Opinion
Index No. 510951/24
05-01-2024
In the Matter of the Application of TERESA MAYER, Petitioners-Objectors, v. SABRINA GATES, Respondent-Candidate, and LYDIA B. GREEN Petitioner-Candidate-Aggrieved, BOARD OF ELECTIONS IN THE CITY OF NEW YORK, For an order, pursuant to sections 16-100, 16-102, and 16-116 of the Election Law, declaring invalid and striking out the petition purporting to designate the Respondent-Candidate named herein as a Candidate for the Patty Position of Member of the Democratic State Committee from the 52nd Assembly District, New York State, in the Democratic primary' election to be held on the 25th day of June, 2024, and restraining the Board of Elections from placing the name of said Respondent-Candidate on the ballots to be used at such primary election.
Unpublished Opinion
PRESENT: HON. PETER P. SWEENEY, Justice.
HON. PETER P. SWEENEY, J.S.C.
The following e-filed papers read herein: NYSCEF Doc. Nos.:
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1, 5, 9-12
Opposing Affidavits/Answer (Affirmations) 8
Affidavits/ Affirmations in Reply
Other Papers: BOE voter registration records Exhibits 1-22
Upon the foregoing papers, petitioner-objector Theresa Mayer and petitioner-candidate aggrieved Lydia B. Green (collectively the objectors) seek an order declaring invalid respondent-candidate Sabrina Gates' (respondent-candidate) designating petition for the party position of Member of the Democratic State Committee from the 52nd Assembly District, New York State, in the Democratic primary election to be held on June 25, 2024.
Respondent-candidate filed a designating petition for this position with the New York City Board of Elections (the Board) consisting of three volumes (KG 24000541, KG 24000542 and KG 54000572 (hereinafter volume 541, volume 542 and volume 572, respectively). Subsequently, the objectors filed general and specifications of objections against the designating petition. The Board reviewed the specifications of objections and prepared a clerk's report which found that the designating petition contained 513 valid signatures, which was 13 more than the 500 valid signatures required for placement on the ballot for this position. The clerk's report was later adopted by the Board's Commissioners. Court-appointed special referees conducted a line-by-line review of the Board's "As Specified" (AS) and "Not as Specified" (NAS) rulings, as well as de novo specifications of objections to the designating petition that were filed with the court by the objectors on the return date, April 22, 2024. The special referees found that the designating petition contained 533 valid signatures.
On April 30, 2024, the parties appeared before this court, at which point the special referees' report was read into the record. The court notes that upon further review of the special referees' rulings on the specifications of objections, a mathematical error was detected in Volume 541, on sheet 15 in that there were only 5 valid signatures, not 6 as previously reported by the special referees, bringing the total number of valid signatures to 532 rather than 533. Following the special referees' report, counsel for the objectors and the respondent-candidate presented their exceptions to the special referees' rulings. Upon a careful review, the court sustained the following exceptions which fell into the categories set forth below:
Objectors' Exceptions to Line-By-Line Review
Printed Signature (PR)
The objectors contested several of the special referees' rulings determining that a signature was not a print. After reviewing copies of the voter registration records of all contested signatories (which was submitted by objectors), the Court overrules five of the special referees' rulings pertaining to signatures appearing at: (1) volume 542, sheet 14, line 8; (2) volume 542, sheet 39, line 6; (3) volume 542, sheet 49, line 7; (4) volume 542, sheet 60, line 4; and (5) volume 542, sheet 60, line 9. As to these signatures, the court finds that they were in fact printed, which is contrary to the cursive signature appearing on each signatory's voter registration record. Therefore, the above-referenced signatures are invalidated.
Signatory Not Registered at Address Stated in Board's Records (NR)
In Volume 572, sheet 4, line 1, signatory' Lee Seltzer affixed the address 129 Smith Street, Brooklyn, next to his signature. This address is located in the 52nd Assembly District, the district involved herein. However, a review of the Board's records indicates that Seltzer is registered, to vote at 298 12th Street in Brooklyn, which is located in the 44thAssembly District. Accordingly, the court overrules the special referees' determination and finds that this signature is invalid (see generally Robleto v Gowda, 183 A.D.3d 673 [2020]).
Out of District (OD)
The special referees ruled that the signature in volume 572, sheet 17, at line 7 was valid. The signature was objected to on the basis that the address listed adjacent to the signature on this line was out of district. The court overrules the special referees' ruling as a review of the Board's records indicated that the address listed on the petition sheet is not located within the 52nd Assembly District and, thus, is out of district and invalid.
Subscribing Witness No Name (SWNN)
In volume 541, at sheet 15, the subscribing witness failed to insert a printed name in the subscribing witness statement section and the subscribing witness' signature appearing at the bottom portion of the witness statement is completely illegible. As the identity of the subscribing witness could not be determined based on their signature alone, the court finds that the five signatures that were found valid on this sheet by the special referees are invalid.
Similar Handwriting (SH)
The objectors alleged that the signatures appearing in volume 542, sheet 64. lines 7 and 8 should be invalidated based on the "similar handwriting" objection. Upon review of the signatures:set forth on the petition sheet, as well as each voter's registration record, the court finds that the signature appearing on line 8 matches the voter's registration record and is therefore valid. However, the court finds that the signature on line 7 does hot match the voter's registration record and. in fact, appears to be written in handwriting similar to that on line 8, thereby invalidating that signature.
Subscribing Witness - Karen McCreary
As to subscribing witness Karen McCreary, counsel for objectors argued that all signatures witnessed by Ms. McCreary should be invalidated on the basis that she has committed fraud throughput her witnessed petition pages as they contain signatures with "strikingly similar handwriting." Initially, the court finds that the objectors have failed to allege fraud with the requisite specificity (see Matter of Baldeo v Board of Elections in the City of New York, 205 A.D.3d 844, 845-846 [2d Dept 2023]; Matter of Malone v Rockland County Bd. of Elections, 110 A.D.3d 723, 723 [2d Dept 2013]; Matter of Robinson v Edwards, 54 A.D.3d 682, 683 [2d Dept 2008]). Here, objectors' bill of particulars Was not sufficiently detailed to apprise the respondent-candidate of the allegations being made against the sheets witnessed by McCreary. In this regard, the bill of particulars only addresses volume 542, sheet 10. As to that sheet, the objectors submitted an affidavit from Candida Mejia, whose name is listed as the signatory on volume 542. sheet 10, line 4. Ms, Mejia states that she reviewed the petition sheet at issue and avers that she never signed a designating petition to support respondent-candidate Gates as a candidate for this position and that her signature had been forged (NYSCEF Doc No. 12). In addition, upon review of the ten signatures on sheet 10, the court finds that all of the signatures appear to be in the same "strikingly .similar handwriting,'' as contended by the objectors. As a result, the four signatures that were not ruled invalid on other grounds are hereby found to be invalid.
However, as to the other sheets witnessed by this subscribing witness, the objectors failed to specifically plead in their bill of particulars which other pages McCreary witnessed and merely seek to invalidate every signature she witnessed based on the invalidation of sheet 10 due to the forged/similaf handwriting allegation (see Matter of Baldeo, 205 A.D.3d at 845-846 [holding that the objectors failed to allege fraud with the requisite specificity where they failed to specifically identify, among other things, the page numbers and line numbers of the purportedly fraudulent signatures and failed to indicate the total number of signatures objected to ]; Matter of Malone, 110 A.D.3d at 723; Matter of Robinson, Edwards, 54 A.D.3d at 683). Moreover, the objectors failed to proffer any evidence (i.e.. copies of signatories' voter registration records) of forgery and/or similar handwriting as to any other signatures witnessed by McCreary.
The Kings County Special Election Part Rules provide that "In matters alleging questions of fraud, a complete written offer of proof including a statement as to the number of witnesses expected to be called, the identification of each such witness (by name, address, volume, page and line) and the status of each such witness (i.e., candidate, Signatory, subscribing witness, notary public, etc....), shall be filed with the Court no later than the time the calendar call on the first return date. Failure to serve and file such offer of proof shall be deemed a waiver and further proof shall be precluded."
Respondent-Candidate's Exceptions to Line-By-Line Review
The special referees ruled that all of the signatures on sheets 36 and 37 in Volume 542 were invalid. On sheet 36, the signatures are all dated between March 15lh and March 17th (2024). However, in the subscribing witness statement, the subscribing witness set forth multiple dates ("March 14, 152024"), rather than one date, next to his signature. Additionally, on sheet 37, all of the signatures are dated between March 17th and March 20th (2024). However, the subscribing witness again set forth multiple dates ("March 14, 15, 2024") next to his signature. The court finds that the special referees properly invalidated all signatures on these sheets (see MacKay v Cochran, 264 A.D.2d 699, 699-700 [2d Dept 1999] [noting that "Election Law § 6-132 (2) requires that each sheet of a designating petition must contain a statement of a subscribing witness which shall be dated and signed by that witness. The date is a matter of prescribed content and therefore strict compliance is required"]; see also Matter Avella v Johnson, 142 A.D.3d 1111, 1113 [2d Dept 2016] [failure of subscribing witness to include the date next to his or her signature on certain designating petition sheets rendered the signatures on those sheets invalid]). Here, the subscribing witness on these two sheets placed multiple dates in the witness statement which in and of itself is impermissible. Indeed, it is unclear as to when the subscribing witness actually witnessed signatures or when said subscribing witness signed the witness statement. Moreover, in several instances, the dates listed in the witness statements are prior to the dates appearing next to signatories (see generally Matter of Stevens v Collins, 120 A.D.3d 696 [2d Dept 2014] [signatures dated after the date of the notary's jurat purporting to authenticate signatures were invalidated]).
Based upon all of the foregoing, a total of 17 additional signatures are invalidated, rendering the total number of valid signatures in respondent-candidate Sabrina Gates' designating petition for the party position of Member of the Democratic State Committee from the 52nd AD to 515 (532 - 17 = 515).
Accordingly, it is
ORDERED that the petition to invalidate is denied.
This constitutes the decision, order and judgment of the court.