Opinion
Index No. 01089-2020
03-09-2020
In the Matter of the Application of William POLENZ, Brian A. Higgins, Nella Burrone, Petitioner-Objectors, and Keith Brown, Candidate-Aggrieved Petitioner, v. Michael A. MARCANTONIO, Respondent-Candidate, Suffolk County Board of Elections, by Anita S. Katz and Nick LaLota, Constituting Commissioners Respondents.
ADAM FUSCO, ESQ., Attorneys for Petitioners PO Box 7114, Albany, NY 1224 MARTIN E. CONNOR, ESQ., Attorney for Respondent Candidate, 61 Pierpont Street, Suite 71, Brooklyn, NY 11207 HON. DENNIS H. BROWN, ESQ., Suffolk County Attorney, Attorney for Respondents BOE, By: ALYSSA GARONE, ESQ., P.O. Box 6100, H. Lee Dennison Bld., 100 Veterans Memorial Highway, Hauppauge, NY 11788-0099
ADAM FUSCO, ESQ., Attorneys for Petitioners PO Box 7114, Albany, NY 1224
MARTIN E. CONNOR, ESQ., Attorney for Respondent Candidate, 61 Pierpont Street, Suite 71, Brooklyn, NY 11207
HON. DENNIS H. BROWN, ESQ., Suffolk County Attorney, Attorney for Respondents BOE, By: ALYSSA GARONE, ESQ., P.O. Box 6100, H. Lee Dennison Bld., 100 Veterans Memorial Highway, Hauppauge, NY 11788-0099
Robert F. Quinlan, J.
Upon the following papers read on this motion by respondent-candidate Michael A. Marcantonio for an order dismissing the petition for failure to comply with Election Law § 16-116 and CPLR 3020 ; petitioners' Order to Show Cause and attached petition with supporting papers; respondent Board of Election's Return; respondent-candidate's verified answer; respondent-candidate's motion to dismiss, affirmation of counsel in support and memorandum of law; petitioners' counsel's affirmation in opposition and memorandum of law; the oral argument of counsel on March 5, 2020; and memoranda of law of both counsel submitted by email on March 6, 2020 it is,
ORDERED that the motion by respondent-candidate Michael A. Marcantonio to dismiss the petition upon the grounds that it is not verified in compliance with Election Law § 16-116 and CPLR 3020 is granted.
Petitioners commenced this proceeding pursuant to Article 16 of the Election Law by filing the petition and order to show cause on February 27, 2020, a day before the last day set by law to bring such a challenge to the certificates of nomination of respondent-candidate Michael A. Marcantonio ("Marcantonio") filed by the Democratic Party on February 18, 2020 and the Working Families Party on February 19, 2020 for the office of member of the New York State Assembly for the 12th Assembly District for the special election to be held on April 28, 2020 to fill that presently vacant office. Prior to that, petitioners-objectors had filed general objections with respondent Suffolk County Board of Elections by Anita S. Katz and Nick LaLota, Commissioners ("BOE") to the certificates of nomination on February 21, 2020, and specific objections on February 25, 2020, designating their counsel to receive all notices with respect to the proceedings on their behalfs.
In both the specific objections filed with the BOE and in the petition brought by the petitioner-objectors and the petitioner-aggrieved candidate (collectively "the petitioners"), the petitioners allege two grounds for the disqualification of Marcantonio: the first, that he fails to meet the requirement of five years continuous residency within the state as set forth in the New York State Constitution, Article III, § 7 for a member of the Assembly, and second, that he fails to meet the further requirement that he live continuously within the 12th Assembly District for one year before election. In support of those claims petitioners submitted with their petition two exhibits. The first exhibit is a copy of Marcantonio's certificate of registration from the BOE which shows that his registration at the address contained in the certificates of nomination was first effective as of March 18, 2016. The second is a purported "on-line" print out from the state of North Carolina that shows Marcantonio had been registered in that state in 2012 and voted in the 2012 and 2014 elections.
In the petition signed by petitioners' counsel, counsel refers to Matter of Notaristefano v. Marcantonio , 164 AD3d 721 (2d Dept 2018), a case in which Marcantonio was disqualified as a candidate for the same office in 2018, as the record before the court showed that at that time he then did not meet the five year continuous residency requirement of Article III, § 7 of the New York State Constitution. The decisions of the Appellate Division and the trial court (Matter of Notaristefano v. Marcantonio , Sup. Ct., Suffolk County, August 17, 2018, amended August 20, 2018, Horowitz, J., Index No. 4004-2018) did not establish when Marcantonio's residency in North Carolina for electoral purposes ended, only that at that time in 2018 he did not meet the five year continuous residency requirement. Although petitioners' counsel refers to the decision of the Second Department in his affirmation, he makes no reference to the decision of Judge Horowitz, nor doid he submit a copy of Judge Horowitz' decision as an exhibit to the petition.
This court signed the order to show cause, returnable on March5, 2020 at 9:30 AM, which gave direction to petitioners to serve Marcantonio by February 27, 2020 either personally, by service on a person of suitable age and discretion either at his actual place of business or at the address listed as his residence on the certificates of nomination ("his residence"), or by " nail and mail" on the front door of his residence. If served by any method other than personally, the court required the petitioners to mail a copy of the order to show cause and petition to Marcantonio at his residence by overnight guaranteed USPS mail in Suffolk County by February 28, 2020. The affidavit of petitioners' process server on the return of the order to show cause shows compliance with service in that a a copy of the order to show cause and petition was "nailed" on the door of Marcantonio's residence on February 27, 2020 at 7:50 PM, and the required mailing was made on February 28, 2020 at 11:42 AM. No proof of when the mailing was delivered to Marcantonio's residence was submitted.
In response to the petition, on March 2, 2020, counsel for Marcantonio both emailed and mailed by USPS Express Mail, guaranteed overnight delivery, his client's answer to petitioners' counsel and the BOE. The answer raised as a "First Complete Defence [sic]" that the court lacked jurisdiction over Marcantonio as service was made upon him by "nail and mail" on February 28, 2020 and the petition contained no verification. Subsequently, on March 3, 2020, Marcantonio served a motion to dismiss the petition, with a supporting affirmation of counsel and a memorandum of law, raising only the claim that the petition was not verified. By failing to raise the claim in the motion that the service upon Marcantonio by "nail" was improperly made on February 28th, rather than February 27th as directed, Marcantonio has waived that claim ( CPLR 3211 [e] ).
On the return date of the order to show cause, March 5, 2020, petitioner's counsel submitted his affirmation in opposition to Marcantonio's motion, along with his memorandum of law. The court held oral argument on the issues and allowed both counsel to submit further memoranda of law on points argued for the first time that morning, directing counsel to submit such memoranda to the court in email format by 10:00 AM March 6, 2020. Both counsel made timely submissions, but the court notes that it will not consider the second point raised in petitioners' counsel's supplemental memorandum asking the court to render a declaratory judgement pursuant to CPLR 3001, as such request was made neither in counsel's original affirmation in opposition, nor in oral argument on March 5, 2020.
Election Law § 16-116 requires that a special proceeding under Article 16, such as the one presently before the court, "shall be heard upon a verified petition...." CPLR § 3020 (a) sets forth the requirements for verification. Both parties concede that both counsel could provide the verification needed for the petition, or answer, in this special proceeding, as both counsels' offices are not in the county where their clients reside ( CPLR § 3020 [d] [3] ). At issue before the court is the fact that petitioners' counsel did not verify the petition, merely swearing to the petition before a notary.
The general rule that a special proceeding under Article 16 of the Election Law is to be heard upon a verified petition and that failure to verify that pleading deprives the court of jurisdiction, an infirmity that cannot be cured by an amendment after the statute of limitations has passed and requires dismissal of the petition upon a timely motion by an opponent is set forth in Matter of Goodman v. Hayduk , 45 NY2d 804 (1978), affirming the decision of the Second Department in 64 AD2d 937 (2d Dept 1978). This principle has been regularly applied (see Matter of Dusaneko v. Le Fever , 84 AD2d 583 [2d Dept 1981] ; Vaughn v. Withers , 153 AD2d 712 [2d Dept 1989] ; Matter of Frisa v. Irace , 297 AD2d 393 [2d Dept 2002] ; Matter of Frisa v. O'Grady , 297 AD2d 394 [2d Dept 2002] ; Matter of Niebaurer v. Board of Elections of the City of New York , 76 AD3d 660 [2d Dept 2010] ; Matter of Demarco v. Monroe County Board of Election , 176 AD3d 1645 [4th Dept 2019] ). Further, it has been held that an oath taken before a notary, as here, is an insufficient substitute for the required verification (see Matter of Alper v. Hayduk , 71 AD2d 935 [2d Dept 1979] ), and that an acknowledged petition cannot be considered a properly verified petition (see Matter of Frisa v. McCarthy , 298 AD2d 457 [2d Dept 2002] ). A court cannot at a later date allow a party to correct the error as once the statute of limitations has run, the jurisdictional defect cannot be cured (see Foley v. Grasso, 114 AD2d 585, [3rd Dept 1985] ; Matter of O'Connell v. Ryan , 112 AD2d 1100 [3rd 1985] ; Matter of Atwood v. Pridgen , 142 AD3d 1278 [4th Dept 2016] ).
Petitioners' counsel attempts to avoid the heavy penalty for failing to verify the petition by arguing that Marcantonio's counsel had the responsibility to notify him of the defect pursuant to CPLR 3022 to allow him to correct it. But as argued by Marcantonio's counsel, petitioners' placed themselves in their present position by not only ignoring the clear mandates of Election Law § 16-116 and CPLR 3020, but also by waiting until two days before the statute of limitations would expire to bring this proceeding. The petitioners were aware of the issues that they raised in their petition immediately upon the filing of the certificate of nomination as a result of the decisions in the 2018 litigation. They promptly filed their general objections and then specific objections with the BOE, copying Marcantonio, and then waited until the penultimate day to challenge the Democratic certificate. Petitioners' counsel stated to this court in applying for the order to show cause on February 27th, and again in the oral argument on the return date, that the reason for the delay was that petitioners' were hopeful that the BOE would act on their objections. Such a hope was not just forlorn, it was unsupported by law, as the objections raised by petitioners were not of a ministerial nature that could be determined by the BOE, rather they could clearly only be determined by a court upon their petition (see Matter of Feustel v. Garfinkle , 29 AD3d 831 [2d Dept 2006] ; Matter of Diamondstone v. Connor , 12 Misc 3d 1196 [A], 2006 NY Slip Op 51598 [U][Sup Ct., Kings County 2006], affd 32 AD3d 482 [2d Dept 2006] ). As argued by Marcantonio's counsel in his motion and memorandum of law, as well as at oral argument, if petitioners had promptly brought the petition instead of waiting for the BOE to perform an act it could not perform, he could have done as petitioners' counsel suggested, rejected the unverified petition, and it could have been timely amended and filed. By their own delay, petitioners put Marcantonio in the position that a rejection by his counsel upon learning of this error pursuant to CPLR 3022, in this non-e-filed case, would have served no purpose: the statute of limitations had run, and as indicated by the cases above prevented a curing of the defect. Additionally, such an act by Marcantonio's counsel would have placed his client in a position, whether or not sustainable, where petitioners could argue that his act had waived the statute of limitations.
In arguing for the applicability of CPLR 3022, petitioners' counsel points to two cases where a failure to comply with CPLR 3022 were held to have waived a claim by a respondent for dismissal of an unverified petition. As stated by the court in each decision, the facts in both cases are "particular to the case," and this court finds those facts inapplicable here. Unlike the facts before this court, the appellants in Matter of Ladore v. Mayor and Board of Trustees of Village of Port Chester , 70 AD2d 603 (2d Dept 1979) did not raise the objection of lack of verification on the return date of the order to show cause, although aware of it days before, and then waited until the day after the defect could not be remedied to raise the issue. As the facts in this case indicate above, Marcantonio raised the issue before the return date of the order to show cause and could not have raised it before the statute expired because of petitioners own conduct.
The decision in Matter of Master v. Pohanka , 44 AD3d 1050 (2d Dept 2007), the second case relied upon by petitioner, is also "[u]nder the particular circumstances of this Election Law proceeding" (see Matter of Master v. Pohanka at 1052). The facts underlying that decision point to what seems to this court to be a pattern in cases which "relax" the requirement of a verified petition or answer: there is a fundamental defect in the proceeding made apparent to the court on the record before it, and which if the court is forced to ignore because of the unverified document, will eviscerate the just application of the Election Law. In Matter of Master v. Pohanka , if the unverified pettion was dismissed, then the ersatz "Executive Committee of the Suffolk County Working Families Party Executive Committee " would have been allowed to illegally usurp the legal authority of the State Committee and State Executive Committee of the New York State Working Families Party under its rules to substitute a candidate in case of a vacancy.
Similarly, in Matter of Rose v. Smith , 220 AD2d 922 (3rd Dept 1995), also referred to by petitioners in support of their argument, the trial court, affirmed by the Third Department, ignored the fact that the petitions of the Democratic petitioners were unverified, for to do otherwise would have sustained the unlawful determination of the Board of Elections disqualifying them to run for office based upon unlawful objections by objectors who were Republicans. Those objectors clearly lacked standing and to allow that determination to stand because of unverified petitions would have impermissibly allowed one party to involve itself in the internal operation of another party, disenfranchising that party's voters.
Similar results were found in other cases. In Matter of Lee v. Orange County Board of Elections , 164 AD3d 717 (2d Dept 2018), again "[u]nder the particular circumstances of this case" (see Matter of Lee at 718), the court found that the Board failed to give notice with due diligence as to the lack of verification under circumstances where it appeared before the court that 69 challenged signatures were clearly valid under case law, requiring validation of the petition. Also in Matter of Augostini v. Bernstein , 172 AD3d 1946 (4th Dept 2019), although dealing with a claimed defect in a verified answer, the Fourth Department reversed the striking of that answer, pointing to the fundamental principle that the petitioner-objector lacked standing to bring the petition as she was not a resident of the town.
The argument of petitioners that the holding in the 2018 litigation is stare decisis in this case appears to be based upon a misreading of the decisions by Judge Horowitz and the Second Department. As indicated above, the only issue resolved in those decisions was that in 2018 Marcantonio failed to meet the five year continuous residency in New York required by the constitution to be a candidate for the assembly. There was no finding that he did not reside at the residence on the designating petition, which is the same residence on the challenged certificate of nomination here, nor was there a finding as to when he re-established residency in New York. The fact that the records of the BOE shows he re-registered in Suffolk County, New York effective March, 18, 2016, has not been shown by any case law submitted by petitioners to establish a time line for commencement of the five year continuous residency period. Although there may have been some proof that could have been offered by petitioners before this court to establish such a time line for when Marcantonio re-established his residency in New York and arguably place the facts of this case into a situation similar to the "particular facts of this case" as in cases referred to above, petitioners have not presented that on this record, and the court has no authority to do so sua sponte . This court cannot make its determination upon facts dehors the record before it.
Accordingly, under the facts presented, and argued to this court, the court is compelled to grant Marcantonio's motion and dismiss the unverified petition ( Election Law § 16-116, CPLR 3020 ).