Opinion
707946/2021
04-19-2021
In the Matter of the Application of Devian Shondel DANIELS, Petitioner, as designated for the public office or party position of Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy No. 12, Queens County, City of New York, v. COMMISSIONERS OF ELECTIONS OF the CITY OF NEW YORK and the Board of Elections in the City of New York, Respondents, for an order declaring valid the designating petition which designated the petitioner for the public office or party position of Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy No. 12, Queens County, City of New York, State of New York, in the Democratic Primary Election to be held on June 22, 2021.
Petitioner's attorney, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880. Respondent's attorney, Stephen Edward Kitzinger, Esq., NYC Law Department, 100 Church Street, RM 2126, New York, NY 10007-2601, (212) 356-2087.
Petitioner's attorney, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880.
Respondent's attorney, 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 E1-E9 read on this application by petitioner for an order declaring valid the designating petition which designated the petitioner for the public office or party position of Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy #12, Queens County, City of New York, State of New York, in the Democratic Primary Election to be held on June 22, 2021.
Papers Numbered
Petition-Exhibits-Proposed Order to Show Cause—Aff E1-7
Order to Show Cause E8
Affidavit of Service E9
It has come to this Court's attention that the Order and Judgment issued on April 19, 2021 included the wrong Part Number and the wrong date. Accordingly, this Court sua sponte recalls and vacates the Order and Judgment issued on April 19, 2021 and issues the following in its place and stead:
Upon the foregoing papers it is ordered and adjudged that the application is granted, for the following reasons:
The instant petition is brought by Devian Shondel Daniels, who seeks an order from this court as more fully set forth above.
According to the Petition, on or about the 25th day of March, 2021, a Designating petition was duly filed in the office of the Board of Elections in the City of New York designating your Petitioner DEVIAN SHONDEL DANIELS, as a candidate for the public office or party position of Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy #12, Queens County, City of New York, in the Democratic Primary Election to be held on June 22, 2021. Petitioner claims she is duly qualified and eligible for the said designation and is qualified and eligible to serve in the said aforementioned office or position and her Designating petition was and is due and proper form as prescribed by law and contains more than the minimum number of signatures of duly enrolled voters in Democratic Party in the Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy #12, Queens County, City of New York, for which the nomination was made, and the petition is otherwise valid, proper, sufficient and legally effective.
The Petition further claims that, after the filing of the said Designating petition as aforesaid, no written specification on objections to the aforesaid petition were filed in the office of the Board of Elections by any objectors. On March 26, 2021, the respondent purportedly overnighted a letter to petitioner's contact person. Apparently, the letter was not sent until after 6:30 pm so it could not make the US Post Office 5:00 pm overnight mail cutoff. The petitioner's contact person corrected the failure to set forth a number of volumes on the cover sheet by timely filing an amended cover sheet on April 1, 2021. Thereafter without any notice to your petitioner, and without giving your petitioner an opportunity to be heard, the petitioner was removed since she was purportedly one day late in submitting that cover sheet.
Petitioner claims this determination was and is improper on the following grounds:
First, the respondent did not give three full business days to correct the error by filling in the number of volumes as one. Thus, due to the overnight mail not actually getting to the Post Office until the following business day, Monday, March 29, 2021, the petitioner had until April 1, 2021 to correct the miniscule error. As such, the amended cover sheet, served on April 1 was timely and it is totally proper in form and corrects the defect of the failure to set forth the number of volumes as one in the initial cover sheet. Petitioner also claims notice of the non-compliance was improper since, under respondent's own rules, it must give email and fax notice. Petitioner argues that since respondent failed to provide such notice to petitioner, the removal should be reversed.
Second, the failure to list the number of volumes on the original cover sheet is minor in nature. While petitioner only listed one volume on the original cover sheet without filling in the actual numbers of volumes, she did correctly set forth the single volume's sole proper identification number. The respondent could easily discern there was only one volume in the entire filing. Significantly, no fraud or any misconduct has been alleged and the petition contains a sufficient number of signatures, to qualify for this office. Consequently, petitioner argues these minor errors or discrepancies are insufficient for the respondent to override the right of elective franchise and as such should be overturned by this Court under Section 16-100 of the Election Law.
Respondent has not submitted written opposition to this Petition. However, on April 16, 2021, this Court conducted a hearing on the Petition and respondent orally opposed and claimed its notice of non-compliance was in all respects proper and in compliance with the rules of the Board of Elections of New York City and the cited non-compliance was not minor. The Court notes, respondent was offered the opportunity to submit written opposition, however it indicated satisfaction with presenting its claims orally at the hearing. Moreover, petitioner did not indicate any disagreement with respondent presenting opposition in this manner.
Based on the materials and arguments presented at the hearing regarding the notice of non-compliance and the cure by petitioner, the Court finds that, contrary to petitioner's claim, the notice was in compliance with the rules of the Board entitled Designating Petition and Opportunity to Ballot Petition Rules for Primary Election (Adopted February 12, 2019), pursuant to Election Law Section 6-154. In pertinent part, Determinations; Cures Pursuant to Section 6-134 (2), provides:
D3 Notification of a determination of noncompliance shall be given by written notice by depositing such notice on the day of such determination with an overnight delivery service, for overnight delivery, on the next business day after the determination to either the candidate, the contact person, if designated, or the first person named on the committee to fill vacancies, at the address stated on the election document. If the candidate files with the Board written authorization, signed by the candidate, for the Board to give notification by fax or e-mail transmission, then the Board may, at its discretion, send such notice to the candidate or contact person by e-mail to the e-mail address or by fax transmission to the number set forth on the signed written authorization on the day of the determination. The failure to send such voluntary fax or e-mail notice shall not void the written notice sent by mail or to extend the date for the cure of any defect in the election document.
D4. A candidate may, within three (3) business days of the date of a determination that the election document does not comply with the Election Law and/or these Rules, cure said violation, if permitted by the Election Law. Cover sheet deficiencies shall be corrected by the filing of an amended cover sheet and/or as directed in the notice of non-compliance issued pursuant to Rule C. Such cure or correction must be received by the Board no later than the third business day following such determination. Failure to timely file such a cure is a fatal defect.
Here, the determination of non-compliance was made on March 26, 2021. A non-compliance letter was written on that same date and was delivered to petitioner's contact person by way of United States Postal Service Priority Mail Express (USPC overnight delivery). The letter was accepted by the Postal Service for this service at about 8:00p.m. on March 26, 2021 and an expected delivery date of March 29, 2021 was indicated on the receipt. March 26 was a Friday and March 29 was the next business day. Thus, the third business day from the March 26, 2021 determination was March 31, 2021. Petitioner concedes that she did not file her amended cover sheet until April 1, 2021. Petitioner's argument regarding respondent's late delivery of the notice to the Postal Service is to no avail. First, the Postal Service accepted the notice and marked it as "Express". There is insufficient evidence to suggest this was not a viable marking and the notice would not be delivered as indicated. Furthermore, the indicated delivery date was the next business day. Accordingly, respondent's notice of non-compliance complied with its Rules and petitioner's amended cover sheet was filed late. The Court notes, given the extremely short periods of time provided in the Rules for notices and cures, perhaps an increased use of e-mail services should be provided by these Rules.
However, the Court finds, the failure to list the number of volumes on the original cover sheet is minor in nature. Regarding cover sheets, Pursuant to Election Law § 6-134 (2) :
Sheets of a designating petition shall be delivered to the board of elections in the manner prescribed by regulations that shall be promulgated by the state board of elections, provided, however, that the sheets of any volume of a petition shall be numbered. Such regulations shall be no more restrictive than is reasonably necessary for the processing of such petitions by the board of elections. Such regulations shall be binding on the boards of election in each county and in the city of New York. When a determination is made that a designating petition does not comply with such regulations, the candidate shall have three business days from the date of such determination to cure the violation.
Election Law § 6-134 (10) provides that:
The provisions of this section shall be liberally construed, not inconsistent with substantial compliance thereto with the prevention of fraud.
Based upon this provision, substantial compliance with the cover sheet requirements of the rules and regulations of the New York State Board of Elections and the New York City Board of Elections, and not strict compliance, is now the guiding principle (see Matter of Hayon v Greenfield , 109 AD3d 920, 921 [2013] ; Matter of Krance v Chiaramonte , 87 AD3d 669 [2011] lv denied 17 NY3d 706 [2011] ). However, "[w]hile substantial compliance is acceptable as to details of form, there must be strict compliance with statutory commands as to matters of prescribed content" (Matter of Hutson v Bass , 54 NY2d 772, 774 ; Matter of Engert v McNab , 60 NY2d 607, 608 ; Matter of Wilson v McClean , 175 AD2d 935 ; Matter of Fintz v Poveromo , 197 AD2d 944, 945 ). Consequently, under these principles, the failure to include on the cover sheet of the designating petition the information set forth in Election Law § 6-134, subdivision 2 was a matter of content, not form, and the omission of any of this prescribed information was fatal and invalidated the petition (Matter of Hutson v Bass , supra, at 773; Matter of Smith v Mahoney , 60 NY2d 596, 597 ).
Here, the respondent's ground for non-compliance was petitioner's failure to list the number of volumes on the original cover sheet since she failed to fill in the actual numbers of volumes by correctly setting forth that one volume was submitted along with the single volume's sole proper identification number. At the hearing, respondent did not claim this error in any way hindered its ability to process and review the submitted petitions. Nor did respondent claim this cover sheet error would in any way limit another person (rival candidate or aggrieved voter or interested person) from reviewing the submitted petitions. Rather, respondent expressed concerns that the failure to properly number the volume could perhaps allow the petitioner to file additional volumes at a later date and such would, to some extent, hinder appropriate review. Respondent qualified this concern by noting that any such action could be countered by another person's diligence and/or filing of a pre-emptive petition to deem petitioner's petitions invalid.
Significantly, there is no claim that the "mistake" defrauded or misled the public or was used for any improper purpose. In fact, the original cover sheet's error in no way hindered the Board from assessing only one volume had been filed and correctly identifying this volume. Moreover, there is nothing to indicate the submitted petitions were not proper and sufficient. Consequently, this Court finds the error to have been minor. As such, the cover sheet was in substantial compliance with the requirements and did not implicate policy considerations that should prevent petitioner from being on the ballot and allowing the electorate to exercise their voting rights (see, Matter of Flacks v. Board of Elections in the City of NY, 109 AD3d 423 ). Accordingly, under the circumstances of this case, it was improper for the Board of Elections to conclude that there was a fatal defect, rendering petitioner ineligible for the ballot, and
It is hereby
ORDERED and ADJUDGED that the petition is granted and the designating petition which designated the petitioner for the public office or party position of Judge of the Civil Court of the City of New York, from the 4th Municipal District, Assigned Vacancy #12, Queens County, City of New York, State of New York, in the Democratic Primary Election to be held on June 22, 2021 is declared valid.