Opinion
18354/2005.
Decided September 28, 2005.
In this proceeding, petitioner Rosario seeks to validate his nominating petitions for the City Council from the 14th Council District in the Democratic Party Primary to be held on September 13, 2005. A corresponding proceeding to invalidate Mr. Rosario's petitions was also filed by petitioners/objectors Figueroa and Mosley. These proceedings are consolidated for disposition and are decided as set forth below.
I. Background
At the calendar call on August 1, 2005, the proceeding to invalidate was referred to the Special Referee to hear and report with recommendations. The hearing commenced at the Bronx Board of Elections on August 3, 2005. At that time, it was determined that the Clerk's Report of the Board of Elections indicated that there were 801 valid signatures on the Rosario designating petitions. A total of 900 valid signatures was required for placement on the ballot in the Democratic Party primary election for the City Council. Mr. Rosario was thus, at that point, ineligible to be a candidate in the primary.
The hearing on the proceeding to invalidate was then held in abeyance, pending the possible commencement of a validating proceeding by Mr. Rosario. On August 2, 2005, Mr. Rosario received notice from the Board of Elections that his designating petitions had been found invalid. Pursuant to § 16-102(2) of the Election Law, Mr. Rosario then had a period of three business days in which to commence a validating proceeding.
Counsel for Mr. Rosario brought the proposed order to show cause to validate the Rosario designating petitions to be signed by the Court on August 5, 2005, which was the last day on which that proceeding could be commenced. In accordance with this Court's regular practice, the service provision of orders to show cause submitted on the last day to institute a proceeding requires that personal delivery be made on the respondents; substituted service is not made available as a service option. This practice and procedure has been established to insure that all parties to this proceeding have a full and fair opportunity to be heard after receiving due and adequate notice of the application before the Court. The Court, in enacting this policy, was mindful of certain appellate rulings which held that service on the last day to commence an election law proceeding by substituted service, by affixing a copy of the papers to the door of the candidate's residence and by mailing a copy of the papers to the candidate, was inadequate and ineffectual to institute such a proceeding, and was not reasonably calculated to give timely notice to the candidate ( Kaplan v. Bucha, 207 AD2d 509 [2d Dept. 1994], lv denied 84 NY2d 821; Buhlmann v. LeFever, 83 AD2d 895 [2d Dept. 1981], affd 54 NY2d 775).
The return date on the order to show cause was August 8, 2005. On that date counsel for Mr. Rosario, the petitioner to validate, submitted a packet of affidavits of service in this matter, under his legal back bearing his signature under the words "Certification Pursuant to Rule 130-1.1-a." After reviewing these affidavits, counsel for respondents Figueroa, Mosley, and Baez, stated that he had reason to question the validity of the affidavits of service pertaining to these three individuals. He asserted that he knew that two of these persons had not been in New York City on August 5, 2005. Counsel added that the affidavits of service were deficient on their face for failure to list the description of the persons served, the place of service, or the time of service.
The affidavits of service pertaining to respondents Figueroa, Mosley, and Baez were each signed by Thomas J. Galvin. In each of the three affidavits, Mr. Galvin states that he is over the age of 18 and not a party to this action, and that on August 5, 2005 he had caused to be served upon each of these three respondents the order to show cause and petition to validate the designating petition of Antonio Rosario, by personal delivery.
Mr. Galvin provided no further information whatsoever as to the services of process in this proceeding. There is no listing of the time or place of service, and no description of the individuals purportedly served.
Counsel for petitioner Rosario expressed his belief that personal service had been made on respondents Figueroa, Mosley, and Baez. He noted that the affidavits of service had been notarized and were entitled to the presumption of regularity.
II. Proceedings Before the Referee; Referee's Report
The proceeding to validate was then referred to the Referee, to be consolidated with the invalidating proceeding. This Court further directed the Referee to conduct a traverse hearing as to the personal service purportedly made upon respondents Figueroa, Mosley, and Baez. The traverse hearing was to commence at 2 PM at the Bronx Board of Elections on that same day, August 8, 2005. In view of the questions raised as to service and the deficient nature of the affidavits of service, this Court ruled that the petitioner to validate had the burden of going forward at the traverse hearing.
The Referee's Report reflects that at the start of the hearing at the Board of Elections, counsel for the petitioner to validate asked for an adjournment as he stated that there had been insufficient time in which to locate the process server, Thomas J. Galvin.
Counsel for the respondents opposed any adjournment and made an offer of proof to have petitioner Rosario and his counsel testify as to the service issue. Counsel for the respondents added that two of his witnesses, respondents Figueroa and Baez, were available in person at the Board of Elections to testify and that his third witness, respondent Mosley, was available to testify by way of telephone from South Carolina. Respondents' counsel refused the Referee's offer to have his witnesses testify at that time, in advance of the production of the process server. The Referee then adjourned the matter until 10 AM on the following day, August 9, 2005.
The Referee further reported that on August 9, 2005, counsel for the petitioner to validate stated on the record that, after locating Mr. Galvin, he had elicited information from him which required counsel to advise his client, Mr. Rosario, that the proceeding should be withdrawn. Counsel then added that, in accordance with the wishes of his client, Mr. Rosario, he was withdrawing the validating proceeding, with prejudice.
The Referee noted in his report that he had then asked counsel for respondents to call one of his witnesses to testify. Respondents Maria Baez and Ivan Figueroa were then called as witnesses. Each offered unrefuted testimony that she/he had not been served with any papers pertaining to the Rosario validating proceeding by Mr. Galvin or by any other individual on Friday, August 5, 2005. Ms. Baez specifically stated that she had left New York City at about 5:00 PM on that Friday, for a weekend vacation in Wildwood, New Jersey. In light of the testimony of respondents Baez and Figueroa, the Referee dispensed with the testimony of respondent Mosley, who had offered again to testify by telephone.
Before the Referee, counsel for the respondents requested an award of sanctions against petitioner Rosario and his counsel, pursuant to Part 130 of the Rules of the Chief Administrator, § 130-1.1 ( 22 NYCRR § 130-1.1). He charged petitioner and his counsel with frivolous conduct for proffering false affidavits of service in this matter and causing respondents Baez and Figueroa to appear at the traverse hearing at the Bronx Board of Elections on August 8th and 9th.
In his report, the Referee stated that the proceeding to validate had been withdrawn with prejudice and that, accordingly, the proceeding to invalidate was rendered academic.
The Referee continued that the main outstanding issue is whether or not the respondents in the validating proceeding are entitled to an award of costs and sanctions against petitioner Rosario and his counsel.
In his report, the Referee recommended that nominal costs be awarded to respondents Baez and Figueroa for their two-day attendance at the Bronx Board of Elections, occasioned by the improper affidavits of service which had been submitted by petitioner Rosario and his counsel.
III. Oral Argument and Testimony on August 12, 2005
The report of the Referee was issued on August 10, 2005, and counsel were directed to appear before the Court on August 12, 2005 for oral argument thereon.
Counsel for respondents produced a witness, Mr. Giancarlo Fret, to testify as to the personal involvement of petitioner's counsel in the efforts to serve respondent Baez.
Mr. Fret was then sworn as a witness and permitted to testify. Mr. Fret testified in substance as follows:
He was employed by City Councilwoman Maria Baez at her Kingsbridge Road offices in the Bronx. In the afternoon of August 5, 2005, at approximately 4:00 PM, a gentleman came up the stairs into the council offices looking for Ms. Baez.
Mr. Fret advised the man that Ms. Baez was not then in the offices. According to Mr. Fret, "he had a packet in his hands and he dropped it on the table and said, 'This is for Councilwoman Maria Baez.'" (Transcript of 8/12/05, p. 10, lines 2-4). The man, who identified himself as Anthony Curry, further told Mr. Fret that "these papers had to be served to Maria just to put an Antonio Rosario on the ballot." (Transcript of 8/12/05, p. 10, lines 12-13).
Mr. Fret stated that he had attempted to refuse delivery and return the papers, but Mr. Curry turned, proceeded down the stairs and entered a parked white car.
Mr. Fret said Mr. Curry had entered the rear left passenger side, that a female sat in the rear right, and that a man he identified as Mr. Dixon, petitioner's counsel, was in the driver's seat. He testified that a conversation with the man in the driver's seat ensued, as set forth in the transcript as follows: (Transcript, p. 12, lines 11-25)
Q. Did you engage in any conversation with Mr. Dixon at that time?
A. Yes, I did.
Q. What did you say to him?
A. I told him that it was not within my jurisdiction to be handling those papers and that I could not accept them, and I gave them to him.
Q. What did he do?
A. He said, okay, if I knew where Maria [Baez] was.
Q. Did he take the papers from you?
A. Yes, he did take the papers back.
Q. What did you respond when he asked you that question?
A. I told him that I wasn't sure, that she was not in the district.
Mr. Fret's testimony continued as follows: (Transcript, p. 13, lines 1-10).
Q. Okay. Did you ask Mr. Dixon for anything at that time?
A. Yes.
Q. What did you ask him for? Continue.
A. He said, well, counsel does advise that she not leave New York, and I said,
she hasn't, she's just not in the Bronx, and he said, well, that's okay, we can serve her anywhere in the country, and I said, I do not know how to help you, but do you have a business card.
Whereupon, Mr. Dixon gave Mr. Fret his business card, which was received in evidence (Respondents' Exhibit 1).
After Mr. Fret's direct examination, counsel for petitioner Rosario was offered an opportunity to cross-examine the witness. However, in light of the nature of some of the allegations, this Court indicated that it would adjourn the hearing in order to allow petitioner's counsel the opportunity to consult with and/or obtain the assistance of counsel before undertaking any cross-examination or deciding whether or not to testify.
Mr. Dixon indicated that he would prefer to consult with his own legal counsel, who was then away on vacation until August 22, 2005, before taking any further action. In light of the request, the Court adjourned the hearing in this matter until September 6, 2005.
IV. Proceedings Before the Court on September 6, 2005
On September 6, 2005, the hearing resumed. Mr. Dixon stated that he was proceeding without counsel and that he was waiving his right to cross-examine Mr. Fret, who was present at the courthouse and ready to be cross-examined. Based on this decision, the Court then excused Mr. Fret.
Petitioner's counsel argued repeatedly that the respondents were attempting to intimidate his client, Mr. Rosario, and to have a chilling effect on and to intimidate any potential political insurgent who tried to challenge any candidate of the Bronx Democratic Party. He also accused counsel for the respondents of defamation. He did not, however, address the statements made in the affidavits of service which he had presented. Nor did he discuss the testimony of Mr. Fret or mention Thomas Galvin, the purported process server.
Counsel suggested that he had performed his professional responsibility in the matter by obtaining the necessary information about the purported service of process on respondents Baez, Figueroa and Mosley. He added that after this inquiry he had advised his client, Mr. Rosario, to withdraw the validating proceeding, which was withdrawn with prejudice. He noted that these events took place over a 23 hour period from August 8th to August 9th, 2005. Also, he argued that there were insufficient "facts" before the Court to warrant the imposition of either sanctions or costs.
The Court has considered this as a mitigating factor and has taken the withdrawal into consideration.
On the other hand, respondents' counsel pointed to the unrefuted testimony of Council Member Baez and Ivan Figueroa, given previously, on August 9th, before the Special Referee, that they were never personally served with any papers pertaining to the order to show cause in this matter on August 5, 2005. He also cited the unchallenged testimony of Mr. Fret.
With respect to the language of § 130.1-1(c)(1)(2)(3) of the Rules of the Chief Administrator, respondents' counsel argued that the evidence adduced establishes that the conduct of petitioner's counsel and of petitioner Rosario himself was frivolous, and that it warranted the imposition of both sanctions and costs. In marshaling the evidence, respondents' counsel cited the fact that it was established that counsel had waited unnecessarily until the last day available to institute his validating proceeding, which made personal service the only method allowable to commence this matter. Also, he contended, and the Court so agrees, that the evidence clearly indicates that it was petitioner's counsel himself who sat in the white car outside Ms. Baez's Kingsbridge Road office while Mr. Curry unsuccessfully attempted to effectuate service of the order to show cause. Mr. Fret, this Court finds, established through his testimony, that petitioner's counsel was aware of this failure to make service. Respondents' counsel also noted that the affidavits of service certified and submitted by petitioner's counsel stated that the only process server used was a "Thomas J. Galvin," with no mention of Mr. Curry. Thomas Galvin was never produced as a witness by the petitioner.
Further, respondents' counsel argued that Mr. Dixon had submitted the affidavits of service in this matter on August 8, 2005, the return date of the order to show cause, and that he knowingly proceeded to a traverse hearing at the Bronx Board of Elections before the Special Referee, where Ms. Baez and Mr. Figueroa were present to testify. While the petition to validate was withdrawn on the following day, August 9, 2005, the Special Referee permitted the taking of testimony from Ms. Baez and Mr. Figueroa as to their failure to have been personally served with process in the matter as alleged in the affidavits of service. This testimony was taken at the request of respondents' counsel on the issue of possible imposition of sanctions for the attestations made in the affidavits of service.
Respondents also argue that counsel's conduct in the matter was frivolous and dilatory in that it caused disruption to his clients and unnecessary court proceedings. V. Pertinent Statutes and Rules Proof of Service
Pursuant to CPLR 306(a), proof of service shall specify the papers served, the person served, and the date, time, address, and manner of service. Under the provisions of CPLR 306(b), when service is made by delivery of papers to an individual, proof of service shall also include a description of the person to whom the papers were delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height, and other identifying features. While defects in an affidavit of service do not defeat an otherwise properly commenced action ( Bell v. Bell, Kalnick, Klee Green, 246 AD2d 442 [1st Dept. 1998]), these defects do need to be adequately explained.
Costs and Sanctions; Frivolous Conduct
Part 130 of the Rules of the Chief Administrator ( 22 NYCRR § 130-1.1 and following) contains the pertinent provisions relating to the issue of costs and sanctions now before the Court. The wording of § 130-1.1 is crucial to the determination of this matter. Accordingly, that section is set forth in full below:
§ 130-1.1 Costs; Sanctions
(a) The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part. This Part shall not apply to town or village courts, to proceedings in a small claims part of any court, or to proceedings in the Family Court commenced under Article 3, 7 or 8 of the Family Court Act.
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation, government agency, prosecutor's office, legal aid society or public defender's office with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon an attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.
Certification of Papers
The certification of papers is also an issue in this matter. Pursuant to § 130-1.1-a(a), every pleading, written motion, or other paper, served on another party or filed or submitted to the Court shall be signed by an attorney, or by a party, if the party is not represented by an attorney, with the name of the attorney or the party clearly printed or typed below the signature. Pursuant to § 130-1.1-a(b), by signing a paper, "an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of the paper or the contentions therein are not frivolous as defined in subsection (c) of section 130-1.1."
VI. Discussion and Determination
The Court has repeatedly rejected requests to impose sanctions in these often heated election proceedings. The Court does not relish increasing animosities between parties and penalizing attorneys. Sanctions and costs are called for only in extreme circumstances. The Court cannot ignore a situation where a showing has been made by legally admissible and persuasive evidence that a party and his counsel have initiated a proceeding based on false affidavits of service.
The Court notes that the affidavits of service submitted by petitioner's counsel failed to conform with the provisions of CPLR 306. In his affidavits of service.
Mr. Galvin has simply indicated that he caused the order to show cause and the petition to validate to be served upon respondents Baez, Mosley, and Figueroa by personal delivery to each respondent, on August 5, 2005. No further details were provided as to the time and place where service was effectuated; no descriptions of any sort were provided for the three individuals purportedly served.
Moreover, the affidavits of service submitted on the proceeding to validate (which included proof of service upon the three respondents as indicated above, as well as proof of the service upon the Board of Elections and upon the contact person for respondent Baez) were stapled together and submitted to the Court as one packet, with a legal back from petitioner's counsel. This legal back contains a certification, made pursuant to § 130-1.1-a, signed by petitioner's counsel.
Patently, as a result of this signing, petitioner's counsel certified to the Court that he was aware of the validity of the alleged personal service of process by Thomas J. Galvin upon respondents Baez, Figueroa, and Mosley. However, the unchallenged testimony before this Court from Mr. Fret establishes that Mr. Dixon was personally outside Ms. Baez's Kingsbridge Road offices when one Anthony Curry unsuccessfully attempted to make service, and that counsel was aware of this failed service. No testimony, or other evidence, is before this Court as to when, where or how Mr. Galvin made his alleged service or upon whom he may have given the requisite process. Nor is there any evidence whatsoever that Mr. Galvin had assured counsel that he had made such service, even if such assurance turned out to be false.
Under the unrefuted testimony, petitioner's counsel had a legal obligation to make reasonable inquiry as to the accuracy and validity of the alleged personal service before signing the certification made pursuant to § 130-1.1-a(a) on the affidavits of service before submitting same to the Court. Moreover, even after submitting these affidavits of service to the Court on August 8, 2005, and having been advised of the challenges made to the alleged service, he nevertheless waited to elicit information which led his client, Mr. Rosario, to withdraw the validating proceeding.
Scrutiny by the Court of these affidavits of service, even after the withdrawal of the underlying order to show cause, is still in the sound discretion of the Court. (See Heritage East-West, LLC v. Chung Choi, 6 Misc 3d 523 [NY City Civ.Ct. 2004].)
Attorneys may not submit matters to the Court without reviewing the supporting papers, but must be held responsible for the accuracy of all papers filed ( Heritage East-West, LLC v. Chung Choi, supra). Conduct which violates any of the three subdivisions of subsection (c) of § 130-1.1 constitutes a basis for the imposition of sanctions ( DeRosa v. Chase Manhattan Mortgage Corporation, 15 AD3d 249 [1st Dept. 2005]. A false certification lone has been found to set forth sufficient grounds for sanctions ( PDG Psychological, P.C. v. State Farm Insurance Company, ___ Misc 3d ___, 2005 NY Misc. LEXIS 1370, [NY Civ. Ct., 2005]).
Sanctions are retributive in nature, in that they are intended to punish past conduct. However, they are also future-oriented, with a goal of deterring frivolous conduct, not only by the parties in the case then before the Court, but also by the Bar and litigants at large in future proceedings ( Levy v. Carol Mgt. Corp., 260 AD2d 27 [1st Dept. 1999]).
Based upon the circumstances of this case, the Court finds that the affidavits of service, as certified by petitioner's counsel, set forth material factual statements that are false. The presentation of such false statements to the Court thus constitutes frivolous conduct, under subsection (c)(3) of § 130-1.1, and is thus a basis for the imposition of costs and sanctions. Petitioner's counsel was present at the scene of one attempt to serve respondent Maria Baez. He was clearly aware that this attempt was unsuccessful and thus had reason to question the circumstances under which respondent Baez was purportedly later served. A mere reading of the affidavits of service signed by Thomas J. Galvin should have given petitioner's counsel further pause for thought and inquiry, as these affidavits were clearly lacking pertinent details required by CPLR 306(a). There was no explanation whatsoever proffered in this matter.
Petitioner's counsel did not address the merits of this case. The issue is not whether the Democratic Party is trying to intimidate a potential political insurgent. Nor is it an issue of a chilling effect on potential insurgents. Petitioner's counsel is simply setting up a straw man with this argument. To insinuate that the obligation to act with integrity and in compliance with the rules only serves to defeat the legitimate rights of challengers is absurd and is an insult to the democratic process and rule of law. For electoral contests are not a street brawl, where anything goes. Rather, the principle is reaffirmed that any candidate, whether incumbent or challenger, whether backed by the Party apparatus or insurgent, must proceed fairly and abide by the rules. To the extent that it is authorized by law, these principles must be upheld.
Accordingly, the Court imposes a sanction in the total of $500.00 against petitioner Rosario and his attorney, Eric T. Dixon, jointly, to be paid to the Lawyers' Fund for Client Protection within 30 days after entry of this decision and judgment. Further, the Court directs that Mr. Rosario and Mr. Dixon pay $100.00 each to Ms. Baez and Mr. Figueroa, both of whom personally appeared to give testimony at the Court-ordered traverse hearing. These costs are also to be paid within the same 30 days after entry of this decision and judgment. Proof of payment shall be filed with the Clerk of the Court upon payment.
The Special Referee's Report is confirmed, except for the imposition of the aforementioned sanctions and costs, where indicated.
The validating proceeding is permitted to be withdrawn, and the invalidating proceeding is denied as moot. Both proceedings are dismissed.
This constitutes the decision and judgment of the Court.