Opinion
Index No. 300-2022
05-04-2022
EUDSON TYSON FRANCOIS, Petitioner, v. ROCKLAND COUNTY BOARD OF ELECTIÒNS and BRITTANY DAVIN and CARMEL REILLY, Respondents, For an Order Pursuant to Article 16 of The New York State Election Law to declare the Validity of a Designating Petition.
Unpublished Opinion
DECISION & ORDER
ROLF M. THORSEN, JUDGE
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.
Petitioner, Eudson Tyson Francois (hereinafter Petitioner), a Democratic candidate for the office of Member of the New York State Assembly, District 97 for the primary election to be held on June 28, 2022, by Order to Show Cause and Petition filed on April 29, 2022, commenced this proceeding pursuant to Election Law Article 16 to validate the Designating Petition he submitted to Respondent, Rockland County Board of Elections (hereinafter RC BoE"). By a determination dated April 26, 2022 and received by Petitioner on April 27, 2022, Respondent RC BoE invalidated Petitioner's Designating Petition. The Court signed the Order to Show Cause and due to the expeditious nature of these proceedings, set the return date for May 2, 2022. On May 2, 2022, the return date of the Order to Show Cause, counsel and the parties appeared in Court at which time this Court heard arguments on various issues and commenced a hearing. The hearing concluded on May 3, 2022.
Respondents Brittany Davin and Carmel Reilly (hereinafter "Respondents-Objectors") filed objections to Petitioner's Designating Petition, a review of which culminated in the RC BoE's determination dated April 26, 2022.
Turning first to Respondents' argument that the Petition mutt be dismissed due to the fact that it was not verified, Election Law §16-116 sets forth, in relevant part, as follows:
A special proceeding under the foregoing provisions of this article shall be heard upon a verified petition....
Election Law §16-116. "This requirement is jurisdictional in nature, and cannot be cured by amendment. Goodman v. Hayduk, 64 A.D.2d 937 (2d Dept.), aff'd, 45 N.Y.2d 804 (1978). Here, the petition sub judice was not verified. Since Petitioner did not comply with the mandate set forth in Election Law §16-116, the petition must be dismissed. See, Matter of Niebauer v. Board of Elections in the City of New York, 76 A.D.3d 660 (2d Dept. 2010). Petitioner's reliance on Matter of Lee v. Orange County Board of Elections, 164 A.D.3d 717 (2d Dept. 2018), is distinguishable as Respondents-Objectors provided notice to Petitioner that his petition was not verified. See, Exhibit 1 attached to Respondents- Objectors verified Answer.
With respect to Respondents' objection regarding Petitioner's failure to properly serve the Order to Show Cause and Petition, the Court found on the record that service was in compliance with the signed Order to Show Cause.
Notwithstanding the above and pursuant to the directive of the Honorable Hector D. LaSalle, Presiding Justice of the Appellate Division, Second Department, this Court conducted a hearing with respect to Petitioner's allegations regarding the validity of his Designating Petition. The evidence adduced at the hearing consisted of the testimony of Kathleen Pietanza, one of the RC BoE Commissioners, as well as several exhibits, which consisted of the RC BoE's decision dated April 26, 2022 invalidating the Designating Petition (Petitioner's Exhibit 1), Respondents-Objectors Specification of Objections (Petitioner's Exhibit 2), RC BoE worksheets and other documents (Petitioner's Exhibit 3), and Petitioner s Designating Petition (Petitioner s Exhibit 4).
By letter dated March 17, 2022, Judge Lasalle requested "that the justices within [the Ninth Judicial District reach and determine the merits of the proceedings before them, even if they have decided to dismiss the proceeding on a purely procedural ground...."
By way of background, Petitioner had submitted a total of 688 signatures, 206 of which were ruled invalid by the RC BoE based upon a review of the objections filed by Respondents-Objectors. See, RC BoE's Verified- Response at ¶ 7. Thus, out of the 500 signatures needed to validate his Designating Petition, Petitioner had 482 valid signatures. Id. Petitioner thus commenced the within . action challenging many of the 206 signatures which the Commissioners found to be invalid. Upon review of the 206 invalidated signatures, it was determined that 57 or 58 of those signatures were the result of a split decision among the Commissioners. of those, the RC BoE conceded that 22 of those signatures should not have been invalidated, bringing his total number of valid signatures to 504. Moreover, Petitioner also challenged the Commissioners decision invalidating all 12 signatures on Petition Sheet #30 due to the fact the Petitioner failed to include his address in the Statement of Witness" located at the bottom of the page.
With respect to the 22 signatures that were the result of a split among the Commissioners, the Court finds that crediting those signatures to Petitioner is warranted. To begin, there is a presumption of validity set forth in Election Law §6-154(1). Moreover, pursuant to Election Law §3-212(2), [a]11 actions of the board shall require a majority vote of the commissioners prescribed by law for such board. Thus, the Board of Elections cannot act when there is a split vote among the two Commissioners. Matter of Lavell v. Baker, 153 A.D.3d 1135, 1137 (4th Dept. 2017), quoting, Matter of Elgin v. Smith, 10 A.D.3d 483, 484 (4th Dept. 2004). Applied here, as the two RC BoE Commissioners could not act without a majority vote, those 22 signatures that were invalidated based upon a split among the commissioners mutt be considered valid in light of the presumption of validity. The Court has reviewed the RC BoE's worksheets (Petitioner's Exhibit 3) and finds that said 22 signatures were not, in fact, credited towards Petitioner's valid signatures and thus, when added to the 482 valid signatures, increases the total number of signatures to 504.
Lastly, the Court also finds that the 12 signatures on Petition Sheet #30 should be considered valid and credited to Petitioner. Election Law §6-132 sets forth the form requirements for designating petitions. Specifically, Section §6-132(2) provides, in relevant part, as follows:
There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state, who is an enrolled voter of the same political party as the voters qualified to sign the petition and who has not previously signed a petition for another candidate for the same office....Election Law §6-132(2). A sample form is provided in the statute, which contains a space for the witness to provide their name and address. The statute also stales that "[t]he form of such statement shall be substantially as follows. In reviewing the Petition submitted by Petitioner (Petitioner's Exhibit 4), Sheets #1 through #41 were all subscribed by Petitioner as a witness. In all but one or those 41 sheets, i.e., Sheet #30, Petitioner provided his name and address in the "Statement of Witness." Moreover, on all 41 sheets, Petitioner's address is printed on the top portion of the sheet, where he is listed as the candidate. as the statute itself requires substantial compliance and not complete or strict compliance, this Court finds that the failure of Petitioner to include his address in the “statement of Witness” on sheet #30 should not have invalidated the entire sheet. See, Matter of Berkowitz v. Harrington, 307 A.D.2d 1002, 1033 (2d Dept. 2003). As such, the 12 signature should be validated and credited towards Petitioner, bringing his total number or signatures to 516.
In fact, Petitioner's address is printed on the top portion of all 74 sheets. See, Petitioner's Exhibit 4.
Based on the foregoing, it is hereby nevertheless
ORDERDD that Petitioner's Petition is denied and the proceeding is dismissed.
The foregoing constitutes the "Decision and Order of this Court.