Opinion
05-31-2024
In the Matter of Londel DAVIS, Jr., et al., Petitioners-Respondents, v. Joshua A. CLENNON, Respondent-Appellant, The Board of Elections in the City of New York, Respondent.
Alter & Barbaro, Brooklyn (Bernard M. Alter of counsel), for appellant. Paul D. Newell, New York, for respondents.
Alter & Barbaro, Brooklyn (Bernard M. Alter of counsel), for appellant.
Paul D. Newell, New York, for respondents.
Oing, J.P., Friedman, González, Rodriguez, O’Neill Levy, JJ.
Judgment, Supreme Court, New York County (Richard G. Latin, J.), entered May 6, 2024, which, among other things, disaffirmed the report of the Referee and invalidated the designating petition of respondent-appellant, Joshua A. Clennon, unanimously affirmed, without costs.
Petitioners sought to invalidate a petition designating Joshua A. Clennon as a candidate in the Democratic Party primary election to be held on June 25, 2024, for the public office of Member of the Assembly on the grounds that, among other things, a subscribing witness, Justinn Green, listed the wrong address as his residence on the petition sheets. The petition shows that the subscribing witness listed his residence as 2255 Bronxwood Avenue, Bronx, New York. However, during his testimony before the Special Referee, Mr. Green testified that he has two addresses, the 2255 Bronxwood Avenue address, which is associated with his voter registration and the address disclosed on the petition sheets, and a different address, 1332 Commerce Avenue, Bronx, New York, which is where he resides. Thus, Mr. Green’s residence, or the address where he lives, is not the address disclosed on the petition sheets.
After a hearing held on April 26, 2024, the Special Referee recommended that the petition be denied because there was no wrongdoing on the part of Mr. Green, and the Election Law merely required that a subscribing witness reside in the state and be enrolled in the political party. Supreme Court rejected the Special Referee’s recommendation and granted the petition to invalidate the challenged designating petitions. The court found that because Mr. Green did not list his residence on the designating petitions, the signatures thereon were invalid. This appeal ensued.
[1] Petitioners and respondent New York City Board of Elections are correct that the time has passed for appellant’s appeal. The Court of Appeals set May 14, 2024 as the date that it would hear election appeals relating to the June 2024 primary election. This scheduling notification required all appeals to this Court to be heard on May 7-8, 2024. Supreme Court entered its judgment on May 6, 2024; appellant filed a notice of appeal on May 10, 2024, and perfected his appeal on May 22, 2024, well beyond the timeline set forth by the Court of Appeals. The record demonstrates that, at this juncture, the inclusion of appellant’s name on the June 25, 2024 primary ballot would not be possible, given that ballots have been printed and mailed (see Matter of Hunter v. Orange County Bd. Of Elections, 11 N.Y.3d 813, 815, 868 N.Y.S.2d 588, 897 N.E.2d 1071 [2008] [finding that "[u]nder the circumstances of this case, it would be impossible, if this Court were to entertain the merits, to render meaningful relief in compliance with the Election Law"]; Matter of Pidot v. Macedo, 141 A.D.3d 680, 681, 36 N.Y.S.3d 188 [2d Dept. 2016]).
[2] Appellant argues that he could not have perfected his appeal any sooner than he did because, under CPLR 5526, he was required to provide this Court with the full transcript, which he did not obtain until May 21, 2024. That argument is unavailing. In the context of an election appeal, applying CPLR 5526 and requiring the full record before perfecting an appeal would be impractical. In fact, the failure to do so has not been found to be grounds for dismissal of an election appeal (see Matter of Freed v. Hill, 176 A.D.2d 1065, 1066, 575 N.Y.S.2d 210 [3d Dept. 1991] [finding that failure to file complete record in accordance with CPLR 5526 does not require dismissal]).
[3–7] In any event, under the Election Law, "[a] person’s residence is based largely on his intent to remain at or return to a specific abode" (Matter of Markowitz v. Gumbs, 122 A.D.2d 906, 907, 505 N.Y.S.2d 948 [2d Dept. 1986], lv denied 68 N.Y.2d 605, 506 N.Y.S.2d 1029, 497 N.E.2d 967 [1986], citing Election Law § 1104[22]). In fact, "[a]s used in the Election Law, the term ‘residence’ is synonymous with ‘domicile’ " (id.; see also Election Law § 101). Under Election Law § 6-132(2), a subscribing witness is required to disclose his or her residence and reside in the state. The purpose of this requirement is to "protect[ ] the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition" (Matter of Pisani v. Kane, 87 A.D.3d 650, 651-652, 928 N.Y.S.2d 363 [2d Dept. 2011], lv denied 17 N.Y.3d 706, 2011 WL 4357216 [2011]). The candidate must show that the subscribing witness’s listed address is indeed the current residence (see Matter of Walfish v. Brezler, 172 A.D.3d 1384, 1384, 101 N.Y.S.3d 277 [2d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2401773 [2019]). The "crucial determination" of whether a particular residence complies with the requirements of the Election Law is that "the individual must manifest an intent to reside there, coupled with physical presence without any aura of sham" (id. at 1385, 101 N.Y.S.3d 277 [internal quotations omitted]). [8] Here, as found by Supreme Court, Mr. Green testified that the residence listed on the petition sheets was the address associated with his voter registration, and not the address at which he resides. This amounts to a failure to comply with the statutory mandate that a subscribing witness disclose his or her residence. Thus, the signatures on the petition sheets signed by Mr. Green, the subscribing witness, must be invalidated (see Matter of Pisani, 87 A.D.3d at 652, 928 N.Y.S.2d 363).
We have considered appellant’s remaining arguments and find them unavailing.