Opinion
708128 2021
06-10-2021
In the Matter of the Application of Joann ARIOLA, Edward J. O'Hare, Gerald Sullivan, Philip S. Grillo, Syeda Hossain, Stefano Forte, Meilin Tan, Robert J. Speranza, Amanda L. Ryan, Konstantinos Poulidis, Lauren N. Rivera, Bart J. Haggerty, Kathleen Rose Hunter, Joseph F. Kasper, Ivan D. Mossop, James F. Reilly, Donna M. Caltabiano, William A. Marquez, Felise A. Lindhartsen, Raymond K. Hummel, Felicia Kalan, Logan P. Flotte, Kimberly I. Kotary, Catherine Giuliani, Thomas J. Zmich, Yu-Ching Pai, Timothy Rosen, Shah Shahidul Haque, Marvin R. Jeffcoat, Michael Conigliaro, Vanessa Pollie Simon, Candidates Aggrieved, and Anthony P. Nunziato, Barbara A. Elsasser, William M. Horowitz, Winnie H. Eng, Kevin J. Ryan, Jr., Matthew D. Hunter, Joseph A. Cullina, Hawiise Cabiri, Marie Elena Fabrizi, Karen M. Kender, John M. Watch, Han-Khon To, Ramona J. Campbell, Objectors, Petitioners, v. Danniel MAIO, Kathy Wu Parrino, Philip A. McManus, Jr., Margaret Wagner, Phil Orenstein, Anita Uppal, Craig Tyson, Susan B. Erlebacher, James J. Martinosky, Regina Michelle Landi, Daniel Noble, David Abraham, Yanling Z. Wagner, Donovan H. Sybliss, Martin Hightower, Joseph R. Concannon, Catherine Washell, Aldo J. Solares, Enid H. Goldstein, Fernando J. Acosta, Stephen H. Weiner, Betty Ann Hogan, Melody Rudman, Isak Khaimov, Alex Amoroso, Angelo King, Ruben D. Cruz Ii, Stephen A. Sirgiovanni, candidates, and The Board of Elections in the City of New York, Respondents.
Attorney for Petitioners, By: John Ciampoli, Esq., Messina, Perillo and Hill LLP 285 W Main St. Ste 203, Sayville, New York 11782, Tel: (631) 582-9422 Cell: (518) 522-3054, Fax: (516) 450-3473 Respondent Danniel Maio, represented himself pro se, Attorney for Respondents Stephen Weiner, Betty-Ann Hogan and Daniel Nobel, By: Stephen H. Weiner, Esq., Law Office of Stephen H. Weiner, 200 Park Avenue, Suite 1700, New York, New York 10166, (212) 566-4669, (646) 349-1679 (fax) Attorney for Respondents Catherine Warshell, Stephen Sirgiovanni, Susan B. Erlebacher, Philip A. Mcmanus, Margaret Wagner, Yanling Z. Wagner, Joseph R. Concannon, Phil Orenstein, Angelo King, Alex Amoroso, Anita Uppal, David Abraham, Kathy Wu Parrino, and Craig K. Tyson, By: Craig K. Tyson, Esq., Law Office of Craig K. Tyson, 299 Broadway, Suite 800, New York, New York 10007, (917)815-8530, (212)661-5844(fax) Attorney for Respondent The Board of Elections, By: Stephen Edward Kitzinger, Esq., NYC Law Department, 100 Church Street, RM 2126, New York, NY 10007-2601, (212) 356-2087
Attorney for Petitioners, By: John Ciampoli, Esq., Messina, Perillo and Hill LLP 285 W Main St. Ste 203, Sayville, New York 11782, Tel: (631) 582-9422 Cell: (518) 522-3054, Fax: (516) 450-3473
Respondent Danniel Maio, represented himself pro se, Attorney for Respondents Stephen Weiner, Betty-Ann Hogan and Daniel Nobel, By: Stephen H. Weiner, Esq., Law Office of Stephen H. Weiner, 200 Park Avenue, Suite 1700, New York, New York 10166, (212) 566-4669, (646) 349-1679 (fax)
Attorney for Respondents Catherine Warshell, Stephen Sirgiovanni, Susan B. Erlebacher, Philip A. Mcmanus, Margaret Wagner, Yanling Z. Wagner, Joseph R. Concannon, Phil Orenstein, Angelo King, Alex Amoroso, Anita Uppal, David Abraham, Kathy Wu Parrino, and Craig K. Tyson, By: Craig K. Tyson, Esq., Law Office of Craig K. Tyson, 299 Broadway, Suite 800, New York, New York 10007, (917)815-8530, (212)661-5844(fax)
Attorney for Respondent The Board of Elections, By: Stephen Edward Kitzinger, Esq., NYC Law Department, 100 Church Street, RM 2126, New York, NY 10007-2601, (212) 356-2087
Robert I. Caloras, J.
The following numbered papers read on this application by petitioners for 1) granting the above captioned petitioners motion to renew/reargue/reopen this matter; and 2) setting a date for the trial and hearing of this matter; and 3) restoring this case to the active docket of this Court; and 4) upon rehearing/renewal of the reopened case, declaring insufficient, defective, invalid, fraudulent, null, void, and ineffective the Republican designating petitions of all respondent candidates for their respective party positions and/or public offices filed with the New York City Board of Elections for the June 22, 2021 Republican primary election; and 5) enjoining, restraining, and prohibiting the respondent New York City Board of Elections from placing respondents’ names on the ballot as Republican candidates in the June 22, 2021 Republican Primary Election, Queens County, City and State of New York, and 6) awarding petitioners a default judgment as against any/all respondents who did not appear in this proceeding on the original (or adjourned) return date(s) of this matter; and 7) awarding petitioners such other and further relief as this Court deems to be just and proper.
Papers Numbered
Order to Show Cause - Affirmation — Exhibits EF 45-49
Notices of Cross Motion - Affidavits — Exhibits EF 50-59
Affidavit of Facts — Exhibits EF 60-67
Answering Affidavits-Exhibits EF 68-84
Upon the foregoing papers it is ordered and adjudged that the application is determined as follows:
This Election matter, relating to the Primary Election of June 22, 2021, was first heard by this Court on April 15, 2021, wherein petitioners brought a proceeding to invalidate the candidacies of a number of Republican candidates for public offices and party positions. Subsequent to the filing of this proceeding, two related matters were brought before the Honorable Timothy J. Dufficy: Matter of Wagner v Elasser, (Sup Ct, Queens County, Apr. 23, 2021, Dufficy, J., index No. 708902/2021), and Matter of Murray v Simon (Sup Ct, Queens County, Apr. 23, 2021, Dufficy, J., index No. 708972/2021.) In the Matter of Wagner v Elasser , Justice Dufficy affirmed the determination of Board of Elections in the City of New York (Board of Elections) to invalidate the petitions of the Wagner candidates, which included many of the respondent candidates in this matter. Justice Dufficy also ruled that the petitions were invalid in the Matter of Murray v Simon proceeding.
In light of the foregoing, this Court dismissed the invalidating petition in this proceeding as moot. However, upon the appeal of Matter of Wagner v Elasser , the Appellate Division reversed the trial court's decision and reinstated the respondent candidates to the ballot. ( Matter of Wagner v Elasser , ––– AD3d ––––, 2021 NY Slip Op 03135 [2nd Dept May 13, 2021].) The Matter of Murray v Simon was also appealed, and Justice Dufficy's decision was affirmed. ( Matter of Murray v Simon, ––– AD3d ––––, 2021 NY Slip Op 03136 [2nd Dept May 13, 2021].) As a consequence of the foregoing, petitioners herein brought the instant application seeking, among other relief, that this Court restore this matter and hold a hearing to declare the petitions of the respondent candidates to be invalid.
The hearing in this matter was held on June 7, 2021, and June 8, 2021. Initially, this Court granted the branch of the application seeking that the matter be restored for a hearing, and denied the cross motion of respondents Stephen H. Weiner, Esq., pro se, and on behalf respondents Betty-Ann Hogan and Daniel Noble, that the motion be denied and the petition dismissed on the ground of laches.
This Court next granted the application of petitioners to affirm the ruling of the Board of Elections that the following candidates be removed from the ballot for submitting an insufficient number of signatures: James. J Martinosky, Regina Michelle Landi, Donovan H. Sybliss, Martin Hightower, Enid H. Goldstein, Aldo J. Solares, Fernando J. Acosta, Melody Rudman, Isak Khaimov, Ruben D. Cruz II.
Petitioners made a further application that two respondent candidates’ petitions be invalidated on the ground that they filed simultaneous cover sheets, citing the determination of the Appellate Division in Matter of Murray v Simon. In that case, it was held that, insofar as the last filed cover sheet filed with the Board of Elections is deemed to be controlling, a petition must be invalidated where simultaneous time-stamps render it impossible to determine which petition was filed last. ( Id. ) This Court ruled the precedent of Matter of Murray v Simon to be controlling and affirmed the finding of respondent Board of Elections that the petitions of respondents Phil Orenstein and Anita Uppal were invalid.
The court heard the testimony of respondent Danniel Maio (Maio), candidate for Queens Borough President. Maio is the president of the Central Queens Republican Club. Petitioners maintain that the petitions of all of the named respondents must be declared invalid due to alleged permeating fraud on the part of Maio. It is undisputed that Maio filed documents for all respondents with the Board of Elections, represented nearly all of them before the Board of Elections and listed himself as the contact person for the respondent candidates. Petitioners contend that among other irregularities, Maio placed the names of the following petitioners/aggrieved candidates: Michael Conigliaro, (Conigliaro) ; Martin R. Jeffcoat (Jeffcoat) ; Felicia Kalan (Kalan) ; and Vanessa Pollie Simon (Simon) , on the petitions that he prepared, circulated for signature and ultimately filed with the Board of Elections, all without said candidates’ knowledge or consent. Petitioners maintain that Maio continued these actions until he received a formal "cease and desist" letter from petitioner Joann Ariola, (Ariola), the Chairwoman of the Queens Republican Party County Committee (County Committee), on March 13, 2021.
Candidate for member of the City Council, 29th Council District
Candidate for member of the City Council 26th Council District
Candidate for member of the City Council 22nd Council District and candidate for Female Member of the Republican State Committee, 36th Assembly District.
Candidate for member of the City Council, 31st Council District.
Respondent Maio testified as the court's witness. No other witnesses were heard. The affidavits of petitioner candidates Conigliaro, Jeffcoat, Kalan and Ariola were also made a part of the court's record. Maio testified that he invited Conigliaro, Jeffcoat and Kalan to the Central Queens Republican Club's Candidates Night meeting held on January 27, 2021. Simon had not yet declared her candidacy and Kalan declined the invitation. Jeffcoat attended the meeting and Conigliaro was represented by a volunteer member of his campaign. Maio testified that he prepared copies of proposed petitions with Conigliaro's and Jeffcoat's names on them. He testified that he showed the petitions to Jeffcoat and maintained that Conigliaro's representative made no objection when shown the petition with Conigolaro's name on it. However, Maio testified that none of the four candidates ever explicitly authorized Maio to place their names on the petitions, never gave him permission to use their names and never asked him to circulate petitions for them. Maio admitted that he placed Kalan's name on the petition even after she declined to attend the meeting. He further testified that he reached out to Kalan about using her name on the petitions, but she did not respond. Maio testified it was his belief that the candidates implicitly agreed to be listed on the petitions since they did not object when shown the proposed petitions.
Maio testified that he used Jeffcoat's, Conigliaro's and Kalan's names on the petitions despite his knowledge that they were candidates endorsed by the County Committee. He stated he was unaware of when Simon was endorsed by the County Committee. Regardless, he circulated petitions with these four names knowing each either had been endorsed by the County Committee or had sought its endorsement. Moreover, he testified that he never sought the approval of the County Committee before placing the four petitioner candidates’ names on his petitions.
Conigliaro submitted an affidavit dated June 7, 2021, stating that he did not "and would not seek the backing of a group that was insurgent against my party." He further stated that upon seeing the petition that included him as a candidate, he immediately contacted the leadership of the County Committee to stop the unauthorized use of his name. Jeffcoat submitted an affidavit that also stated that he did not ever seek Maio's support and that the use of Jeffcoat's name was unauthorized. Chairwoman Ariola submitted an affidavit and Kalan submitted a statement that was not notarized.
Maio began circulating petitions on March 2, 2021. The petitions had all four of the petitioner candidates’ names on them. Maio testified that he did not communicate with any of the four petitioner candidates about using their names in the time period between the January meeting and the circulation of petitions. Maio testified that the petitions were circulated until March 12, 2021. He received the ‘cease and desist’ letter on March 13, 2021. Upon receipt of the letter, Maio maintained that he reprinted the petitions without the petitioner candidates’ names on them and circulated new petitions. However, notwithstanding his knowledge of the ‘cease and desist’ letter, Maio testified that he filed the original petitions, containing the four petitioner candidates’ names, with the Board of Elections.
This Court, having conducted the hearing and having heard the testimony, reviewed the papers submitted and based upon the evidence, finds as follows:
The Court finds the testimony of Danniel Maio to have been credible in part and not credible in part. The testimony has established that there was fraud with regard to the filing of the petitions in this matter. The court finds that Mr. Maio had, at best, implied consent from petitioner candidates Martin R. Jeffcoat and Michael Conigliaro. Regarding Simon, at best, he had a hint of her implied request for his support. Regarding Kalan, Maio's only contact was her declining his invitation to attend the January 27 meeting. In fact, he received no response to his email to Kalan asking if he could use her name on his petitions. Notwithstanding the foregoing, their names appeared on the petitions circulated by Maio and members of his club.
Maio's testimony further established that he knew that the four petitioner candidates were seeking the endorsement of the County Committee and, therefore, was aware of the implications of placing the petitioner candidates’ names on the petitions he created. These actions were intentional and meant to mislead others who relied upon those petitions. As is well established by the caselaw reviewed by this Court, such actions constitute permeating fraud. ( Matter of Richardson v Luizzo , 45 NY2d 789 [1978], affirming 64 AD2d 942 [2nd Dept 1978] ; Matter of Lufty v Gangemi , 35 NY2d 179 [1974] ; Matter of Lynch v Duffy , 172 AD3d 1370 [2nd Dept 2019].) Maio's active involvement as the agent for other candidates seeking public office and party positions with petitions bearing the names of non-consenting individuals strongly suggests the intent to deceive. ( Id. at 1373 ; see, Matter of Fischer v Peragine , 10 AD3d 620 [2nd Dept 2004].) The actions taken by Maio after receiving the cease and desist letter did nothing to mitigate the element of intent. Maio's testimony made clear that he is not a novice to politics and that he understood the implications of using the petitioner candidates’ names on his petitions while they were seeking the County Committee's endorsement.
Having found the elements of fraud and permeation, the court must consider the extent of the taint. It is undisputed that there were respondent candidates whose petitions did not contain any of the names of the petitioner candidates notwithstanding the existence of Maio's name on their cover sheets. Accordingly, the Court finds that the permeation does not extend to those respondent candidates. However, the petitions of any respondent candidate who submitted a petition including the names of any one of the non-consenting petitioner candidates are invalidated.
Based upon the foregoing, it is
ORDERED and ADJUDGED that the petition is granted to the extent that the Court affirms the ruling of respondent Board of Elections that the petitions of the following respondent candidates are invalidated for insufficient signatures: JAMES J. MARTINOWSKI; REGINA MICHELLE LANDI; DONOVAN H. SYBLISS; MARTIN HIGHTOWER; ENID H. GOLDSTEIN; ALDO J. SOLARES, FERNANDO J. ACOSTA; MELODY RUDMAN; ISAK KHAIMOV, RUBEN D. CRUZ II; and it is further
ORDERED and ADJUDGED That the petition is granted to the extent that the court affirms the ruling of respondent Board of Elections that the petitions numbered QN2100091 and QN2100092, and filed on behalf of the respondent candidates PHIL ORENSTEIN and ANITA UPPAL, are invalidated for cover sheet defects; and it is further
ORDERED and ADJUDGED that the petition is granted to the extent that in so finding permeation with fraud, the court has determined that the petitions of the following respondent candidates are invalidated: DANNIEL MAIO; PHILIP A. MCMANUS, JR; MARGARET WAGNER; DANIEL NOBLE; DAVID ABRAHAM; YANGLING Z. WAGNER; STEPHEN H. WEINER; KATHY WU PARRINO and BETTY HOGAN; and it is further
ORDERED and ADJUDGED that the cross motion of respondents STEPHEN H. WEINER; DANIEL NOBLE and BETTY HOGAN is denied, as has been previously set forth in this Order and Judgment; and it is further
ORDERED and ADJUDGED that the cross motion of Respondents CRAIG TYSON, KATHY WU PARRINO; PHILIP A. MCMANUS, JR.; MARGARET WAGNER; PHIL ORENSTEIN; ANITA UPPAL; SUSAN B. ERLEBACHER; DAVID ABRAHAM; YANGLING Z. WAGNER; MARTIN HIGHTOWER; JOSEPH R. CONCANNON; CATHERINE WASHELL; ALEX AMOROSO; ANGELO KING and STEPHEN A. SIRGIOVANNI is denied as moot; and it is further
ORDERED and ADJUDGED that during the pendency of this proceeding and in any proceedings related to this matter, respondent DANNIEL MAIO, is hereby prohibited from making any further contact with candidate respondents MICHAEL CONIGLIARO, MARTIN R. JEFFCOAT, FELICIA KALAN or VANESSA POLLIE SIMON, and it is further
ORDERED and ADJUDGED that the respondent Board of Elections in the City of New York is hereby restrained, enjoined and prohibited from counting or tallying any votes cast in the Republican Primary Election, Queens County, State of New York scheduled to be held on June 22, 2021, for respondents DANNIEL MAIO; PHILIP A. MCMANUS, JR; MARGARET WAGNER; DANIEL NOBLE; DAVID ABRAHAM; YANGLING Z. WAGNER; STEPHEN H. WEINER; KATHY WU PARRINO and BETTY HOGAN, as said votes shall be deemed void.
This constitutes the Order and Judgment of this Court.