Opinion
Index No. EF2024-277528
08-15-2024
In the Matter of the Application of BONNIE HAHN, Petitioner-Objector, For a Judgment Pursuant to Article 16 of the Election Law v. MARY E. SWEENEY and HENRY F. ZWACK, constituting the Rensselaer County Board of Elections, Board-Respondents, and TODD RUTECKI, NANCY HARDT, and JOHN DeFRANCESCO, constituting a Committee to Fill Vacancies on a certain purported Certificate of Nomination for IAN H. SILVERMAN Respondents, and IAN H. SILVERMAN and LINDA BLOM JOHNSON, Respondents-Candidates.
HINMAN. HOWARD &KATTELL LLP Jacob Sher, Esq. Attorney for Petitioner-Objector LAW OFFICE OF JAMES L. QUINN James L. Quinn. Esq. Attorney for Respondents Ian H. Silverman, Todd Rutecki, Mary Hardt, and John Defrancesco LINDA B. JOHNSON, ESQ. Respondent-Candidate Pro Se
Unpublished Opinion
HINMAN. HOWARD &KATTELL LLP Jacob Sher, Esq. Attorney for Petitioner-Objector
LAW OFFICE OF JAMES L. QUINN James L. Quinn. Esq. Attorney for Respondents Ian H. Silverman, Todd Rutecki, Mary Hardt, and John Defrancesco
LINDA B. JOHNSON, ESQ. Respondent-Candidate Pro Se
HON. ADAM W. SILVERMAN, ACTING JUSTICE
The following e-filed documents, listed by NYSCEF document 1-6, 26-28, 33-35 were read on the Petition (Motion # 1) and Respondents Ian H. Silverman, Todd Rutecki, Mary Hardt, and John Defrancesco's Motion to Dismiss (Motion # 2).
This case challenges the nomination of Respondent Ian H. Silverman as the Democratic Party candidate for Rensselaer City Court Judge. The arguments presented by Petitioner-Objector Bonnie Hahn cannot be reviewed by this Court because Petitioner commenced the proceeding after the statute of limitations expired.
I. Facts and Procedural History
On or about May 17, 2024, Kathleen L. Robichaud, the elected Rensselaer City Court Judge, resigned her position, creating a vacancy to be filled at the general election to be held on November 5, 2024. The vacancy occurred after the last day to file petitions, therefore, pursuant to Election Law § 6-116, a party nomination "shall be made, after the day of the primary' election, ... by a majority vote of a quorum of the members of a county committee or committees last elected in the political subdivision in which such vacancy is to be filled, or by a majority of such other committee as the rules of the party may provide." Subsequently, a "certificate of nomination shall be filed" (id.). Election Law § 6-158 (6) (b) requires, as relevant here, that "a certificate of nomination for an office which becomes vacant after the seventh day preceding such primary election shall be filed not later than thirty days after the June primary election." As the Primary Election was held on June 25, 2024. the last day to file a certificate of nomination with the County Board of Elections was July 25, 2024. On July 24, 2024, a purported certificate of nomination was filed with the Rensselaer
Notably, Petitioner asserts as her seventh cause of action that the certificate of nomination is invalid pursuant to Election Law § 6-158 (13). Petitioner quotes the statute as stating "certificates shall be filed as soon as practicable" (id.). Petitioner asserts that as the meeting was held on June 29, 2024 and the filing was not until July 24,2024, "[b]y waiting 25 days before filing the certificate with the Rensselaer County Board of Elections, this statutory provision was violated, because the certificate was not timely filed after the meeting." The statute, in its entirty, states that "[i]f a vacancy occurs too late to comply with the provisions of this section, the certificates of nomination, certificates of acceptance or declination, certificates to fill a vacancy in such nomination and certificates of authorization of a nomination shall be filed as soon as practicable" (id. [empthasis added]). As the vacancy did not occur too late to comply with Election Law § 6-158 (6) (b), this argument is meritless.
County Board of Elections stating Respondent Ian H. Silverman was nominated as the Democratic Party candidate for Rensselaer City Court Judge and, pursuant to Election Law § 6-156, Respondents Todd Rutecki, Nancy Hardt, and John Defrancesco were appointed as a committee to fill vacancies.
Respondents Mary E. Sweeney and Henry F. Zwack, being the Democratic and Republican Election Commissioners, respectively, and constituting the Rensselaer County Board of Elections.
On July 26. 2024. Petitioner-Objector Hahn filed a general objection to the Certificate of Nomination (see generally Election Lawr § 6-154 [2]). On August 1,2024. Petitioner-Objector Hahn filed Specific Objections with Respondent Rensselaer County Board of Elections (see generally Election Law § 6-154 [3]). Per the separate "Determination and Decision" of Respondent Zwack, the Rensselaer County Board of Elections served Petitioner-Objector and Respondent Silverman with the Notice of a Meeting and provided its preliminary research on the Specific Objections (see generally Election Law § 6-154 [4] [a]).
Per the separate "Determination and Decision" of Respondent Zwack, Respondent Ian H. Silverman was timely served pursuant to "Election Law § 1-106." Legislative amendments to Election Law § 6-154 (3) (b) now require objectors to serve specifications of objection on candidates as a mandatory requirement for any objections to be considered. Such service must be effectuated on the candidate by "overnight mail," not certified or registered mail (Election Law § 6-154; 9 NYCRR 6204 Emergency Regulation, effective March 31, 2023). Failure to complete service of the objections upon the candidate" deprive[s] the board of jurisdiction to properly consider the objections and thereafter to rule to invalidate the petition" (Matter of Young v Thalmann, 286 A.D.2d 550. 551 [3d Dept 2001]). While alluded to in the Petition, this issue is not further raised.
The Petition makes repeated references to the "Rensselaer County Board of Elections" while citing to the the separate "Determination and Decision" of Respondent Zwack [Petition ¶ 22, 23, 24, 25, 26, 27, 28, 29, 30], Further obfuscating the Petition, the Exhibits cited do not match the citations. Petition ¶ 15 cites to Exhibit 2 as "the Rules of the Rensselaer County Democratic Committee," however, the rules were not filed with the Petition. Likewise, Petition ¶ 22, 23, 24, 25, 26, 27, 28, 29, 30 all represent to be citations to the determinations of Rensselaer County Board of Elections' determination attached as Exhibit 4, but all of the citations actually refer to the separate "Determination and Decision" of Respondent Zwack attached as Exhibit 5.
On August 5, 2024, following an opportunity to be heard and at a meeting of the Rensselaer County Board of Elections, the two commissioners split, with Respondent Zwack voting to invalidate the certification and Respondent Sweeney voting that the Certificate was valid.
Respondent Zwack also filed a separate "Determination and Decision."
Petitioner-Objector Hahn electronically filed her Verified Petition on August 6, 2024 at 5:36 pm through the New York State Electronic Filing system. After 4:00 pm and prior to obtaining an index number, Petitioner brought a hard copy proposed Order to Show Cause to the Office of the Chief Clerk of Rensselaer County Supreme and County Court, which was assigned to this Court as Part I. This Court signed the Order to Show Cause directing Respondents to show why an Order should not be made and entered invalidating the Certificate of Nomination of the Democratic Party of the City of Rensselaer nominating lan H. Silverman as the Democratic Party candidate.
On August 12, 2024, Respondents Todd Rutecki, Nancy Hardt, John DeFrancesco, and Ian H. Silverman filed a pre-answer Motion to Dismiss, pursuant to CPLR 404 , CPLR 3211, and Election Law § 16-102 (b), asserting this Court lacks jurisdiction because Petitioner commenced the proceeding after the statute of limitations expired. Election Law § 16-102 (2) requires that "[a] proceeding with respect to a . . . meeting of a party committee . . . shall be instituted within ten days after ... the filing of the certificate of nominations made at . . . [that] meeting of a party committee." Because of a technical distinction regarding the labelling of the Motion to Dismiss as an "Answer" by the e-filing system, the filing was returned for correction. Respondents Todd Rutecki, Nancy Hardt, John DeFrancesco, and Ian H. Silverman ultimately filed a new Notice of Motion on August 13, 2024, though the affirmation and exhibits originally submitted (though one, apparently erroneously, only constituted a cover page) remained available for all parties and the Court. Petitioner-Objector filed a Notice of Rejection regarding the Motion as its service on August 13, 2024 was untimely under the Order to Show Cause signed by this Court. At oral argument, Petitioner-Objector again asserted the Motion was untimely as well as improperly filed electronically based upon Respondent Ian Silverman, himself an attorney, uploading the documents. Pursuant to this Court's broad discretion under both CPLR 2001 and CPLR 2004 as well as considering there was no prejudice, the Court accepts the Motion (see Matter of Walker v Buttermann 164 A.D.3d 1081, 1082 [3d Dept 2018] [Holding, in an election law matter, that Supreme Court did not abuse its discretion in effectively adjourning the return date for a proceeding pursuant to CPLR 2004 and extending the time to answer by accepting Buttermann's pro se "Answer/Objections in Point of Law"]; see generally Matter of Conti v Clyne, 120 A.D.3d 884. 886 [3d Dept 2014] [Holding the court may properly waive procedureal irregularities pursuit to CPLR 2001]). Petitioner-Objector was allowed the opportunity to respond to the merits of the Motion during the appearance on August 14, 2024 and raised several arguments including citing case law.
At oral argument, Petitioner-Objector asserted that Respondents failed to comply with CPLR 2214. This argument is erroneous as CPLR 404 not only applies, but was also cited within the Notice of Motion. Further, the Appellate Division, Third Department has affirmed the dismissal of a petition on the same grounds that was made by "oral motion to dismiss the petition for lack of jurisdiction" on the return (Matter of Facteau v Clinton County Bd. Of Elections, 197 A.D.3d 840, 841 [3d Dept 2021]).
II. Law
It is well settled that "[t]o properly institute a proceeding raising a challenge under Election Law § 16-102, a petitioner must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)" (Matter of Minichino v Fox, 219 A.D.3d 1637, 1639 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied, 40 N.Y.3d 905 [2023]; Matter of Stern v Putnam County Bd. of Elections, 219 A.D.3d 1269. 1270 [2d Dept 2023]; Matter of Facteau v Clinton County Bd. of Elections, 197 A.D.3d 840, 842 [3d Dept 2021] ["In order to properly complete service, actual delivery must occur no later than the last day upon which the proceeding may be commenced"]; see generally Election Law § 16-116).
"The courts of this State have repeatedly determined that the filing deadlines in the Election Law are mandatory and absolute, and are not subject to the discretion of the courts or the judicial fashioning of exceptions, regardless of how reasonable they may appear to be" (Matter of Jasikojf v Commissioners of Westchester County Bd. of Elections, 183 A.D.3d 669. 670 [2d Dept 2020], lv dismissed 35 N.Y.3d 975 [2020]; accord Matter of Stern v Putnam County Bd. of Elections, 219 A.D.3d at 1270). Even the COVID-19 Public Health Crisis did not empower the courts to create equitable extension where the legislature has set forth a strict deadline (see Matter of Seawright v Board of Elections in the City of N. K, 35 N.Y.3d 227,234 [2020]). Where a certificate of nomination was a nullity found to be a nullity, the Court of Appeals still set the last day for filing that certificate to be the accrual date (see Matter of Pierce v Breen, 86 N.Y.2d 455, 458 [1995] [Holding that even where the August 11, 1995 filing was a nullity, therefore, a proceeding was timely commenced on September 25, 1995 where the last day to file such a certificate was September 19, 1995]). The Appellate Division, Third Department has reaffirmed, as recently as less than a year ago, that even an allegation of fraud does not stay the statute of limitations and "a proceeding to challenge [the filing of the certificate of nomination made at a meeting of a party committee] must be commenced within 10 days of the filing of the resulting certificate" (Matter of Minichino v Fox, 219 A.D.3d at 1640 [internal quotation marks and citations omitted]; see Matter of Kryzan v New York State Bd. of Elections, 55 A.D.3d 1217, 1219 [3d Dept 2008]).
III. Discussion
Petitioner-objector urges the Court to deem the filing timely based upon equity and two cases. First, Petitioner-Objector cites to Matter of Pell v Coveney, (37 N.Y.2d 494, 495 [1975]), which held that where a candidate does not learn that the board of elections had found the candidate's designating petition to be invalid until after the statutory period has expired, the proceeding should not be dismissed. Matter of Pell is easily distinguishable as Petitioner-Objector could have commenced a proceeding based on the filing of the statutorily presumptively valid (Election Law § 6-154 [1]) Certificate of Nomination (see generally Matter of Wilson v Garfinkle, 5 A.D.3d 409. 410 [2d Dept 2004] [Finding Pell distinguishable where petitioner was not denied the ability to file a petition]).
Petitioner-Objector next cites Matter of Stampf v Hill, (218 A.D.2d 919,920 [3d Dept 1995]) where the issue was whether a proceeding to invalidate a petition wfas subject to 14-day Statute of Limitations running from last day to file designating petitions or whether it is proceeding with respect to filing of certificate of nomination made at meeting of party committee, which must be instituted within 10 days of said meeting. In that case, "a designating petition and certificate of authorization" were filed (id.). A certificate of authorization authorizes the designation or nomination of a nonparty member as candidate for office (Election Law § 6-120). "[T]he Election Law does not equate a certificate of nomination with a certificate of authorization and does not use the terms interchangeably" (Matter of Stumpf v Hill, 218 A.D.2d at 920). Because "a certificate of authorization is an integral part of a valid designating petition" the Appellate Division. Third Department found that the 14-day Statute of Limitations relevant to petitions applied (id.). Considering the Court's explicit holding that a certificate of nomination is different. Petitioner-Objector's attempt to graft a 14-day Statute of Limitations onto this case, which does not involve a nominating petition, based upon the holding of Stampf is without merit.
Petitioner-Objector also alludes to a three-day Statute of Limitations. A three-day Statute of Limitations applies where a board makes a determination of invalidity with respect to a certificate to fill a vacancy (see Election Law § 16-102 [2]). Pursuant to Election Law § 6-154 (1), "[a]ny . . . certificate filed with the . . . board charged with the duty of receiving it shall be presumptively valid." ''Because '[a]ll actions of the board shall require a majority vote of the commissioners prescribed by law for such board' (Election Law § 3-212 [2]), the Board of Elections 'cannot act' when there is 'a split vote among the two Commissioners', as occurred here"(Matter of Lavell v Baker. 153 A.D.3d 1135, 1137 [4th Dept 2017], Iv denied 29 N.Y.3d 1100 [2017], quoting Matter of Elgin v Smith. 10 A.D.3d 483, 484 [4th Dept 2004]). Clearly, the Board of Elections did not act and no determination of invalidity was made, thus, the three-day Statute of Limitations from that determination does not apply.
Petitioner-Objector's assertion that she could not file before the Board's determination is spurious. It is well settled that "[a] proceeding pursuant to Election Law § 16-102 is not a proceeding to challenge a determination by a board of elections, but a proceeding to challenge the [nomination] itself. Objectors should commence a proceeding to invalidate [the nomination] within the applicable statutory period in order to protect their rights even if the Board has not rendered a decision'' {Matter of Cheevers v Gates, 230 A.D.2d 948, 950 [3d Dept 1996]; accord Matter of Sorensen v Hill, 43 A.D.3d 1201, 1202 [3d Dept 2007]). Likewise, Petitioner-Objector's related argument that the Court should extend the time period based upon the slight delay from the Board's meeting is also without merit as "[t]he time requirements for filing papers set forth in the Election Law are mandatory and absolute, and the Judiciary is without authority or discretion to fashion exceptions to such time requirements, regardless of how compelling or reasonable they may appear to be" {Matter of Hawatmeh v New York State Bd. of Elections, 183 A.D.3d 1109 [3d Dept 2020], affd 35 N.Y.3d 227 [2020]).
IV. Conclusion
Compliance with the timelines set forth in the Election Law may be difficult, but they maintain a significant public purpose - the orderly administration of elections. These strict guidelines come with severe results, but the Court of Appeals has repeatedly and recently held that discretition to modify these timelines lies with the Legislature, not the courts. Here, Petitioner-Objector was on general notice by the filing of the Certificate of Nomination and did not commence this proceeding within the ten-days allowable by Statute. Therefore, the arguments presented by Petitioner-Objector Bonnie Hahn cannot be reviewed by this Court because the proceeding was commenced after the Statute of Limitations expired.
ORDERED, that Respondets Todd Rutecki, Nancy Hardt, John DeFrancesco, and Ian H. Silverman's Motion to Dismiss is granted: and it is further
ORDERED, that the Petition is denied and dismissed.
The foregoing shall constitute the Decision and Order of the Court. All arguments, including those not specifically referred to herein, have been considered.
The Court has uploaded the original Decision/Order to the case record in this matter as maintained on the NYSCEF website whereupon it is to be filed and entered by the Office of the County Clerk.
Counsel for the Respondets Todd Rutecki, Nancy Hardt. John DeFrancesco, and Ian H. Silverman is not relieved from the applicable provisions of CPLR 2220 and 202.5b (h) (2) of the Uniform Rules of Supreme and County Courts insofar as it relates to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate dependent upon the filing status of the party.
SO ORDERED AND ADJUDGED.