Summary
In Hennessy the board of elections had invalidated 585 signatures and petitioner brought a validation petition in which he "sought to challenge '[e]ach and every one of the determinations of the Board' adverse to him" (id. at 1).
Summary of this case from Rowlands v. BakerOpinion
570.1 CAE 23-00900
06-13-2023
In the Matter of Michael HENNESSY, Petitioner-Appellant, v. ONEIDA COUNTY BOARD OF ELECTIONS and Patrick O'Brien, Respondents-Respondents.
THE SARCONE LAW FIRM, PLLC, CROTON-ON-HUDSON (JOHN A. SARCONE, III, OF COUNSEL), FOR PETITIONER-APPELLANT. FUSCO LAW OFFICE, ALBANY (ADAM FUSCO OF COUNSEL), FOR RESPONDENT-RESPONDENT ONEIDA COUNTY BOARD OF ELECTIONS. LAW OFFICE OF JOSEPH T. BURNS, PLLC, WILLIAMSVILLE (JOSEPH T. BURNS OF COUNSEL), FOR RESPONDENT-RESPONDENT PATRICK O'BRIEN.
THE SARCONE LAW FIRM, PLLC, CROTON-ON-HUDSON (JOHN A. SARCONE, III, OF COUNSEL), FOR PETITIONER-APPELLANT.
FUSCO LAW OFFICE, ALBANY (ADAM FUSCO OF COUNSEL), FOR RESPONDENT-RESPONDENT ONEIDA COUNTY BOARD OF ELECTIONS.
LAW OFFICE OF JOSEPH T. BURNS, PLLC, WILLIAMSVILLE (JOSEPH T. BURNS OF COUNSEL), FOR RESPONDENT-RESPONDENT PATRICK O'BRIEN.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking, inter alia, to validate his designating petition pursuant to the Election Law to place him on the primary election ballot for the Republican Party as a candidate for the office of Oneida County Executive. The designating petition was invalidated by respondent Oneida County Board of Elections (Board), which determined in response to objections filed by respondent Patrick O'Brien and after a hearing that the designating petition did not contain the 1,000 valid signatures required to qualify for the designation sought because 585 of the total 1,571 signatures therein were invalid. Petitioner appeals from an order that, inter alia, dismissed the petition on the ground that it lacked the specificity required by CPLR 3013. We affirm.
"A validating petition must specify the individual determinations of a board of elections that the candidate claims were erroneous, including the signatures that the candidate claims were improperly invalidated" ( Matter of Fuchs v. Park , 205 A.D.3d 849, 850, 165 N.Y.S.3d 907 [2d Dept. 2022], lv denied 38 N.Y.3d 906, 2022 WL 1550928 [2022] [internal quotation marks omitted]; see Matter of Lacorte v. Cytryn , 21 N.Y.3d 1022, 1023, 972 N.Y.S.2d 208, 995 N.E.2d 170 [2013] ; Matter of Rodriguez v. Ward , 43 A.D.3d 640, 641, 842 N.Y.S.2d 622 [4th Dept. 2007] ; see generally CPLR 3013 ). Although a petitioner may satisfy that requirement by referencing exhibits attached to the petition, those exhibits must, under the circumstances, provide the respondents with adequate notice to permit them to prepare a defense to the petition (see Matter of Wagner v. Elasser , 194 A.D.3d 891, 893, 149 N.Y.S.3d 153 [2d Dept. 2021], lv denied 36 N.Y.3d 913, 2021 WL 1974221 [2021] ; see generally Matter of Jennings v. Board of Elections of City of N.Y. , 32 A.D.3d 486, 486-487, 819 N.Y.S.2d 487 [2d Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006] ).
Here, the petition to validate and supporting exhibits were not sufficiently particularized (see generally Rodriguez , 43 A.D.3d at 641, 842 N.Y.S.2d 622 ). At certain points in his validation petition, petitioner generally sought to challenge "[e]ach and every one of the determinations of the Board" adverse to him. At other points, he incorporated by reference an exhibit attached to the petition, exhibit C, which addressed only a subset of the 585 signatures ultimately invalidated by the Board. The petition's conclusory challenge to any determination adverse to petitioner failed to satisfy the specific pleading standard (see generally Matter of Ellman v. Grace , 75 Misc.3d 776, 783, 171 N.Y.S.3d 306 [Sup. Ct., Albany County 2022] ). To the extent that the petition also relied on exhibit C to challenge a limited number of signatures referenced therein, we conclude that exhibit C did not, on its face, "specify which determinations" of the Board petitioner claimed were erroneous ( Lacorte , 21 N.Y.3d at 1023, 972 N.Y.S.2d 208, 995 N.E.2d 170 ). Rather than responding to the Board's determination, exhibit C predated that determination and contained responses to the Board's preliminary analysis. Indeed, the exhibit addressed numerous signatures that were not ultimately invalidated by the Board. Further, the exhibit conflicted with the body of the petition itself as to how many of the invalidated signatures were at issue. Under the circumstances, we conclude that the petition with exhibits "was not sufficiently particularized to give ... Supreme Court and the parties notice of which determinations were claimed to be erroneous or which signatures the candidate claimed were improperly invalidated" ( Jennings , 32 A.D.3d at 486-487, 819 N.Y.S.2d 487 ).
We have considered petitioner's remaining contentions and conclude that none warrants reversal or modification of the order.