Opinion
003879/2021
04-30-2021
Rick LECHOT, et al., Petitioners, v. David MILEHAM; Dawn Kammerdeiner; Sean Rautenstrauch; Ricky Davis; Darrin Ziemba; Kevin Hardwick; Howard Johnson; April McCants-Baskin; Lisa Chimera; John Bargnesi, Jr; Jeanne Vinal; Tim Meyers ; John Gilmour; India Walton; Josh Goldfein ; Jaqualine Berger; Shawn Lavin; Brian Kulpa; James Granville; Joseph McCann ; Gary Vera; Brian Nowak ; Brian Pilarsky; Kelly Campbell; Desmon Metzger; Laurie Reitz; Lindsay Gottorff; Jack Fritz ; John Mikkelson; Richard D'Agostino ; Randall Hoak; Megan Comerford; Robert Mahoney ; Ed Hughes; John Ingram; Dean Moretti; Michael Wozniak; Dan Amatura; Mary Penn ; Michael Risman; Daniel Taplesky; Gina Santa Maria; Jill O'Malley; Shannon Patch; Thomas Jones; David Smaczniak; William Bauer; Paul Catalano ; Cynthia Maciejewski; Jeremy Zellner, Commissioner of the Erie County Board of Elections; Ralph Mohr, Commissioner of the Erie County Board of Elections; The Working Families Party of N.Y.S.; the Executive Board of the Working Families Party (WFP) of N.Y.S.; Jonathan Westin and Daniel Langenbucher, Respondents.
Messina Perillo & Hill, LLP by John Joseph N. Ciampoli, Esq. on behalf of the Petitioners Dolce Law Firm, LLP by Sean E. Cooney, Esq., on behalf of Respondents David Mileham; Dawn Kammerdeiner; Sean Rautenstrauch; Ricky Davis; Lisa Chimera; John Bargnesi, Jr.; Tim Meyers; Desmond Metzger; Laurie Reitz; Lindsay Gottorff and Jack Fritz Brittany Lee Penberthy, Esq., on behalf of Respondents: Darrin Ziemba; Kevin Hardwick; Howard Johnson ; April McCants-Baskin; Jeanne Vinal ; John Gilmour ; Jacqualine Berger; Shawn Lavin; Brian Kulpa; James Granville ; Joseph McCann ; Brian Nowak; Brian Pilarski; Kelly Campbell ; John Mikkelson; Richard D'Agostino; Randall Hoak; Megan Comerford; Ed Hughes ; Dean Moretti; Michael Wozniak; Dan Amatura; Mary Penn ; Michael Risman ; Daniel Taplesky; Gina Santa Maria; Jill O'Malley; Shannon Patch; Thomas Jones; David Smaczniak; William Bauer ; Paul Catalano and Cynthia Maciejewski Office of the Erie County Attorney by Jeremy C. Toth, Esq. on behalf of the Erie County Board of Elections Levy Ratner PC by Alexander C. Rabb, Esq., on behalf of Respondents the Working Families Party, The Executive Board of the Working Families Party, Jonathan Westin and Daniel Langenbucher
Messina Perillo & Hill, LLP by John Joseph N. Ciampoli, Esq. on behalf of the Petitioners
Dolce Law Firm, LLP by Sean E. Cooney, Esq., on behalf of Respondents David Mileham; Dawn Kammerdeiner; Sean Rautenstrauch; Ricky Davis; Lisa Chimera; John Bargnesi, Jr.; Tim Meyers; Desmond Metzger; Laurie Reitz; Lindsay Gottorff and Jack Fritz
Brittany Lee Penberthy, Esq., on behalf of Respondents: Darrin Ziemba; Kevin Hardwick; Howard Johnson ; April McCants-Baskin; Jeanne Vinal ; John Gilmour ; Jacqualine Berger; Shawn Lavin; Brian Kulpa; James Granville ; Joseph McCann ; Brian Nowak; Brian Pilarski; Kelly Campbell ; John Mikkelson; Richard D'Agostino; Randall Hoak; Megan Comerford; Ed Hughes ; Dean Moretti; Michael Wozniak; Dan Amatura; Mary Penn ; Michael Risman ; Daniel Taplesky; Gina Santa Maria; Jill O'Malley; Shannon Patch; Thomas Jones; David Smaczniak; William Bauer ; Paul Catalano and Cynthia Maciejewski
Office of the Erie County Attorney by Jeremy C. Toth, Esq. on behalf of the Erie County Board of Elections
Levy Ratner PC by Alexander C. Rabb, Esq., on behalf of Respondents the Working Families Party, The Executive Board of the Working Families Party, Jonathan Westin and Daniel Langenbucher
Scott J. DelConte, J.
This is a special proceeding pursuant to Election Law § 16-102(1) challenging the Working Families Party's designated candidates for elected offices in Erie County and a series of designating petitions for the public office of Town Council in the Towns of Evans and Orchard Park. Petitioners allege that the designations are invalid because the county-wide certificate of authorization (commonly known as a Wilson-Pakula authorization) filed with the Board of Elections is a legal nullity since it was signed electronically (and not by hand) and acknowledged remotely by video conference, and that the Town Council designating petitions failed to indicate the length of the term for the offices. In response, the Working Families Party ("WFP") and the Respondent candidates contend the Petitioners lack standing to challenge the Wilson-Pakula authorization and their designating petitions, and that the Wilson-Pakula authorization is effective because it was properly signed in accordance with the Electronic Signatures and Records Act and lawfully acknowledged pursuant to the Governor's emergency pandemic directives under Executive Order 202.7. For the reasons set forth below, the relief requested in the Verified Petition is DENIED , and the Petition is DISMISSED , with prejudice.
I.
Under New York's fusion voting system, candidates can, if properly authorized, run for elected office on multiple party lines. Political parties have the power to control their ballot lines, and a nonmember cannot be designated as a party candidate without first receiving, and timely filing, a proper Wilson-Pakula authorization issued by the party ( Election Law § 6-120[3] ). Here, since the Respondent candidates are not registered members of the Working Families Party, they were required to timely file a Wilson-Pakula authorization along with their WFP designating petitions to gain access to the WFP's ballot line. For the authorization to be effective, it had to "be signed and acknowledged by the presiding officer and the secretary of the meeting at which such authorization was given," and then filed with the Board of Elections "not later than four days after the last date to file the designating petition" (Elections Law §§ 6-106; 6-120[3]).
As the record establishes, on March 25, 2021, the Executive Board of the Working Families Party of New York State met remotely via Zoom video conference in accordance with Executive Order 202.93 to authorize candidates in the 2021 local elections across the state. Later that day, Jonathan Westin (the Presiding Officer of the authorizing meeting and Working Families Party Co-Chair) and Daniel Langenbucher (Working Families Party Assistant Secretary) met again remotely with William Sacks (a notary public) by Zoom video conference to complete the cross-endorsement process and issue the Wilson-Pakula authorization designating 59 candidates for public office in Erie County.
At the beginning of this meeting, Westin and Langenbucher (who were physically in their Kings County homes) held up and showed Sacks (who was physically in his New York County office) their driver's licenses. Sacks watched remotely, through Zoom, as the party officers separately signed their names by hand on blank pieces of paper. Westin and Langenbucher then photographed their signatures using their cell phones, and uploaded the digital images to their individual computers. Next, Westin and Langenbucher personally affixed the digital images of their hand-written signatures to the digital version of the Wilson-Pakula authorizations (which Langenbucher had earlier prepared and shared at the virtual meeting on Google Drive) by electronically "cutting-and-pasting" the downloaded image into the appropriate signature blocks on the certificates. Westin and Langenbucher viewed, and signed, the authorizations county by county in alphabetical order. With the use of available technology, all of this was observed, over many hours, by Sacks in real time.
For his part, Sacks — having verified Westin and Langenbucher's identity and watched them personally place their digital signatures on the digital certificates — printed the Wilson-Pakula authorizations on paper, notarized them by hand, scanned the completed documents, and then electronically transmitted them to Langenbucher. Finally, Langenbucher printed the completed digital version of the certificates of authorization, and sent the appropriate one to the Erie County Board of Elections by regular and overnight mail. This same procedure was followed with the substitute Wilson-Pakula authorizations that were subsequently executed by Westin and Langenbucher (before different notary publics) on March 29, 2021 and March 31, 2021.
On April 5, 2021, Petitioners — purporting to be both objectors and aggrieved candidates — commenced this special proceeding in Erie County Supreme Court challenging the Respondent candidates' designating petitions on the grounds that the Wilson-Pakula authorization was invalid or, worse, fraudulent, because the paper document filed with the Board of Elections did not contain original signatures. The Court granted the Order to Show Cause on April 8, 2021 (NYSCEF Doc. 5). On April 22, 2021, Chief Administrative Judge Lawrence Marks issued Administrative Order 124/2021 (amended by AO/124a/2021), transferring the action to Onondaga County Supreme Court, and assigning it to the Hon. Scott J. DelConte, J.S.C. (NYSCEF Doc. 9). Altogether, 14 related actions challenging Working Families Party certificates of authorization filed with County Boards of Elections across the state were assigned to this Court.
On April 23, 2021, a consolidated briefing, hearing and argument schedule was issued for all 14 actions (NYSCEF Doc. 73). On April 27, 2021, Respondents Westin and Langenbucher, along with non-party witness Sacks, testified at a consolidated virtual hearing with respect to the signing and acknowledgement of the challenged certificates of authorization. On April 28, 2021, argument was held on the Petitions, virtually, in all related actions.
II.
A Court presiding over a special proceeding under Article 16 of the Election Law must resolve all potentially dispositive procedural objections before addressing the underlying merits of the action ( Castracan v Colavita , 173 AD2d 924, 925 [3d Dept 1991] ). Here, Respondents argue that: (1) this is a special proceeding under the Election Law and, therefore, Petitioners have no basis to seek declaratory or affirmative relief under CPLR 3001 or Article 78; (2) the Petitioners lack standing to challenge the Wilson-Pakula authorization and their designating petitions; (3) that Respondents John Mikkelson and Richard D'Agostino were not timely served; and (4) that any claims of fraud were not pled with the specificity required by CPLR 3016 and must be dismissed (NYSCEF Doc. 7, 12 and 81).
Beginning with the nature of the relief requested in this action, although Petitioners are attacking the validity of the Working Families Party's Wilson-Pakula authorization, the ultimate relief that they seek is to void the Respondent candidates' designating petitions pursuant to Election Law § 16-102 (see e.g. NY State Comm. of the Independence Party v NY State Bd. of Elections , 87 AD3d 806, 809 [3d Dept 2011] ; NYSCEF Doc. 1). Accordingly, the jurisdiction of this Court is strictly limited by the express provisions of the Election Law ( Scaringe v Ackerman , 119 AD2d 327, 328 [3d Dept 1986]affd 68 NY2d 885 [1986] ), and this Court cannot grant relief pursuant to CPLR 3001 or Article 78 except as otherwise available in an Election Law proceeding ( NY State Comm. of the Independence Party , 87 AD3d at 810 ). To the extent that Petitioners seek any relief beyond the express provisions of the Election Law, such claims are dismissed.
Next with respect to standing, in order to challenge the validity of a Wilson-Pakula authorization issued by a political party, a petitioner must be either: (1) a member of the party that issued the authorization who has timely filed proper general and specific objections to it — i.e. an objector; or (2) an aggrieved candidate running for one of the public offices designated on the authorization, who was either a member of the party that issued it or otherwise arguably entitled to its cross-endorsement ( Cane v Mahoney , 40 NY2d 819, 820 [1976] ). The validity of a Wilson-Pakula authorization may not be challenged by a non-party member who has no arguable claim that she was otherwise entitled to it, since it is the product of internal party processes ( Cane , 40 NY2d at 820 ; Koppell v Garcia , 275 AD2d 587, 588 [3d Dept 2000] ; Scaturro v Becker , 76 AD3d 687, 688 [2d Dept 2010] ). Moreover, merely invalidating the Wilson-Pakula authorization will not automatically remove a candidate from a ballot; that requires the subsequent invalidation of the candidate's designating petition under Election Law § 16-102(1) (see e.g. Gross v Hoblock , 6 AD3d 933 [3d Dept 2004] ).
In order to have standing to invalidate a candidate's designating petition because of a fatal defect within it, such as the lack of a valid Wilson-Pakula authorization, a petitioner must be either: (1) the chairman of a party committee; (2) an individual who has timely filed general and specific objections against that candidate's designating petition — i.e. an objector; or (3) an aggrieved candidate running for the same public office as the respondent ( Election Law § 16-102[1] ; Gross v Hoblock , 6 AD3d 933 ). This is a different standard than what is necessary for a petitioner to have standing to challenge a Wilson-Pakula authorization, which can result in situations, such as here, where multiple petitioners must join together in a single action in order to be able to successfully invalidate designating petitions for multiple candidates based upon a purportedly single invalid Wilson-Pakula authorization.
Specifically, as counsel for the Respondent candidates concedes, Petitioner Rick Lechot is a member of the Working Families Party and filed objections and specifications to the Wilson-Pakula authorization, and therefore has standing to challenge the validity of that certificate. In addition, various other Petitioners have standing either as objectors or aggrieved candidates to challenge the validity of the designating petitions for all of the cross-endorsed Respondent candidates except for Darrin Ziemba, Howard Johnson, April McCants-Baskin, Lisa Chimera, Tim Meyers, India Walton, Josh Goldfein, John Ingram, Dean Moretti, Mike Wozniak, Dan Amatura, Paul Catalano and Cynthia Maciejewski. For the remaining cross-endorsed Respondent candidates challenged by either an objector or an aggrieved candidate, Petitioners — together — have standing to contest both the Wilson-Pakula authorization and their designating petitions.
With regards to challenges to the Town Council designating petitions in Evans and Orchard Park, the failure to include the length of the term for the office being sought on a designating petition that includes two offices with the same title as required under Election Law § 6-134(1) is an internal party affair that cannot be contested by individuals who are not enrolled members of the Working Families Party (see e.g. Koppell v Garcia , 275 AD2d 587 [3d Dept 2000] ). Since there are no Petitioners in this action that have standing to challenge the internal affairs of the Working Families Party in the Towns of Evans or Orchard Park (the only enrolled WFP member, Petitioner Lechot, resides elsewhere in Erie County), the seventh cause of action seeking to invalidate the designating petitions for Respondents Lindsay J. Gottorff, Desmond Metzger, Laurie H. Reitz, Mary Penn and Michael Risman is dismissed.
Next, with respect to the statute of limitations, the Courts do not have subject matter jurisdiction over an Election Law proceeding unless all necessary parties have been joined and properly served in accordance with the provisions of the order to show cause prior to the expiration of the applicable statute of limitations ( Nunziato v Messano , 87 AD3d 647, 647-48 [2d Dept 2011] ; Caci v State , 107 AD3d 1121, 1123 [3d Dept. 2013] ). The statute of limitations for an Election Law proceeding challenging the validity of a certificate of authorization is 14 days after the last date to file designating petitions ( Election Law § 16-102[2] ; see e.g. Keane v Clark , 43 AD3d 639, 640 [4th Dept 2007] ). Here, that was April 8, 2021. The affidavits of service filed by Petitioners (NYSCEF Doc. 91, 93 to 94) establish that the necessary papers were personally served on Respondents John Mikkelson and Richard D'Agostino on April 8, 2021, and Respondents offer no evidence to overcome this presumption ( Nunziato , 87 AD3d at 647 ). Accordingly, the proceeding was timely commenced, and this Court has jurisdiction over it.
Finally, with respect to any claims of fraud, although the Petition in this action contains generalized allegations of fraud, it fails to plead any fraudulent conduct on behalf of any party with the specificity required under CPLR 3016. Furthermore, counsel for Petitioners has acknowledged (following the testimony of the signatories to the certificate of authorization) that there are no remaining allegations of fraud with respect to the conduct at issue here. Accordingly, to the extent that any claims of fraud were raised in this proceeding, such claims are dismissed, with prejudice ( Eurycleia Partners, LP v Seward & Kissell , LLP, 12 NY3d 553, 559 [2009] ). The remaining procedural issues raised by the Respondents in their papers have either been waived or are unavailing and, consequently, the Court may properly consider the merits of Petitioners' claims.
III.
Turning to the merits, Petitioners claim that the Wilson-Pakula authorization filed by the Working Families Party is invalid because the signatures of the Presiding Officer and Secretary are not hand-affixed and "wet" ink original signatures. However, there is no statutory mandate that a Wilson-Pakula authorization must contain hand-affixed and "wet" original signatures in order to be filed. To the contrary, the Legislature has specifically authorized electronic signatures on election-related and other documents through the Electronic Signatures and Records Act ("ESRA"; State Tech. Law §§ 301 — 309 ). In particular, State Technology Law § 304(2) provides that:
Unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.
Critically important here is that the Election Law sets forth only four specific documents that must be signed by hand in ink: (1) designating petitions ( Election Law § 6-132 ); (2) independent nominations ( Election Law § 6-140 ); (3) party designations for elective village offices ( Election Law § 15-108[3] ); and (4) independent nominations for elective village offices ( Election Law § 15-108[4] ). For sound and obvious reasons, these documents are only valid if presented to the Board of Elections for filing with hand-affixed "wet" ink original signatures. However, under the ESRA, all other election-related documents, including Wilson-Pakula authorizations ( Election Law § 6-120 ), may be signed electronically ( State Tech. Law § 307 ).
Moreover, the statutory definition of what constitutes an "electronic signature" is extremely broad under the ESRA, and includes any "electronic sound, symbol or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" ( State Tech. Law § 302[a] ). Under the plain meaning of this definition, the "cutting-and-pasting" of a digital photograph of a signature onto a digital version of a document is — without question — a valid electronic signature under the ESRA. Indeed, the rules governing the New York State Court Electronic Filing system (which all attorneys appearing in this action are utilizing) explicitly recognizes such an act as one of the acceptable means of electronically signing a Court document under the ESRA ( 22 NYCRR § 202.5-b [e][1][ii]).
Here, there is no dispute that the WFP's Presiding Officer and Secretary personally signed the Wilson-Pakula authorization electronically before a notary public, who acknowledged the certificate, and thereafter scanned and returned a digital version to the party's officers for filing. The completed digital version of the certificate was printed, and timely filed with the Board of Elections. Accordingly, Petitioners' allegation that the WFP's officers copied and pasted digital photographs of their signatures onto the Wilson-Pakula authorization fails to state a cause of action.
Petitioner's reliance on Gentner v Albany County Board of Elections, 309 AD2d 962 (3d Dept 2003) and New York Attorney General Opinion 2016-1 for a contrary result is misplaced. Gentner concerns the filing of election-related documents under Election Law § 1-106, not the signing of those documents. There is no claim here that the Wilson-Pakula authorization was filed by any improper method. In addition, the certificate of acceptance challenged in Gentner was not electronically signed as allowed under the ESRA; rather, the candidate's signature was affixed by hand and then the certificate was improperly faxed to the board of elections. The ESRA, therefore, simply did not apply. Similarly inapplicable is Attorney General Opinion 2016-1, which merely concluded that there was no need to resort to the ESRA because the Election Law already permitted the use of electronic signatures for voter registration. Neither of these citations support Petitioners' claim that the Election Law excepts certificates of authorization from the electronic signature provisions of the ESRA.
IV.
Moving on to the acknowledgements on the Wilson-Paula authorization, in March of 2020, as the Covid-19 pandemic began spreading through New York, the Legislature amended Executive Law §§ 20 and 29-a to allow the Governor to, by executive order, suspend any law or issue any directive he determined to be necessary to respond to the emergency, provided such suspension of directive was in the interest of the health or welfare or the public and reasonably necessary to aid in the disaster effort. Pursuant to this authority, on March 19, 2020, Executive Order 202.7 was issued (subsequently extended by Executive Order 202.97), which permits the remote notarization of documents during the pandemic as follows:
Any notarial act that is required under New York State law is authorized to be performed utilizing audio-video technology provided the following conditions are met:
• The person seeking the Notary's services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
• The person must affirmatively represent that he or she is physically situated in the State of New York;
• The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
• The Notary may notarize the transmitted copy of the document and transmit the same back to the person; and
• The Notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.
Under its plain and unambiguous language, Executive Order 202.7 applies to all notarial acts required by State law, which by definition includes acknowledgements under the Election Law. Importantly, the New York State Board of Elections alerted all County Boards of Elections of the applicability of Executive Order 202.7 to election-related documents. In a March 23, 2020 bipartisan email, the State Board of Elections advised that "[a]ny acceptance or declination (EL 6-146(1)), authorization (EL 6-120), consent of a substitution (EL 6-148(5)) may utilize the video notary process as set out in Executive Order 202.7" (NYSCEF Doc. 86).
This guidance was reaffirmed in the New York State Board of Elections' 2020 Election Law Update which instructs that "[c]ertificates of designation or nomination, minutes, authorizations and/or acceptances may be executed in separate acts by the signatories thereto and where acknowledgements or oaths are required, they may be performed or administered remotely and pursuant to executive order 202.7 allowing notarizations to be performed using communication technology." Accordingly, a printout of the digital version of the certificate that has been scanned and electronically transmitted back to the signer by the notary public after acknowledgment may then be filed with the Board of Elections (NYSCEF Doc. 86).
https://www.elections.ny.gov/NYSBOE/download/law/2020ElectionLawUpdate.pdf (at page 56).
There is simply no support for Petitioners' argument that Executive Order 202.7 does not apply to election-related documents. Indeed, such an argument is logically incompatible given Executive Order 202.93, which explicitly permits a party committee to meet to issue a Wilson-Pakula authorization remotely during the pandemic "by telephone or video conferencing means." Clearly, if a party's executive committee may meet and authorize a certificate remotely, then that certificate may also be acknowledged using remote technology. Likewise, Petitioners' argument that Executive Order 202.7 does not apply to electronically signed documents is unavailing. State Technology Law § 304(2) clearly states that "[t]he use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." Accordingly, as the Department of State advised in its March 31, 2020 Guidance to Notaries Concerning Executive Order 202.7, "[t]he signatory may use an electronic signature, provided the document can be signed electronically under the Electronic Signatures and Records Act (Article 3 of the State Technology Law). If the signer uses an electronic signature, the notary must witness the electronic signature being applied to the document, as required under Executive Order 202.7" (NYSCEF Doc. 85). Accordingly, Petitioners' allegation that the notary public acknowledged the WFP's officers' signatures remotely with virtual technology fails to state a cause of action.
V.
Simply put, Petitioners fail to allege any fatal errors or defects in the WFP's Wilson-Pakula authorization. Even if they had alleged such errors, however, that certificate would still be presumptively valid because of the acknowledgments contained on it. All documents acknowledged by a notary public are presumed to have been properly signed and notarized in accordance with the law ( Dwyer v Pellegrino , 164 AD3d 1088, 1089 [3d Dept 2018] ; O'Dea v Bell , 242 AD2d 349, 350 [2d Dept 1997] ). Indeed, this presumption of regularity is one of the primary purposes that documents are required to be notarized in the first place. And Petitioners have submitted no evidence rebutting the presumption that the acknowledged Wilson-Pakula authorization is valid.
Accordingly, although a factual hearing was held in this action on April 28, 2021 in order to establish the record for the parties, there are no issues of fact for the Court, and its ruling is based solely upon the pleadings and paper submissions only. Had the Petitioners submitted evidence rebutting the presumption of regularity of the acknowledged certificate of authorization, though, this Court would have found — based upon the thorough and credible testimony of the party and non-party witnesses — that the Wilson-Pakula authorization was properly signed and acknowledged in accordance with the ESRA and Executive Order 202.7.
VI.
Finally, as a matter of law, the Wilson-Pakula authorization that was mailed to and filed with the Erie County Board of Elections is the original version of that document, properly signed and acknowledged in accordance with the provisions of the ESRA and Executive Order 202.7; and it is therefore valid. However, even if there had been a defect in the execution or filing of the WFP's Wilson-Pakula authorization, this Court would be without authority to invalidate the certificate if it substantially complies with the requirements of the Election Law. As the Second Department admonished in Farrell v Reid (131 AD3d 628 [2015] ), the "primary purpose of Election Law § 6-120(3) is to ‘safeguard the integrity of the electoral process and not to defeat elections’ " and, as such, it is of " ‘paramount importance that the will of the party committee of the political subdivision involved is expressed’ " ( Id. at 629 ).
With the exception of the statutory timing deadlines (see Seawright v Board of Elections , 35 NY3d 227 [2020] ), Courts have "recognized that a procedural defect need not be fatal where, as here, the defect alleged did not constitute a ‘substantive deficiency’ implicating the integrity of the electoral process" ( Marzullo v DelConte , 165 AD3d 1466, 1468 [3d Dept 2018] ). The will of the Working Families Party to cross-endorse the candidates that are named on its Wilson-Pakula authorization is perfectly clear, and an improperly affixed signature or an incorrectly applied acknowledgment does not change that fact. Minor subscribing errors do not rise to the level of a substantive deficiency warranting invalidation ( Hazell v Board of Elections of the State of New York , 224 AD2d 806, 807 [3d Dept 1996] ).
VII.
Accordingly, after consideration of all of the papers filed in this action and the argument of counsel for the parties, and upon due deliberation, it is hereby
ORDERED that the claims in the first, second, third, fourth, fifth and sixth causes of action against Respondents Darrin Ziemba, Howard Johnson, April McCants-Baskin, Lisa Chimera, Tim Meyers, India Walton, Josh Goldfein, John Ingram, Dean Moretti, Mike Wozniak, Dan Amatura, Paul Catalano and Cynthia Maciejewski are DISMISSED based upon a lack of standing; and it is further
ORDERED that the claims in the seventh cause of action against Respondents Lindsay J. Gottorff, Desmond Metzger, Laurie H. Reitz, Mary Penn and Michael Risman are DISMISSED based upon a lack of standing; and it is further
ORDERED that that remaining relief requested in the Petition is DENIED, and the Petition is DISMISSED , with prejudice and on the merits; and it is further
ORDERED that counsel for the Respondent Erie County Board of Elections shall contact the Court's Chambers to make arrangements for the return of the original documents submitted pursuant to the Court's April 23, 2021 Scheduling Order.
1. Verified Petition, sworn to April 6, 2021 (NYSCEF Doc. 1);
2. Amended Order to Show Cause of the Hon. Timothy J. Walker, A.J.S.C., entered April 8, 2021 (NYSCEF Doc. 6);
3. Verified Answer of Respondent Candidates Darrin Ziemba, Kevin Hardwick, Howard Johnson, April McCants-Baskin, Jeanne Vinal, John Gilmour, Jacqualine Berger, Shawn Lavin, Brian Kulpa, James Granville, Joseph McCann, Brian Nowak, Brian Pilarski, Kelly Campbell, John Mikkelson, Richard D'Agostino, Randall Hoak, Megan Comerford, Ed Hughes, Dean Moretti, Michael Wozniak, Dan Amatura, Mary Penn, Michael Risman, Daniel Taplesky, Gina Santa Maria, Jill O'Malley, Shannon Patch, Thomas Jones, David Smaczniak, William Bauer, Paul Catalano and Cynthia Maciejewski, sworn to on or about April 18, 2021 (NYSCEF Doc. 7);
4. Administrative Order 124-2021 (NYSCEF Doc. 11-1);
5. Verified [Answer] of Respondent Candidates David Mileham, Dawn Kammerdeiner, Sean Rautenstrauch, Ricky Davis, Desmond Metzger, Laurie Reitz, Lindsay Gottorff, Jack Fritz, Lisa Chimera, John Bargnesi, Jr., and Tim Meyers, sworn to on or about April 18, 2021 (NYSCEF Doc. 12);
6. Affidavits of Service (NYSCEF Docs. 13 to 71, 91, 93 to 94);
7. Affirmation of Brittany L. Penberthy, Esq., in Support of Dismissal, affirmed on or about April 26, 2021 (NYSCEF Doc. 75);
8. Verified Answer of Respondents Zellner and Mohr, sworn to April 26, 2021, with Exhibits A through C, attached (NYSCEF Docs. 76 to 79);
9. Affirmation of Sean E. Cooney, Esq., in Support of Dismissal, affirmed on April 26, 2021 (NYSCEF Doc. 80);
10. Verified Answer of Working Families Party Respondents, sworn to April 26, 2021 (NYSCEF Doc. 28);
11. Affirmation of Alexander Rabb, Esq., in Support of Respondents' Verified Answer in Opposition to Petitioners' Verified Petition, Affirmed April 26, 2021, with Exhibits 1 through 4, attached (NYSCEF Docs. 82 to 86); and
12. Original Certificate of Authorization (NYSCEF Doc. 97).