Opinion
Index No. 2023-2399
10-05-2023
In the Matter of Rich Amedure, GARTH SNIDE, ROBERT SMULLEN, EDWARD COX THE NEW YORK STATE REPUBLICAN PARTY GERARD KASSAR, THE NEW YORK STATE CONSERVATIVE PARTY, JOSEPH WHALEN, THE SARATOGA COUNTY REPUBLICAN PARTY, RALPH M. MOHR, ERIK HAIGHT and JOHN QUIGLEY, Petitioners/Plaintiffs, v. State of New York, BOARD OF ELECTIONS OF THE STATE OF NEW YORK, GOVERNOR OF THE STATE OF NEW YORK, SENATE OF THE STATE OF NEW YORK, MAJORITY LEADER AND PRESIDENT PRO TEMPORE OF THE SENATE OF THE STATE OF NEW YORK, MINORITY LEADER OF THE SENATE OF THE STATE OF NEW YORK, ASSEMBLY OF THE STATE OF NEW YORK, MAJORITY LEADER OF THE ASSEMBLY OF THE STATE OF NEW YORK, MINORITY LEADER OF THE ASSEMBLY OF THE STATE OF NEW YORK, SPEAKER OF THE ASSEMBLY OF THE STATE OF NEW YORK, Respondents/Defendants, and DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE (DCCC), NEW YORK STATE SENATOR KIRSTEN GILLIBRAND, NEW YORK STATE REPRESENTATIVE PAUL TONKO, And DECLAN TAINTOR, Proposed Intervenors Respondents/Defendants.
John Ciampoli, Esq. Messina, Perillo & Hill, LLP Attorney for Petitioners/Plaintiffs Adam Fusco, Esq. Attorney for Petitioners/Plaintiffs James R. Peluso Dreyer Boyajian, LLP Attorney for Proposed Intervenors Richard A. Medina Esq. Aria C. Branch, Esq. Justin Baxenberg, Esq. Marilyn Robb, Esq. Elias Law Group LLP Attorney for Proposed Intervenors
Unpublished Opinion
John Ciampoli, Esq. Messina, Perillo & Hill, LLP Attorney for Petitioners/Plaintiffs
Adam Fusco, Esq. Attorney for Petitioners/Plaintiffs
James R. Peluso Dreyer Boyajian, LLP Attorney for Proposed Intervenors
Richard A. Medina Esq. Aria C. Branch, Esq. Justin Baxenberg, Esq. Marilyn Robb, Esq. Elias Law Group LLP Attorney for Proposed Intervenors
Dianne N. Freestone, J.
Plaintiffs Richard Amedure, Garth Snide, Robert Smullen, Edward Cox, the New York State Republican Party, Gerard Kassar, the New York State Conservative Party, Joseph Whalen, the Saratoga County Republican Party, Ralph M. Mohr, Erik Haight and John Quigley (hereinafter referred to as the "Plaintiffs") commenced the within hybrid proceeding pursuant to Article 16 of the New York State Election Law and declaratory judgment action pursuant to Section 3001 of the New York State Civil Practice Law and Rules on September 1, 2023 by filing a verified petition/complaint with the Saratoga County Clerk's Office and sought expedited intervention of the Court by Order to Show Cause which was signed and dated by the Court on September 8, 2023, and originally made returnable on September 20, 2023.
However, on September 19, 2023, the matter was judicially re-assigned and on September 20, 2023 this Court took possession of the instant matters and those filings previously submitted. The original return date of September 20, 2023, was adjourned, and by email of that same date to all parties the Court advised of the following filings and the rescheduled dates for the submission of responsive papers and return dates for each:
1. Petitioner's Verified Petition and Order to Show Cause (NYSCEF 4)
a. Filed on September 1, 2023.
b. Signed by the Court on September 20, 2023.
i. Service by September 22, 2023.
ii. Responsive Papers due by September 29, 2023.
c. Return scheduled for Thursday, at 10:00 a.m. (in person) at the Courthouse in Ballston Spa, New York.
2. Respondent NYS and NYS Governor Hochul Motion to Dismiss (NYSCF 28)
a. Filed on September 18, 2023.
b. Responsive Papers due by September 28, 2023.
c. Return scheduled for Thursday, at 10:00 a.m. (in person) at the Courthouse in Ballston Spa, New York.
3. Respondent Senate Majority Motion to Dismiss (NYSCEF 6)
a. Filed on September 18, 2023.
b. Responsive Papers due by September 28, 2023.
c. Return scheduled for Thursday, at 10:00 a.m. (in person) at the Courthouse in Ballston Spa, New York.
4. Respondent Assembly Majority Motion to Dismiss and Order to Show Cause (NYSCEF 37)
a. Filed on September 18, 2023.
b. Signed by the Court on September 20, 2023.
i. Service by September 22, 2023.
ii. Responsive Papers due by September 29, 2023.
iii. Reply Papers due by October 2, 2023.
c. Return scheduled for Thursday, at 10:00 a.m. (in person) at the Courthouse in Ballston Spa, New York.
5. Order to Show Cause and Motion to Intervene (Sen. Gillibrand and Rep. Tonko) (NYSCEF 12)
a. Filed on September 18, 2023.
b. Signed by the Court on September 20, 2023.
i. Service by September 22, 2023.
ii. Responsive Papers due by September 28, 2023.
iii. Reply Papers due by October 2, 2023.
c. Return scheduled for Thursday, at 10:00 a.m. (in person) at the Courthouse in Ballston Spa, New York.
6. Notice of Motion for Admission Pro Hac Vice (Aria Branch, Esq.) o/b/o Proposed Intervenors (NYSCEF 46)
a. Filed September 20, 2023.
b. Order of Admission Pro Hac Vice granted by the Court September 20, 2023.
7. Notice of Motion for Admission Pro Hac Vice (Justin Baxenberg, Esq.) o/b/o Proposed Intervenors (NYSCEF 50)
a. Filed September 20, 2023.
b. Order of Admission Pro Hac Vice granted by the Court September 20, 2023.
The matter thus was re-scheduled for an appearance and return on the Plaintiffs' Order to Show Cause for Thursday, at 10:00 a.m.
As above, by Order to Show Cause for Expedited Leave to Intervene as Respondents and Memorandum of Law with accompanying Attorney Affirmation and Affidavits filed on September 18, 2023 with the Saratoga County Clerk's Office the Democratic Congressional Campaign Committee (DCCC), New York State Senator Kristin Gillibrand, New York State Representative Paul Tonko and Declan Taintor (hereinafter "Intervenors") sought leave to intervene as named parties in the instant action. The proposed intervenors identify as a political committee with the mission to elect Democratic candidates, a duly elected Democratic NYS Senator to the United States Senate (Kirsten Gillibrand), a duly elected Democratic Representative to the United States House of Representatives (Paul Tonko) and a New York voter who intends to cast absentee ballots for members of the Democratic Party. Copies of the moving papers filed by Intervenors were thereafter uploaded to the NYSCEF system as leave for electronic filing was granted on September 20, 2023 (NYSCEF 2).
The Court has signed the Order to Show Cause of the Intervenors and made same returnable on Thursday, at 10:00 a.m. to be heard contemporaneously with the argument and return of the Petitioner's Order to Show Cause. Thereafter, by Memorandum of Law in Opposition to Motion(s) to Dismiss and Intervene filed on September 28, 2023 (NYSCEF 71), counsel for the Plaintiffs expressed its opposition to the granting of an Order of Intervention on behalf of the Intervenors and likewise its consent for the Court to designate the Intervenors as a "friend of the Court." This matter now comes before the Court for decision on the motion of the Intervenors for intervention and to be included as a named party/respondent in the instant matter.
At the outset, the Court notes that this is a special proceeding brought under both the New York State Election Law and the New York State Civil Practice Law and Rules. Section 401 of the New York State Civil Practice Law and Rules (CPLR) sets forth that "the party commencing a special proceeding shall be styled the petitioner and any adverse party the respondent. After a proceeding is commenced, no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of the Court." NYS CPLR Section 401 limits the number of parties to a special proceeding and the usual CPLR devices allowing for free joinder of parties after the commencement of an action are rendered inoperative by NYS CPLR Section 401. Indeed, leave of the Court is required to join additional parties by way of interpleader (NYS CPLR Section 1006(b)), third-party practice (NYS CPLR Section 1007) or otherwise (NYS CPLR Section 3019(d)). The limitation upon additional parties is appropriate in a special proceeding given the immediacy under which these proceedings are to be brought and thus the Court is given "control over parties necessary to preserve the summary nature of the proceeding, but is still able to utilize [joinder devices] to prevent an undesirable multiplicity of suits." New York Advisory Committee on Practice and Procedures, Third Preliminary Report, Legislative Document No. 17, P. 155 (1959). As set forth in the plain language of this statute, there is a general statutory preference against the allowance of intervention although ultimately left to the discretion of the Court.
Here, the Intervenors have moved for intervention and to be included as a named party/respondent in this action. Initially the Court notes that while the filings of the Intervenors may be considered timely, its reliance upon NYS CPLR 1012 as grounds that the Intervenors are entitled to intervention as a matter of right (1012) is misplaced. Again, while timely filed, the Intervenors have not shown with due sufficiency the entitlement by right to intervene under NYS CPLR Section 1012 nor that the rights of its members would not be sufficiently represented by the parties and counsel already in this action.
There is no question that the named Respondent parties are represented by a host of qualified and capable counsel including the New York State Attorney General's Office, Counsel for the Board of Elections as well as both public and private counsel. While the Court recognizes and appreciates the substantial interests that the Intervenors and its members have in the instant litigation, the Court likewise finds that these interests are substantially and adequately represented through the panoply of named Respondents including the New York State Board of Elections, the New York State Senate and New York State Assembly as well as the Governor of the State of New York. In view of the same, the Court does not find that Intervenor DCCC is entitled to intervene as a matter of right under NYS CPLR Section 1012.
While NYS CPLR 1013 does allow for permissive intervention in certain matters, this is a special proceeding and as such leave to intervene shall be left to the discretion of the Court under NYS CPLR Section 401. As it relates to permissive intervention under NYS CPLR Section 1013, the key question before the Court is whether the Intervenors possesses a "real and substantial interest in the outcome of the proceedings." In re Estate of Jermain, 122 A.D.2d 1175 (3rd Dept., 2014). Here, two (2) of the proposed Intervenors are duly elected officials (Senator Gillibrand and Representative Tonko) who will both be up for re-election to their respective offices in the 2024 election cycle. As the heart of the instant litigation directly relates to the very nature in which ballots are to be cast in the 2024 election, this Court finds that both Intervenors have a "real and substantial" interest in the outcome of this proceeding.
In view of the same, the Court does find sufficient cause under NYS CPLR Section 401 and 1013 to grant leave for intervention on behalf of Intervenors. Based on the foregoing, the motion of the Intervenors seeking to be included in the instant action is granted.
The foregoing constitutes the Decision and Order of the Court. Any of the other relief that the parties have sought in this matter, but has not been specifically addressed herein, is denied. The Court is hereby uploading the original Decision and Order into the NYSCEF system for filing and entry by the County Clerk. Counsel for the Intervenors is still responsible for serving notice of entry of this Decision and Order in accordance with the Local Protocols for Electronic Filing for Saratoga County.
Signed this 5th day of October, 2023, at Saratoga Springs, New York.