Opinion
12037/05.
Decided on August 12, 2005.
Ezra B. Glaser, Esq. Bronx, New York, Attorney for Eulogio Santiago.
John J. Ciampoli, Esq. Albany, New York Attorney for Elizabeth Nazzal Sandy Annabi.
Charlene M. Indelicato White Plains, New York, Attorneys for Respondent, Westchester County Board of Elections.
The first above-captioned proceeding seeks an Order validating a Petition designating Eulogio Santiago (hereinafter "Santiago) as a Democratic Party candidate for the office of City Council Member for the 2nd Council District, City of Yonkers in the Primary Election, to be held on September 13, 2005. Elizabeth Nazzal (hereinafter "Nazzal"), as respondent objector, moves to dismiss the proceeding, alleging that: (1) the matter is jurisdictionally defective in that some provisions for service of papers were left blank by the Judge who signed the Order to Show Cause which accompanied the Verified Petition; (2) that the Order to Show Cause and the Verified Petition were mailed on July 25, 2005, but were not received by Nazzal until July 29, 2005, one day after the expiration of the statute of limitations; (3) that the petition fails to set forth a cognizable cause of action; and (4) that the petition is not sufficiently particular. The petitioner Santiago opposes the motion. The motion to dismiss this proceeding is denied.
The second proceeding was commenced by Santiago pursuant to Election Law § 16-102 and seeks to invalidate the Petition designating Sandy Annabi (hereinafter "Annabi") as a Democratic party candidate in the primary election to be held on September 13, 2005, for the public office of City Council Member of the 2nd Council District in the City of Yonkers. The respondent Annabi moves to dismiss the second proceeding alleging inter alia that: (1) the pleading does not contain the requisite specificity for actions sounding in fraud; and (2) that the Order to Show Cause and the Verified Petition were mailed on July 25, 2005, but were not received by Ms. Annabi until July 29, 2005 the day after the expiration of the statute of limitations. The petitioner Santiago opposes the motion. The motion to dismiss is granted and this proceeding is dismissed.
The third proceeding was brought by petitioners Nazzal and Annabi pursuant to Election Law § 16-102 and seeks to invalidate the Petition designating Santiago as a Democratic party candidate in the primary election to be held on September 13, 2005 for the public office of City Council Member of the 2nd Council District in the City of Yonkers. The respondent Santiago moves to dismiss the proceeding on the grounds that the petition contains "blunderbuss charge(s)" of fraud which do not contain the requisite specificity [ O'Toole v. D'Apice, 112 AD2d 1078 (2nd Dept. 1985) appeal denied 65 NY2d 607]. The petitioner Annabi opposes the motion. The motion to dismiss is denied.
The Orders to Show Cause signed in the first and second proceedings provided that service on the respondents Nazzal and Annabi was to be made by mailing a copy of the Orders to Show Cause, petition and supporting papers by regular first-class mail, with certificate of mailing. The affidavits of service of the Orders to Show Cause indicate that they were mailed by first class mail with certificate of mailing on July 25, 2005. The respondents Nazzal and Annabi each submit an affidavit indicating that they received the mailing on Friday, July 29, 2005. The respondent Santiago challenges the Nazzal and Annabi affidavits and seeks a hearing.
Since there were issues of fact regarding the mailing, delivery and receipt of the petitions and whether the mailings were reasonably calculated to effectuate service upon the necessary party respondents, this court ordered and conducted a hearing on August 8th, 9th and 10th. Upon the credible testimony and evidence adduced at the hearing and upon the papers submitted on the motions herein, the court makes the following findings of fact and conclusions of law.
On July 25, 2005, the two Orders to Show Cause and petitions filed under Index Numbers 12037/05 and 12038/05 were received, reviewed and signed by the Supreme Court, Westchester County (Murphy, J.). At approximately 8 p.m. they were brought to the Cadman Plaza Post Office in Kings County by Santiago's attorney and were mailed with instructions for first class delivery to Ms. Nazzal and Ms. Annabi in Yonkers. The use of first class mail complied with the service provision provided by the court in the Orders to Show Cause.
Ms. Nazzal and Ms. Annabi testified that they did not receive the mailings until July 29, 2005 and their testimony was in all respects credible. Ms. Nazzal further testified that she checks her mailbox every day, that she is the only person in her residence who has a key to her mailbox, and that she did not receive the mailing which contained the Order to Show Cause until the evening of July 29th. Ms. Annabi testified that she did not receive the mailing containing the Order to Show Cause and petition until July 29, 2005, although she candidly admitted that she could not remember whether she had checked her mailbox the day before.
The testimony of the two postal experts was also credible although it differed slightly. Mr. Feldstein indicated that, in his opinion, first class mail from Brooklyn would be delivered to an address in Yonkers within one to three days, somewhere around ninety-five percent of the time. Mr. Guiliano indicated that, in his opinion, first class mail from Brooklyn would be delivered to an address in Yonkers within two to three days somewhere between sixty to eighty percent of the time. Although there is no guarantee of delivery of first class mail within any particular period, both experts agreed that they would normally expect a letter sent from Brooklyn to be delivered in Yonkers within three days.
Election Law § 16-102 provides that "a proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition". The last day to file a designating Petition was July 14th and therefore the statute of limitations required this action to be commenced on or before July 28, 2005. Pursuant to Election Law § 16-102, a proceeding must be commenced "upon such notice to such . . . persons . . . as the court or justice shall direct" (Election Law § 16-116). Although this provision has been interpreted to require "actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced" [ Yellico v. Ringer, 185 AD2d 965 (2nd Dept. 1992) quoting Matter of Moore v. Milhim, 109 AD2d 810 (2nd Dept. 1985)], actual receipt is not required in all circumstances [ Leahy v. O'Rourke, 307 AD2d 1008 (2nd Dept. 2003)] and a proceeding is timely commenced if the method and manner of service is reasonably calculated under the circumstances to complete service within the statutory time frame, [ Matter of Contessa v. McCarthy, 40 NY2d 890; Silkowski v. Cacase, 340 AD2d 425 (2nd Dept. 2003) leave to appeal denied 100 NY2d 510; Yellico v. Ringler, supra; and Moore v. Milhim, supra].
In the instant case, the service provision contained in the Order to Show Cause allowed service by regular mail. Although the testimony of the two postal experts varied slightly, both agree that first class mail from Brooklyn would normally be delivered to an address in Yonkers in three days. The court therefore finds that the mailing was reasonably calculated to provide actual delivery to the respondents residing in Yonkers, on or before July 28, 2005. Although actual receipt of the Orders to Show Cause by Ms. Nazzal and Ms. Annabi did not occur until July 29, 2005, the court finds the proceeding was timely in that it was effectuated "at such time and in such manner as would normally be expected to result in receipt by the addressees within the statutory. . . . period", [ Matter of Hervey v. Greene County Board of Elections, 166 AD2d 743 (3rd Dept. 1990) quoting Matter of Contessa v. McCarthy, supra]. Thus, the instant proceeding is timely, [ Silkowski v. Cacase, supra; Yellico v. Ringler, supra; and Moore v. Milhim, supra] and personal jurisdiction was obtained.
Respondents in the first and second proceedings also seek to dismiss the respective petitions upon the ground that the pleadings are not sufficiently particular and fail to state a cause of action. Statements in a pleading are sufficient when they provide the court and the parties with notice of the transactions and occurrences to be proved and the material elements of each cause of action [CPLR § 3013; also see Matter of Mazza v. Bd. of Elections of County of Albany, 196 AD2d 679 (3rd Dept. 1993)] and pleadings must be liberally construed [ D'Angelo v. Schlem, 267 AD2d 418 (2nd Dept. 1999)]. However, where a pleading alleges a cause of action in fraud, greater particularity is required [CPLR Rule 3016 (b)] and in the fast-paced world of Election Law proceedings the failure to provide sufficient detail of the alleged fraud will result in dismissal [See e.g. O'Toole v. D'Apice, 112 AD2d 1078 (2nd Dept. 1985); Naples v. Swiatek, 286 AD2d 567 (4th Dept. 2001); Waugh v. Nowicki, 10 AD3d 437 (2nd Dept. 2004) leave to appeal denied 3 NY3d 603], unless those statements are coupled with the incorporation by reference of proper specifications and objections [See e.g. Oberle v. Caracappa, 133 AD2d 202 (2nd Dept. 1987); Mazza v. Bd. of Elections of County of Albany supra].
The petition filed in the first proceeding does not allege fraud, and therefore the heightened particularity requirement is not applicable. The pleading is otherwise sufficiently particular to provide the court and the parties with notice of the transactions and occurrences to be proved and the material elements of each cause of action [CPLR § 3013].
Respondent Nazzal's remaining contentions in her motion to dismiss the first proceeding are without merit. In accordance with the foregoing, the motion to dismiss the first proceeding is denied.
Turning to Ms. Annabi's motion to dismiss the second proceeding, the court finds that the petitioner Santiago fails to allege his fraud claims with sufficient specificity as is required by CPLR Rule 3016 (b). Moreover, his pleadings do not incorporate by reference the objections that were filed with the Board of Elections, [ Naples v. Swiatek, supra; Matter of Oberle v. Caracappa, supra; Matter of O'Toole v. D.Apice, supra; Matter of Cohen v. Moss, 97 AD2d 644 (3rd Dept. 1983) lv denied 60 NY2d 558]. In accordance with the foregoing, Annabi's motion to dismiss the second proceeding is granted and the petition filed under Index number 12038/05 is dismissed. Having reached this determination, the court does not address respondent's remaining contentions with respect to her motion to dismiss.
With respect to Santiago's motion to dismiss the petition in the third above-captioned action, the court finds that Annabi's petition is sufficient in all respects. Her petition incorporates by reference the detailed specifications and objections that were filed with the Westchester County Board of Elections. As such, the claims summarized in Annabi's pleading, together with the detailed specifications incorporated by reference provided the required specificity, [ Bronson v. Cartonia, 10 AD3d 469 (3rd Dept. 2004); Oberle v. Caracappa, supra]. Therefore, Santiago's motion to dismiss is denied.
Upon the foregoing, the court orders an immediate trial with respect to the merits of the allegations raised in the petitions under Index numbers 12037/05 and 12249/05.
This constitutes the Decision, Order and Judgment of the court.
The following papers were considered:
1) Order to Show Cause filed under Index Number 12037/05 to validate designating petition of Eulogio Santiago with annexed Verified Petition dated and verified on July 22, 2005;
2) Respondent Objector Elizabeth Nazzal's Notice of Motion to Dismiss dated August 2, 2005 with annexed Affidavit of Respondent Elizabeth Nazzal sworn to on August 1, 2005;
3) Respondent Westchester County Board of Elections Verified Answer dated August 2, 2005 with annexed Exhibit "A";
4) Affirmation of Service of Ezra B. Glaser, Esq., upon Elizabeth Nazzar (sic) dated August 1, 2005 with attached Certificate of Mailing and copies of stamped receipts by the Westchester County Board of Elections;
5) Affirmation of Service of Ezra B. Glaser dated August 2, 2005 with annexed Certificate of Mailing upon John Ciampoli, Esq.;
6) Petitioner Santiago's Notice of Cross-Motion and Affirmation in Opposition to respondent's motion to dismiss dated August 5, 2005 with annexed affirmation of Ezra B. Glaser, Esq. dated August 4, 2005 with annexed exhibits "A" through "E";
7) Respondents Nazzal and Annabi's Reply to Santiago's Affirmation in Opposition to their motions to dismiss dated August 4, 2005;
8) Order to Show Cause under Index number 12038/2005 to invalidate designating petition with annexed Verified Petition dated and verified on July 22, 2005;
9) Respondent Annabi's Motion to Dismiss dated August 2, 2005 with annexed Affidavit of Respondent Elizabeth Nazzal sworn to on August 1, 2005;
10) Facsimilie transmission from John Ciampoli, Esq. received August 2, 2005 with annexed affirmation of Annabi dated August 1, 2005 and annexed case law;
11) Respondent Westchester County Board of Elections Verified Answer dated August 2, 2005 with annexed Exhibit "A";
12) Affirmation of Service of Ezra B. Glaser, Esq., upon Sandy Annabi dated August 1, 2005 with attached Certificate of Mailing and copies of stamped receipts from the Westchester County Board of Elections;
13) Affirmation of Service of Ezra B. Glaser dated August 2, 2005 with annexed Certificate of Mailing upon John Ciampoli, Esq.;
14) Order to Show Cause under Index No. 12249/05 dated July 27, 2005 with annexed petition to invalidate Santiago's designating petition dated and verified on July 26, 2005;
15) Affirmation of service of John Ciampoli, Esq. upon Westchester County Board of Elections dated August 1, 2005;
16) Respondent Santiago's Verified Answer to Annabi and Nazzal's petition to invalidate verified on August 1, 2005;
17) Respondent Westchester County Board of Election's Answer dated August 2, 2005 with annexed Exhibit "A"; and
18) the hearing testimony and exhibits admitted into evidence.