Opinion
Index No. 904197-24
05-09-2024
In the Matter of the Application of Thomas P. Lapolla, Jr., Candidate-Aggrieved, Petitioner, v. David A. Rabbitts, Respondent-Objector and NEW YORK STATE BOARD OF ELECTIONS, Respondents For an Order Pursuant to Article 1, 6 and 16 of the Election Law, including Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, and CPLR Section 3001 and Article 78, Declaring Valid the Conservative Party Designating Petitions Nominating Thomas P. Lapolla, Jr., for the Public Office of Member of the New York State Assembly, 99th Assembly District, New York, in the Primary Election to Be held June 25, 2024, and to Order the said New York State Board of Elections to Print and Place the Name Thomas P. Lapolla, Jr. upon the Official Ballots of Such Primary Election.
Fusco Law Office (Adam M. Fusco, Esq.), Albany, for Petitioner. Law Office of Edmond J. Pryor (Edmond J. Pryor, Esq.) and Stanley K. Schlein, Esq., Bronx, for Respondent David. A. Rabbitts. New York State Board of Elections (Arron K. Suggs, of counsel), Albany, for Respondents New York State Board of Elections.
Unpublished Opinion
Fusco Law Office (Adam M. Fusco, Esq.), Albany, for Petitioner.
Law Office of Edmond J. Pryor (Edmond J. Pryor, Esq.) and Stanley K. Schlein, Esq., Bronx, for Respondent David. A. Rabbitts.
New York State Board of Elections (Arron K. Suggs, of counsel), Albany, for Respondents New York State Board of Elections.
Thomas Marcelle, Supreme Court Justice.
This case, distilled to its essence, is whether a residential address, to be complete, requires a ZIP code. If it does, the candidate will be removed from the ballot.
Petitioner Thomas P. Lapolla, Jr., is a candidate for Assembly from the 99th Assembly District ("candidate"). He wants to run on the Conservative Party line. To do so, he must submit a designating petition with at least 95 valid signatures from members of the Conservative Party who reside within the confines of the 99th District. To that end, he submitted 103 signatures to the New York State Board of Elections ("Board"). However, on May 1, 2024, the Board ruled that just 83 signatures were valid; 12 fewer than required by law. Thus, the candidate was denied access to the Conservative line.
On Friday May 3, the candidate commenced this special proceeding by Order to Show Cause. The matter was heard on May 8.
Now, the candidate needs to have 12 additional valid signatures to qualify for the ballot. Neatly enough, there exists a lot of 12 signatures that the Board invalidated based upon an incomplete or insufficient witness statement. In particular, Ashley Powell completed a witness statement that affirms that she is a duly qualified voter of the State who is also qualified to sign the petition, followed by her residence address of 4 Haskin Court, Montgomery, New York. The Board found that Powell's witness statement failed to satisfy Election Law § 6-132 (2).
Election Law § 6-132 (2provides that:
There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state, who is an enrolled voter of the same political party as the voters qualified to sign the petition and who has not previously signed a petition for another candidate for the same office. Such a statement shall be accepted for all purposes as the equivalent of an affidavit, and if it contains a materially false statement, shall subject the person signing it to the same penalties as if he or she had been duly sworn.
On its surface, Powell's witness statement complies with the tri-partite demands imposed by Election Law § 6-132 (2): (1) she is a duly qualified voter; (2) she is an enrolled member of the Conservative Party which is the same political party as the voters qualified to sign the petition; and (3) she acknowledged that she understood that her statement will be accepted for all purposes as the equivalent of an affidavit and, if it contains a material false statement, she would be subject to legal penalties.
However, Election Law 6-132 (2)'s witness statement form has two parts: (1) the qualification part where the witness provides where she resides together with her legal qualifications to be a witness and certified by her signature; and (2) the witness identification part (the portion below the signature of the witness) where a person provides the witness's town or city and county. The qualification part is signed by the witness, but identification part need not be signed.
In this case, Powell accurately filled out and completed the qualification part but neglected to complete the identification part. Not a big deal. It is longstanding law that the omission of any of the witness identification information, is not fatal if the witness's complete residential address appears elsewhere on the same page absent any suggestion of fraud (Collins v New York State Bd. of Elections, 120 A.D.3d 882, 883-84 [3d Dept 2014]; McCrory v Westchester County Bd. of Elections, 216 A.D.3d 857, 859 [2d Dept 2023]; Matter of Powers v. Kozlowski, 54 A.D.3d 540, 541-542 [4th Dept 2008]; VanSavage v Jones, 120 A.D.3d 887, 889 [3d Dept 2014]; Matter of Arcuri v Hojnacki, 32 A.D.3d 658, 660 [3d Dept 2006]; Matter of Curley v Zacek, 22 A.D.3d 954, 955 [3d Dept 2005]).
At the hearing Respondent conceded that no hint of fraud is involved in this matter.
In her to save the signatures that Powell witnessed, here complete address must appear on the petition at issue. The facts on this point are straight forward and undisputed. Powell was disqualified as a witness because in the blank slot that instructs the witness to say "I now reside at (residence address)" (Election Law § 6-132 [2]), Powell wrote "4 Haskin Court, Montgomery, New York"-which is her correct "residence address". The problem, according to respondents, is that Powell failed to indicate the United States Postal Service's Zone Improvement Plan code (ZIP code) associated with her street address. Thus, according to the Board, Powell's "residence address" was incomplete. As a result, the Board invalidated the twelve signatures that she witnessed, and thereby denying the candidate access to the ballot.
This case then boils down to this: does the lack of a ZIP code make a residence address incomplete. While there is no case directly on point under these precise circumstances, the Second Department's case law on what constitutes a proper "residence address" under Election Law § 6-132 (2) is quite instructive.
The Second Department has held that "signatures on a designating petition when the subscribing witness fails to include... a postal zip code as part of his or her residence [are valid, where], the subscribing witness provided a correctly-stated street name and house number for the address of [her] residence in compliance with Election Law § 6-132(2)" (Matter of Tully v Ketover, 10 A.D.3d 436, 437 [2d Dept 2004]; see also Gross v Rockland County Bd. of Elections, 40 Misc.3d 1222[A] [Sup Ct, Rockland County 2013] [holding and clarifying that the residence address is the correctly-stated street name and house number and need not include a ZIP code under the authority of Matter of Tully, supra ]). The court finds Matter of Tully compelling, if not controlling.
Moreover, the lack of a zip code does not interfere with the Board's mission to "rapid[ly] and efficient[ly] verif[y]... [a witness's qualification] within the restrictive time periods imposed by the Election Law to facilitate the discovery of fraud" (Matter of VanSavage, 120 A.D.3d at 889). ZIP codes facilitate the rapid and efficient delivery of mail by the Postal Service. Mail communication with the witness is not remotely involved here; indeed, nothing in the entirety of the Election Law requires the Board to contact a subscribing witness by mail.
Consequently, a lack of zip code cannot possibly confuse, hinder or delay any attempt to ascertain or to determine the identity, status and address of the witness-that information rests in the Board's computerized data bank that is easily accessed without resort to a postal code. Therefore, since "concerns [about rapid and efficient identity of the witness] are not implicated [here,] any error in providing [a ZIP code]... [is] an inconsequential violation and not a fatal defect" (Ellman v Grace, 75 Misc.3d 776, 789 [Sup Ct, Albany County 2022] [internal citations and quotations omitted]). A lack of a ZIP code is without a doubt an inconsequential defect.
Finally, the legislature has attempted to move New York from a highly technical election law regime to one where technical barriers no longer deprive the people of voting for a candidate who gained access to the ballot untainted by fraud or wrongdoing (see generally, Election Reform Act of 1992 and the Ballot Access Law of 1996). A ZIP code requirement that bears no purpose to fraud detection is a ticky-tacky foul if a foul at all.
Based on the foregoing, the court holds that the 12 signatures that Powell witnessed are valid. This brings the total valid signatures to 95 which are exactly enough to validate the designating petition. Therefore, it is
ORDERED and ADJUDGED that the Conservative Party Designating Petitions filed with the New York State Board of Elections designating and/or nominating Thomas P. Lapolla, Jr. as a Conservative Party candidate for the public office of member of New York State Assembly in the 99th Assembly District, State of New York in the Primary Election, to be held on June 25, 2024, are hereby declared valid; and it is further
ORDERED, that the Respondent New York State Board of Elections shall print and place the name of Thomas P. Lapolla, Jr. on the official ballots to be used at the June 25, 2024 Primary Election for the public office of member of New York State Assembly in the 99th Assembly District, State of New York on the Conservative Party line.
The foregoing constitutes the Decision, Order and Judgment of the Court.