed by Respondents Richard H. Schaffer and Deborah B. Monaco, as the Presiding Officer and Secretary, respectively, of a meeting of the Suffolk County Democratic Committee Executive Committee. The certificate was filed at the Suffolk County Board of Elections on September 15, 2023 . ow in the instant action, the petitioner moves by Order to Show Cause (#001 ) seeking an order pursuant to Article 16 of the Election Law, Article 78 of the CPLR, and CPLR 3100 prohibiting and enjoining the Respondent Suffolk County Board of Elections from placing the name of Rebecca L. Sanin on the ballot as a candidate for the 16th Legislative District; barring Rebecca L. Sanin ' s name fro m appearing on the ball ot on any line as a candidate for the 16th Legislative District; and declaring invalid null and void the Certificate of Substitution by Party Committee filed on September 15, 2023 nominating Rebecca L. Sanin as a candidate for the 16th Legislative District. Respondent Rebecca L. Sanin, through counsel, filed a motion (#002) seeking dismissal of the proceeding. The crux of the petiti one r's argument is that, given thi s Court's Order dated September 8, 2023 in White v Joyner, the designati ng petition seeking to designate Sidney B. Joyner as a candidate for the 16th Legislative District was invalid upon its filing with the Suffolk County Board of Elections because he did not live in the di strict. The petitioner avers that a valid designating petition is a prerequisite to the creation of a vacancy, and, therefore, no substitution [* 2] 2 of 5 FILED: SUFFOLK COUNTY CLERK 09/22/2023 12:12 PM NYSCEF DOC. NO. 20 INDEX NO. 623097/2023 RECEIVED NYSCEF: 09/22/2023 White v San in Index No. 623097/2023 Page 3 of a candidate may be made here. In response, Respondent Rebecca L Sanin argues that a disqualification of a candidate for public office based on failure to comply with the residency requirement does not invalidate a designating petition, and, thus, the certificate to fill a vacancy nominating her as the substitute candidate is valid. The Court agrees with the Respondent. Ever since Grieco v Bader, 43 Misc2d 245 (Sup Ct Kings County 1964), affd 21 AD2d 751 (2d Dept 1964), the disqualification of a candidate based upon lack of residency in the district of the office sought did not preclude the substitution of another designee or nominee. The failure to meet the residency qualifications constituted a disqualification under the applicable Election Law provi sion and authorized the substitution of a qualified candidate. Such has been the holding of various courts since that time. In Venditto v Roth , 110 AD3d 908 (2d Dept 2013), a candidate for a Nassau County Legislative District, who did not meet the residency requirement of the Nassau County Charter, was disqualified from running, but the vacancy in the nomination could be filled, by substitution, in keeping with Election Law § 6-148(3). The Second Department held that his disqualification did not invalidate the designating petition. See also Handel v Maertz, 2010 WL 3613151 (Sup Ct Suffolk County 2010). The court in Grieco noted cases which prohibit a substitution, all of which involve the petition itself and not the designee or nominee. The combining of two defective petitions, where each lacked the requisite signatures, into one good petition did not permit the substitution of a candidate (see DiLorenzo v Heffernan, 187 Misc 766 [Sup Ct Kings County 1946] , affd 271 AD 802 [2d Dept 1946], affd 296 NY 687 [ 1946] ["The statute would seem to imply the existence of a valid independent nomination in which a vacancy has occu1Ted as a prerequisite to any valid action on the pai1 of the committee to fill vacancies"]). The lack of an authorization from the political party to a non-party member one seeks to run as a candidate of precludes a substitution (see Matter of English v Curan , 206 Misc 709 [Sup Ct Montgomery County, 1954] ; see also Plunkett v Mahoney , 164 AD2d 976 [4th Dept 1990]). The Court of Appeals in Matter of Owens v Sltarpton , 45 Y2d 794 (1978), clearly stated where no challenge is made to the signatures on the petitions themselves, the residency error did not preclude the naming of a substitute candidate. Only where the petition is invalid, as in Matter of Fotopoulos v Board of Elections, 45 NY2d 807 ( 1978), would the results be different. In that case, the candidate was not an enrolled member of the party for the required period and, as such, the petition was invalid. The Court of Appeals, once again, in Matter of Espada v Diaz, 98 NY2d 715 (2002), a case involving a prior determination of a residency disqualification, permitted a substitution naming a new candidate. Even an improper dual candidacy does not invalidate the underlying designating petitions [* 3] 3 of 5 FILED: SUFFOLK COUNTY CLERK 09/22/2023 12:12 PM NYSCEF DOC. NO. 20 INDEX NO. 623097/2023 RECEIVED NYSCEF: 09/22/2023 White v Sanin Index No. 623097/2023 Page 4 themselves, but merely disqualifies the named candidate from running on each such petition (see Scaringe v Greene, 72 Misc3d 293 [Sup Ct Albany County 2021] ; see also Lawrence v Spellman , 264 AD2d 455 [2d Dept 1999] [substitution permitted]). Petitioner relies almost exclusively on a recent holding from the Second Department that is, Matter of Farrandino v Sammut, 185 AD3d 992 (2d Dept 2020). In a holding two months prior, the Second Department disqualified the Republican Commissioner of the Board of Elections for Suffolk County from running for public office, holding he was barred by Election Law § 3-200(6) from being a candidate (see LaLota v New York State Bd. of Elections, 183 AD3d 785 [2d Dept 2020], lv to appeal denied, 35 NY3d 904 [2020]). Election Law § 3-200(6) is specific to an election commissioner and states that such an individual "shall not be a candidate to any election office ... unless he has ceased by resignation or otherwise, to be commissioner .... Otherwise such nomination or designation shall be null and void." The Second Department held that a leave of absence was insufficient under the statute. The subsequent substitution of a new candidate was upheld by the Hon. Joseph A. Santorelli , in a Short Form Order dated June 24, 2020, Matter of Farrandino v Sammut, (Sup Ct Suffolk County 2020), which found the underlying LaLota supra , holding to be a disqualification of the candidate, which disqualification can be remedied by Election Law § 6148. Such appears to be entirely in keeping with the above mentioned case law. However, the Second Department reversed, supra, holding that the ordered paragraph of the LaLota opinion had invalidated the designating petition, even though there was no challenge to the signatures therein or any claim of fraud in the petition itself What was a challenge to the candidacy of the elections commissioner and his personal disqualification became an event that precluded substitution certificates. The Court finds the Farrandino holding to be an aberration from the long-established case law that permits substitution, particularly in matters involving residency errors. Further, this Court notes that Election Law§ 3-200(6) declares the "nomination or designation" to be null and void, with no mention of the underlying petition itself. Contrary to petitioner's contention, this Court will not apply the Farrandino holding to the instant matter. At oral argument, the Petitioner relied on Glickman v Laffin , 27 NY3d 810 (2016). However, Glickman is inapplicable to the facts of this case. In Glickman, the Cou11 found that the candidate "lacked the requisite intent to establish residency for the five years required by our Constitution" (27 NY3d at 815). Moreover, Glickman did not address the issue of substitution of a candidate. The Court acknowledges the Cou11 of Appeals holdings that, where the original designating petition was void, there can be no substitution. However, in the September 8, 2023 holding of this Court in White v Joyner, the Court did not hold, and no proof was offered, that [* 4] 4 of 5 INDEX NO. 623097/2023 FILED: SUFFOLK COUNTY CLERK 09/22/2023 12:12 PM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 09/22/2023 White v Sanin Index No . 623097/2023 Page 5 the petition itself was improper in any manner. The special proceeding was directed at the failure of the Suffolk County Board of Elections to perform its ministerial duties, which was obvious on the face of the designating petitions. Under such circumstances, the Executive Committee of the Democratic Party has the right to substitute a qualified candidate for the disqualified candidate, and the respondent Board of Elections is authorized to print and place the name of Rebecca L Sanin, the substituted nominee, upon the official ballot of the General Election to be held November 7, 2023. Petitioner, having filed the requisite objections to the Certificate of Substitution, and based upon the exigent circumstances herein, possesses sufficient standing pursuant to Election Law§ 16-102(1). The remaining contentions either need not be addressed or are without merit. Therefore, based on the facts as set forth above, it is ORDERED AND ADJUDICATED that the petitioner' s Order to Show Cause (#001) to prohibit and enjoin the Respondent Suffolk County Board of Elections, and the Commissioners thereof, from placing the name of Rebecca L. San in on the ballot for the 2023 General Election as a candidate for the Public Office of Suffolk County Legislator, 16th Legislative District; bar Rebecca L. Sanin's name from appearing on the ballot on any line as a candidate for that public office; and declaring invalid, null and void the Certificate of Substitution by Party Committee filed on September 15, 2023 nominating Rebecca L. Sanin as a candidate for that office, is denied in its entirety; and it is further ORDERED AND ADJUDICATED that the motion (#002) by Respondent Rebecca L. Sanin to dismiss the special proceeding is granted solely for the reasons set forth above. This constitutes the decision, order, and judgment of the Court. DATED: [* 5] 5 of 5

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