Opinion
13819/07.
Decided August 16, 2007.
RABIN, PANERO and HERRICK, Attorneys for Petitioners, White Plains, New York.
THOMAS J. ABINANTI, ESQ., Attorney for Petitioners, White Plains, New York.
SPADACCINI, McNERNEY DiFABIO, LLP, By: Thomas Spadaccini, Esq., Scarsdale, New York.
PARISI PATTI, LLP, By: Guy T. Parisi, Esq., Attorneys for Respondent Nancy F. Weininger, White Plains, New York.
CHARLENE M. INDELICATO, ESQ., County Attorney, By: Matthew I. Gallagher, Esq., Attorneys for Respondents Carolee Sunderland and Reginald A. Lafayette, White Plains, New York.
This election law proceeding was commenced by candidates Robert C. Paladino ("Paladino") and Patrick A. Vetere ("Vetere") against candidate Nancy F. Weininger ("Weininger") and the Westchester County Board of Elections ("Board of Elections") to invalidate the Independence Party Designating Petition of Weininger for the public office of Councilman/Trustee of the Town/Village of Harrison.
RELEVANT BACKGROUND
The Order to Show Cause was signed and filed on July 31, 2007 and made returnable August 7, 2007. The Order to Show Cause and Verified Petition were served on July 31, 2007 on Weininger and the Board of Elections. The Verified Petition claimed that the manner in which the signatures on Weininger's Independence Party Designating Petition were obtained was defective. The Verified Petition was signed, as was the Request for Judicial Intervention, by Rabin, Panero and Herrick as attorneys for Petitioners.
On August 2, 2007, Weininger served a Verified Answer and Counterclaim. The Answer denied the material allegations of the Verified Petition and asserted two affirmative defenses: lack of jurisdiction and failure to state a cause of action. Weininger's pleading also contained a Counterclaim asserting that "Petitioners' alleged Independence Party Designating Petition" contained insufficient or defective signatures. The Counterclaim did not assert when the petition designating Petitioners as Independence Party candidates was filed with the Board of Elections. However, Petitioners alleged in their Verified Petition that designating petitions had been filed naming them as candidates of the Democratic and Independence Parties for the public office of Harrison Councilman/Trustee. Weininger's pleading, by its silence as to this allegation, admitted it.
Weininger's pleading requested that the Court deny and dismiss the Verified Petition and grant her counterclaim, which sought to invalidate the designating petition purporting to designate Petitioners as candidates of the Independence Party. The Verified Answer and Counterclaim was served, according to the affidavit of service, by delivery to the offices of the Board of Elections and the offices of Rabin, Panero, and Herrick on August 2, 2007, which date was the last day within which judicial proceedings could have been timely commenced. The affidavit of service does not set forth the name of the individuals to whom the papers were delivered (or where the papers were left), nor does it set forth the time of day of such delivery. The Verified Answer and Counterclaim were not accompanied by any notice of cross-petition or notice of cross-motion.
On August 6, 2007, the Board of Elections interposed a Verified Answer to the Verified Petition, which pleading contained no reference to the Counterclaim.
Upon the August 7, 2007 return date of the Order to Show Cause, this proceeding was referred to this Court by Hon. Francis A. Nicolai, Administrative Judge for the Ninth Judicial District. Petitioners appeared before this Court by Thomas Spadaccini, Esq., of Spadaccini, McNerney DiFabio, LLP. Weininger appeared by Guy T. Parisi, Esq. of Parisi Patti, LLP and the Board of Elections was represented by Senior Assistant County Attorney Matthew I. Gallagher. Mr. Spadaccini represented that he was not prepared to go forward with the Petition at that time. The Court adjourned the matter to August 9, 2007.
On August 9, 2007, Mr. Spadaccini appeared, as did Mr. Parisi and Mr. Gallagher. Mr. Spadaccini withdrew this proceeding on behalf of Petitioners. While Mr. Parisi did not oppose the withdrawal of Petitioners' claims, he advised the Court that he had a counterclaim and wanted to pursue it. When the Court inquired as to whether a counterclaim was a proper mode of procedure in an election law matter, Mr. Parisi indicated that he had legal authority supporting the maintenance of a counterclaim. Because of the Court's need to promptly schedule any hearing necessary, the Court sought to ascertain whether there were any factual issues to be determined. Counsel agreed that only two issues were presented for the Court's determination: (a) whether Weininger properly could challenge the validity of the Paladino/Vetere designating petition by way of counterclaim; and (2) whether the failure to insert a date on the acknowledgment of Paladino's signature on the Independence Party's "Certificate of Acceptance" is a fatal defect rendering the Certificate a nullity and, hence, invalidating the candidacy.
Since the issues were limited to the foregoing issues of law, and the one document filed with the Board of Elections, counsel agreed that a hearing was not required. Rather, a briefing schedule was established, and counsel were directed to file their papers by 5:00 p.m. on Monday, August 13, 2007. Late in the day on Monday, after Weininger's papers had been received by the Court, Petitioners sought an adjournment for the purposes of raising a new argument, i.e. that the "Certificate of Acceptance" signed by Paladino and challenged here was, actually, the second such certificate as there was a different Certificate signed by Paladino that had been filed some days prior to the Certificate challenged here.
For the reasons set forth in this Court's prior order, dated August 14, 2007, this Court refused to permit Petitioners to belatedly raise a new issue after Weininger already had served and filed her papers pursuant to the stipulation and briefing schedule. Instead, the Court accepted Petitioners' amended brief for consideration on the issues presented.
THE COURT LACKS JURISDICTION TO ENTERTAIN THE COUNTERCLAIM
The Court finds that it lacks jurisdiction to determine the merits of Weininger's Counterclaim.
The situation presented here is quite analogous to facts presented in Matter of White v. Bilal , 21 AD3d 573 (2d Dept. 2005), lv. to appeal dismissed, 5 NY3d 824 (2005). In White, candidate White brought a proceeding to invalidate the designating petition of candidate Bilal. During the pendency of the proceeding, the New York City Board of Elections invalidated the Bilal designating petition. Bilal obtained an order to show cause to which was appended his answer to the White court petition (as distinguished from his designating petition) and a cross petition, with the answer also containing counterclaims to invalidate the White designating petition and cross-claims to validate Bilal's own designating petition. Bilal did not seek leave to file the cross-claims, did not purchase an index number for the cross-petition and did not file the answer or cross petition. On the return date, White withdrew his challenge to the Bilal designating petition as academic, and Bilal sought to proceed on the merits of his counterclaims and cross-claims. The Supreme Court refused to hear the counterclaims and cross-claims and the Appellate Division (H. Miller, J.P.; Cozier, Crane, Rivera, J.J.) unanimously affirmed.
The Appellate Division ruled that because Bilal did not properly seek leave of court to serve his cross-claims, the cross-claims were not properly before the Supreme Court. The Appellate Division also stated:
Further, Bilal failed to properly and timely commence a separate proceeding to invalidate White's designating petition . . . by purchasing an index number and filing an order to show cause and petition. 21 AD3d at 573 (citations omitted).
While the Appellate Division did not explicitly discuss the viability of the counterclaims, it concluded that the Supreme Court was correct in not proceeding with them. It should be noted that the case for jurisdiction in White may have been stronger than that presented here, as there the candidate-respondent secured an order to show cause (albeit under the original index number), which apparently brought on his attempt to seek affirmative relief. Here, no order to show cause was secured. Thus, while in White, there was some judicial authorization for the course taken, here there was none. The only factor that might favor jurisdiction here is Weininger's filing of a copy of her pleading with this Court (although there is no evidence the document was filed in the Office of the County Clerk).
Weininger purported to counterclaim, not cross-claim. It is clear that to cross-claim in an election law proceeding, prior leave of court is required. CPLR 402; Matter of White v. Bilal, supra; accord, e.g., Matter of Flood v. Schopfer , 20 AD3d 417 (2d Dept. 2005); Matter of Koplen v. Austin , 5 AD3d 515 (2d Dept. 2004); Matter of O'Connor v. D'Apice, 156 AD2d 610 (2d Dept. 1989), appeal dismissed, leave to appeal denied, 75 NY2d 798 (1989); see also Matter of Zenosky v. Graziani, 288 AD2d 843 (2d Dept. 2001). A counterclaim, which is permitted as of right in a special proceeding (CPLR 402), is a claim asserted by a defendant against either a plaintiff or against both a plaintiff and a person not already a party. See CPLR 3019(a); Siegel, New York Practice (West 4th Ed), § 224. In contrast, a cross-claim is a claim by one defendant against another. CPLR 3019(b); Siegel, New York Practice, supra, § 227.
It is beyond cavil that the Board of Elections is a necessary party to an election law proceeding and must properly be joined as a party within the statutory limitations period. Matter of Sparrow v. Riddick, 303 AD2d 429 (2d Dept. 2003). Thus, while Weininger may have been within her rights to assert a counterclaim against Paladino and Vetere, she could not obtain the relief she sought — invalidation of their Independence Party designating petitions — without joinder of the Board of Elections. While the Board of Elections was made a party respondent to the Paladino/Vetere court petition, so too was Weininger. Hence, for Weininger to assert a claim over against the Board of Elections, Weininger needed to cross-claim against the Board, a step that, in this special proceeding, required prior court leave. Alternatively, Weininger needed to join the Board as an additional party to her counterclaim against Paladino and Vetere, a step that likewise, in a special proceeding, required prior leave of court. CPLR 401; Siegel, New York Practice, supra, § 551.
Had Weininger denominated her request for affirmative relief in her answer as a cross-claim against the Board of Elections and a counterclaim against Petitioners, the Court would have been obliged to reject it for failure to seek prior court leave for the cross-claim. This well-established rule cannot be subverted simply by changing the name or title given the application from "cross-claim" to "counterclaim". Viewing Weininger's request for affirmative relief simply as a counterclaim, without joinder of the Board, fails because the Board, as a necessary party, had to be joined, with court permission, as an additional respondent on the counterclaim within the statutory limitations period. See Matter of Curcio v. Kelly, 193 AD2d 738 (2d Dept. 1993).
A number of other factors compel the result reached here. As noted by the Appellate Division in the White case, since the advent of the commencement-by-filing system, the proper procedure for initiating an election law matter is to purchase an index number, make the appropriate filing of the petition, obtain an order to show cause and serve the order to show cause and petition on all necessary parties within the statutory period. Only in this fashion can it be assured that the respondents are given reasonable notice of the nature of the proceeding and of the time and place of the hearing on the matter. In this instance, the service of a bare counterclaim within an answer, without notice of the time and place that Weininger would seek to raise it, does not provide notice of when the counterclaim would be presented or make it clear that the counterclaim would be pursued if the main claim was discontinued. Further, the counterclaim here relates to a different designating petition than the one challenged by Petitioners. Of moment, the Order to Show Cause in support of the main proceeding directed the Board of Elections to produce on the return date the documents relating to the designating petition challenged by Petitioners; there was no order or directive to produce the documents relating to the Petitioners' own designating petitions. As a result, Petitioners may have been prejudiced by not being able to have the Board of Elections file relating to their petition present in court.
This Court has, as previously noted, rejected Petitioners' efforts to raise a new issue, one relating to a document that they apparently belatedly realized was located in the Board's files. While Petitioners and their counsel still chargeable with the responsibility to adequately prepare themselves for court, the Court observes that the presence of the Board file in court might have given Petitioners or their counsel information that would have led them to decline to enter into the stipulation limiting the issues.
Additionally, counterclaims may be asserted by service of the answer, which should be made, as it was in this case, upon the attorneys of record . See CPLR 2103(b). Such service may be made by mail, which may result in a failure to give timely notice of the proceeding. While it is true that, in this instance, service was made by delivery to the offices of the attorneys of record on the last day for timely service, there is no indication as to what time the papers were served, whether they were handed to anyone, whether the office was open, or whether the papers were simply left at the office. Accordingly, it is questionable whether these Petitioners were given notice reasonably calculated to alert them to the pendency of this proceeding prior to the expiration of the statute of limitations.
Weininger relies upon Matter of Ambro v. Coveney, 20 NY2d 850 (1967), where, in response to the candidates' initiation of a proceeding to validate, the citizen-objector served an answer containing a counterclaim and a cross-claim which sought to invalidate the same petition that the candidates were seeking to validate. The objector also served a notice of cross motion seeking invalidation. This occurred before the Board of Elections ruled in favor of validating the petition. After the Board's ruling, the candidates withdrew their petition-to-validate as moot. The Court of Appeals ruled that, under these circumstances, the objector's invalidation proceeding should have been considered on its merits as substantial compliance with the requirements of the then extant Election Law had been demonstrated.
The writings at the Court of Appeals do not explicitly mention the service of the notice of cross motion but that fact is disclosed in the Appellate Division memorandum at 28 AD2d 999 (2d Dept. 1967). It is also alluded to in the Court of Appeals' reference to "service of the cross application". 20 NY2d at 851.
The Ambro case clearly is factually distinguishable. First, in that case, the objector-respondent was seeking to judicially challenge the very same petition that the candidates-petitioners sought to validate. Likewise, in Matter of Suarez v. Sadowski, 48 NY2d 620 (1979) and in Matter of Krueger v. Richards, 93 AD2d 898 (2d Dept. 1983), the other cases cited by Weininger, the respondent-candidates were attempting by affirmative defenses to validate signatures on the same petition that the petitioners were seeking to invalidate. Here, the respondent-candidate seeks to invalidate a petition different from the one that the petitioners-candidates sought to invalidate.
Second, in Ambro, the objector-respondent also served a notice of cross-motion giving explicit notice of the return date to the candidates-petitioners that he intended to bring the matters relating to his request for affirmative relief before the court at a specific time and place. That was not done here.
Additionally, the Ambro case was decided before both the re-codification of the Election Law in 1976 and the advent of the commencement by filing system. Of moment, Ambro has not been cited in an officially published decision since 1992 when it was cited by the Appellate Division, Second Department in Matter of Hall v. Abu, 185 AD2d 957 (2d Dept. 1992), leave denied, 80 NY2d 755 (1992), in support of a holding that it was error for the Supreme Court, which granted the respondent-candidate leave to interpose an answer with affirmative defenses, to have denied leave to interpose a counterclaim. Hall is distinguishable as that case also involved a counterclaim which sought to validate the same petition as was the subject of the main case, not a different petition. Hall has never been cited in an officially published decision and seems to have been at least impliedly questioned by White v. Bilal, supra.
This Court also observes that the decision of the Court of Appeals in Ambro was by a divided Court. The Ambro dissenters, Chief Judge Fuld and Judge Burke, pointed out that a counterclaim or cross motion would not be permitted in the absence of an order of the court, 20 NY2d at 852, which is, of course, the point of the holding in White v. Bilal, supra. Since Ambro is factually distinguishable, and both the Election Law and the CPLR have undergone significant changes since 1967 when Ambro was decided, the Court concludes that it should apply White v. Bilal, a recent decision of the Appellate Division, Second Department, and further, that the application of that case to these facts results in the conclusion that the Court lacks jurisdiction over the counterclaim.
In view of this determination, the Court will not consider the merits of the counterclaim.
CONCLUSION
The Court has considered the following papers in connection with this proceeding:
a)Order to Show Cause issued July 31, 2007 and Verified Petition dated July 30, 2007; Request for Judicial Intervention; and Affidavits of Service submitted in support thereof;
b)Verified Answer and Counterclaim of Respondent Weininger, dated August 2, 2007 and affidavit of service in support thereof;
c)Verified Answer of Respondent Board of Elections, dated August 6, 2007;
d)Memorandum of Law on behalf of Respondent Weininger;
e)Amended Memorandum of Law on behalf of Petitioners;
f)Certificate of Acceptance, Independence Party, filed with the Board of Elections on July 23, 2007 at 4:33 p.m.
Based upon the foregoing, it is hereby
ORDERED that this proceeding is dismissed, without costs.
The foregoing constitutes the Decision and Order of this Court.