Opinion
Index No. EF002872-2023
05-11-2023
In the Matter of the Application of Susan L. Cockbum, Petitioner, v. L. Stephen Brescia, Katherine I. Miller, and the Orange County Board of Elections, Respondents. For an Order Pursuant to Section 16-102 of the Election Law, Declaring Valid the Petition filed by or on behalf of Susan Cockbum with the Orange County Board of Elections, on April 10, 2023, seeking to Designate her as a Candidate for Nomination by the Democratic Party to the Public Office of Supervisor, Town of Montgomery.
Rebekah Nellis Kennedy, Esq. Attorney for the Petitioner RICHARD B. GOLDEN County Attorney for Orange County Attorney for Respondent Board of Elections Fusco Law Office For the Respondents L. Stephen Brescia and Katherine J. Miller
Unpublished Opinion
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
Rebekah Nellis Kennedy, Esq. Attorney for the Petitioner
RICHARD B. GOLDEN County Attorney for Orange County Attorney for Respondent Board of Elections
Fusco Law Office For the Respondents L. Stephen Brescia and Katherine J. Miller
DECISION, ORDER AND JUDGMENT
HON. DAVID J. SQUIRRELL, J.S.C.
The following papers numbered 1 to 7 were read and considered on (1) a petition, pursuant to section 16-102 of the Election Law, to declare a nominating petition valid; (2) a motion by the Respondent Orange County Board of Election, pursuant to CPLR Section 3211 (a)(5), to dismiss the petition insofar as asserted against it as time-barred; and (3) a motion by the Respondents L. Stephen Brescia and Katherine J. Miller, pursuant to CPLR Sections 3211 (a) (2); 3211 (a)(5); 3211 (a)(7), 3211 (a)(8), and 3211 (a)(10), to dismiss the petition insofar as asserted against them.
Notice of Petition and Petition- Exhibits A-G2 ........................1-2
Notice of Motion- Cardoso Affirmation- Memorandum of Law ..................3-5
Order to Show Cause- Fusco Affirmation ...........................5-7
Upon the foregoing papers, it is hereby, ORDERED, ADJUDGED and DECREED, that the petition is denied and the proceeding is dismissed as time-barred, and that the motions are granted.
Factual/Procedural Background
The following background facts do not appear in dispute.
On April 10,2023, the Petitioner Susan L. Cockbum filed a petition with the Respondent Orange County Board of Elections (hereinafter "OCBOE") nominating herself as the Democratic candidate for the position of Supervisor .for the Town of Montgomery.
On April 13,2023, and April 19,2023, the Respondent Katherine Miller, a voter, filed objections to the petition.
On April 28,2023, the OCBOE issued a final determination on the objections, finding only 239 of the 304 proffered signatures to be valid. Because 240 signatures were required, the petition was invalidated.
The remaining allegations are in dispute.
The Petition commenced this proceeding pursuant to Election Law § 16-102 (2) to have her nominating petition declared valid.
The Petitioner alleges that the OCBOE erroneously invalidated numerous signatures and that, when corrected, she has the required amount of signatures. [The Petitioner's specific factual arguments will be addressed infra in the analysis.]
All Respondents move to dismiss the petition as time-barred. The petition is dismissed as time-barred.
Discussion/Legal Analysis
Pursuant to Election Law § 16-100: "The supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to any subject set forth in this article, which shall be construed liberally."
Pursuant to Election Law § 16-102, the Court has the authority to review challenges to nominating petitions.
The Legislature, in enacting Election Law § 16-100 and its predecessor, intended to provide access to a judicial forum in order to redress alleged abuses or irregularities in the electoral process, especially administrative errors. Pell v. Coveney, 37 N.Y.2d 494 (1975). To this end the courts have been vested with broad powers to review, correct and thus maintain the integrity of elections generally. Pell v. Coveney, 37 N.Y.2d 494 (1975). For example, the Supreme Court has jurisdiction to entertain objections to signatures on designating petitions, even where an objector asserts grounds other than those asserted before the Board of Elections. Venuti v. Westchester County Bd. of Elections, 43 A.D.3d 482 [2nd Dept. 2007]; Smith v. Marchi, 143 A.D.2d 325 [2nd Dept. 1988].
However, the Legislature recognized that such judicial review would only be effective if it was achieved expeditiously. Accordingly, a brief period of limitations was incorporated. Pell v. Coveney, 37 N.Y.2d 494 (1975).
In relevant part, Election Law § 16-102(2) provides that a proceeding must commenced "within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition."
The Second Department has held that a proceeding is timely for purposes of this section only if the petition is both filed and served on all parties within the period of limitation. Stora v. New York State Board of Elections, 208 A.D.3d 1213 [2nd Dept. 2022].
Here, as a threshold issue, the proceeding was not timely commenced.
The OCBOE rendered its final determination on April 28,2023.
Thus, the Petitioner had three business days to commence this proceeding, i.e., until May 3,2023.
However, the Court notes, the Petitioner did not file her order to show cause and petition until 4:26 p.m. on May 3,2022, which is only 34 minutes before the end of the last business for filing. Consequently, the order to show cause and petition were not processed and before this Court for signature until May 4,2023, which is after the expiration of the period of limitation. Indeed, the Court notes, the Petitioner could not have reasonably believed that her petition would be processed, signed and returned, and that service of the same could be completed, in the last 34 minutes of the last business day for filing. This is especially true here, where the first judge assigned the case needed to recuse. In sum, the proceeding was untimely when the order to show cause was signed. Accordingly, that the order to show cause, as signed by the Court, provides for a service date of May 5,2023, is academic, and of no force and effect.
Thus, the proceeding must be dismissed as time-barred.
The Court notes that, if the merits of the Petitioner's arguments were reached, which they are not because the petition is time-barred, the arguments would be found meritorious.
The Court will address the Petitioner's arguments in seriatim,
The OCBOE invalidated all signatures on sheet 2 of the petition because the witness statement indicates there are 20 signatures on the sheet when there was only 19 because the signature on line 3 was crossed out.
However, upon scrutiny of line 3, especially magnified, the Court agrees with the Petitioner that the signature was not crossed out, but rather contains flourishes, including horizontal lines, which might be mistaken for such. Thus, there were in fact 20 signatures on the sheet.
In any event, the Court notes, absent any allegation of fraud, the overstatement of the signature totals on a petition does not constitute such a gross irregularity as to warrant invalidation of the entire sheet. VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014].
Thus, if reached, sheet 2 and all of the signatures thereon would be found valid.
The OCBOE sustained an objection to sheet 6 on the same basis, to wit: 16 signatures are listed in the witness statement, while there are 17 signatures on sheet.
However, upon scrutiny of sheet, especially magnified, the Court agrees with the Petitioner that a single signature covers lines 14 and 15. It is not two separate signatures. Indeed, in addition to the signature crossing over the dividing line between the spaces, there is only one address listed on line 14. Thus, there are in fact only 16 signatures on the sheet.
In any event, absent any allegation of fraud, the overstatement of the signature totals on a petition does not constitute such a gross irregularity as to warrant invalidation of the entire sheet. VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014].
Thus, if reached, sheet 2 and all of the signatures thereon would be found valid.
The OCBOE invalidated sheet 7 because the date of the witness statement was changed from March 1,2023, to April 1,2023.
However, while alterations to a witness statement that are unexplained and uninitialed will ordinarily result in the invalidation of the petition sheet, even where the alterations result in the provision of correct information, the underlying signatures need not be nullified where an explanation is provided by affidavit or testimony. Mills v, New York State Board of Elections, 207 A.D.3d 943 ]3rd Dept. 2022]; VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014]; see also, Grancio v. Coveney, 60 N.Y.2d 608 (1983).
Here, the Petitioner submitted the affidavit from the attesting witness, Faheem Haider, who averred that he signed the sheet on the first day of April, but initially incorrectly wrote a "3" to indicate March. Haider avers that he immediately noticed the error wrote the date correctly as April 1,2023, and that the correction was not meant to deceive or conceal.
Thus, if reached, sheet 7 and all of the signatures thereon would be found valid.
. The OCBOE invalidated all signatures on sheet 17 of the petition because 11 signatures are listed in the witness statement, whereas only 10 signatures appear on the sheet because the signatures on lines 7 &8 are crossed out.
However, the Petitioner submitted an affidavit of the witness, Karina Tipton, who averred that she struck and properly initialed the signature on line 8, but then accidently started to strike the signature on line 7, which was a mistake and unintended. She denies any intent to deceive or conceal.
The Court finds this a sufficient explanation. Mills v. New York State Board of Elections, 207 A.D.3d 943 ]3rd Dept. 2022]; VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014]; see also, Grancio v. Coveney, 60 N.Y.2d 608 (1983).
Moreover, absent any allegation of fraud, the overstatement of the signature totals on a petition does not constitute such a gross irregularity as to warrant invalidation of the entire sheet. VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014].
Thus, if reached, sheet 17 and all of the signatures thereon would be found valid.
The OCBOE invalidate sheet 20 of the petition because there was an uninitialed edit to the witness statement changing the signatory count from 16 to 15.
However, the Court notes, upon its own scrutiny of the sheet, the Court does not discern what appears to be an alteration to the number of witnesses.
Indeed, the Court notes, the Petitioner submitted an affidavit from the attesting witness, Karina Tipton, who avers that any variation as to the digit "5" resulted from "a pen strike/pen snag on paper, or an error while writing the number "15"."
The Court finds this a sufficient explanation. Mills v. New York State Board of Elections, 207 A.D.3d 943 ]3rd Dept. 2022]; VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014]; see also, Grancio v. Coveney, 60 N.Y.2d 608 (1983).
Moreover, absent any allegation of fraud, the overstatement of the signature totals on a petition docs not constitute such a gross irregularity as to warrant invalidation of the entire sheet. VanSavage v. Jones, 120 A.D.3d 887 [3rd Dept. 2014].
Thus, if reached, sheet 20 and all of the signatures thereon would be found valid.
The OCBOE also invalidated various other individual signatures based on uninitialed changes to the date of the same on sheet 1, lines 13 and 14; sheet 5, line 20; sheet 10, line 9 and line 11; and sheet 15 line 2.
However, for each instance, the Petitioner proffered an affidavit from the relevant party attesting to a valid reason for the changes.
Thus, if reached, all of the signature so challenged would be found valid.
The OCBOE invalidated signatures on sheet 6, line 12; sheet 14, line 6 and 19 on the ground that there was only a printed name, not a signature.
Initially, the Court notes, it has not found a definition of "signature" in the Election Law itself. See e.g., Election Law § 1-104.
However, General Construction Law § 46 provides:
The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.See Teets v. Belcher, 42 Misc,3d 513 [Marks, J.; S.Ct. 2013][applying the definition in an Election Law case].
Here, for each instance identified, the Petitioner submitted an affidavit from the voter stating that the entry on the petition was in fact their "signature."
This is a sufficient explanation and signatures should have been held valid. Cf, Lord v. New York State Bd. of Elections, 98 A.D.3d 622 [2nd Dept. 2012]. Thus, if reached, the Court would find all such signatures valid.
In sum, if reached, the Court would have upheld the Petitioner's challenges to the invalidations as set forth herein.
Accordingly, and for the reasons stated herein, it is hereby, .
ORDERED, ADJUDGED and DECREED, that petition is denied and the proceeding is dismissed, and that the motions are granted.
The foregoing constitutes the decision and order of the court.