Opinion
Index No. 904992-22 RJI No. 01-22-141832
07-07-2022
In the Matter of the Application of AISHA MILLS, Petitioner-Aggrieved Candidate, v. NEW YORK STATE BOARD OF ELECTIONS, and The COMMISSIONERS constituting the said Board, Respondents, and AMEE PETERSON, Respondent-Objector, For an order, pursuant to Election Law § § 16-100, 16-102, and 16-116 declaring valid the designating petitions designating Petitioner as a candidate of the Democratic Party for the public office of Representative in Congress, U.S. House of Representatives, 18th District of New York and directing the said Board of Elections to place the name of Petitioner on the official ballot of such primary election.
DAVID JENSEN, PLLC Attorneys for Petitioner-Aggrieved Candidate (David D. Jensen, Esq., of Counsel) 33 Henry Street Beacon, New York 12508 NEW YORK STATE BOARD OF ELECTIONS (Brian L. Quail, Esq., of Counsel) Attorneys for Respondent-Objector (Jared A. Kasschau, Esq., of Counsel)
Unpublished Opinion
Supreme Court, Albany County, All Purpose Term
DAVID JENSEN, PLLC
Attorneys for Petitioner-Aggrieved Candidate
(David D. Jensen, Esq., of Counsel) 33 Henry Street Beacon, New York 12508 NEW YORK STATE BOARD OF ELECTIONS (Brian L. Quail, Esq., of Counsel)
Attorneys for Respondent-Objector (Jared A. Kasschau, Esq., of Counsel)
DECISION AND ORDER
HON. K1NTOERLY A. O'CONNOR ACTING SUPREME COURT JUSTICE
By Order to Show Cause, (O'Connor, J.), dated June 30, 2022, Petitioner-Aggrieved Candidate, Aisha Mills, (hereinafter "Mills") filed a petition seeking an order: (1) declaring Mills' designating petitions valid; (2) directing Respondent New York State Board of Elections (hereinafter "Board") to place Mills' name on the official ballot for the Democratic Primary election for the public office of Representative in Congress, U.S. House of Representatives, 18thDistrict, State of New York in the primary election to be held on August 23, 2022; (3) granting petitioner costs and disbursements in this action; and (4) granting petitioner such other and further relief, including further equitable relief, as may be necessary to effectuate the Court's judgment, or as the Court otherwise deems just, equitable, or necessary'. The Board filed the documents required by the Order to Show Cause, as well as a letter stating that the Board takes no position on this matter on July 1, 2022. On July 5, 2022, Respondent-Objector, Amee Peterson (hereinafter "Peterson") filed an answer which included, inter alia, an affirmative defense alleging that the Court lacks personal jurisdiction.
In the "Prayer for Relief' in the petition, petitioner stated that she is seeking an order "granting Respondent its costs and disbursements in this action (emphasis added)" and "granting Respondent such other and further relief... (emphasis added)," This appears to be a typographical error since the Order to Show Cause seeks such relief for petitioner. The Court will overlook this obvious accidental error and will consider the Order to Show Cause and petition to be seeking such relief for the petitioner.
See Footnote 1.
A hearing was held on the return date, July 5, 2022, at which counsel for all parties appeared. As an initial matter, Peterson's counsel raised the issue of personal jurisdiction based upon the timing of service of the initiatory papers. The Court heard argument regarding the issue of service upon Peterson and granted counsel for all parties the opportunity to submit memoranda of law on that issue only. The Court proceeded with a hearing on the merits of the petition, with the understanding that the issue of personal jurisdiction would still need to be decided. It is the issue of service that is the subject of this Decision and Order. The Court reviewed the arguments of counsel at the hearing, the evidence and exhibits filed by the parties, as well as the Memoranda of Law that were submitted on July 6,2022, in order to make the following determination.
The records before the Court establish that service on the Board was accomplished on June 30, 2022 by serving the papers on Todd Valentine, an authorized agent for service. The records before the Court establish that service on Peterson was accomplished by the following methods: (1) on June 30, 2022, at approximately 6:51 p.m., Elizabeth Velez sent an email to Peterson notifying her that this proceeding had been commenced and attaching the initiatory papers; (2) on June 30, 2022, Ms. Velez authorized petitioner's counsel to send Peterson copies of the initiatory papers via Federal Express; (3) on June 30,2022, at approximately 6:00 p.m., petitioner's counsel delivered the package containing the papers to Federal Express for shipment to Peterson; (4) on June 30, 2022 at approximately 6:40 p.m., petitioner's counsel sent an email to Thomas J. Garry, Esq., the representative of Peterson listed on the specific objections that were filed with the Board regarding Mills' designating petition, advising him that this proceeding had been commenced and attaching the initiatory papers; and (5) on June 30, 2022 at approximately 7:51 p.m., the papers were served on Peterson by serving Peterson's husband, Warren Peterson, personally, as a person of suitable age and discretion. On Friday July 1, 2022, Mr. Garry sent an email to petitioner's counsel confirming receipt of the email he sent on June 30, 2022. In addition, the receipt from Federal Express shows that the package was delivered to Peterson on July 1, 2022 at 11:11 a.m.
The Order to Show Cause authorized service as follows:
"ORDERED, that service of a copy of this order to show cause, together with a copy of the papers upon which it is granted, on Respondent New York State Board of Elections be made by leaving a copy thereof at the General Office of said Board of Elections or by delivering same to any one of the Commissioners of Election or Deputy Commissioners of Elections on before the 1st day of July, 2022, and that service of a copy of this order, together with a copy of the papers upon which it is granted, upon the Respondent-Objector be made either (1) by personal delivery of the same to the Respondent-Objector on or before the 1st day of July, 2022; and/or (2) by personal delivery of the same to a person of suitable age and discretion at the address of the Respondent-Objector set forth in the Verified Petition and by enclosing the same in a securely sealed and duly prepaid envelope addressed to the Respondent-Objector at the address set forth in the Verified Petition and by delivering a copy thereof to a recognized overnight delivery carrier and/or the United States Postal Service no later than 8:00 p.m. on the 1st day of July, 2022, waiving the requirement of a signature, addressed to the Respondent-Objector's address as set forth in the Verified Petition, intended for delivery on or before the 2nd day of July, 2022; and/or (3) by affixing the same to the door of the address of the Respondent-Objector, as set forth in the Verified Petition, and by enclosing the same in a securely sealed and duly prepaid envelope addressed to the Respondent-Objector at the address set forth in the Verified Petitions and by delivering a copy thereof to a recognized overnight delivery carrier and/or the United States Postal Service no later than 8:00 p.m. on the 1st day of July, 2022, waiving the requirement of a signature, addressed to said Respondent-Objector's address as set forth in the Verified Petition, intended for delivery on or before the 2nd day of July, 2022, and that such service shall be deemed good and sufficient service thereof'
In addition, to the above, the Court added a provision that required an email containing the papers be sent to Peterson and/or her representative as noted in the papers submitted by Peterson to the Board no later than July 1, 2022. Service upon Peterson was effected by means of option two above since the papers were served on Peterson's husband, a person of suitable age and discretion, along with delivery of the same to Peterson via Federal Express. In addition, Mills submitted proof that an email, including the papers, was sent to both Peterson and Mr. Garry, her representative.
The parties are in agreement that service was effected in the manner described above; however, Peterson claims that this service was ineffective because all methods of service were not completed on June 30,2022, which was the last day to commence this proceeding, and as a result, the petition should be dismissed. Peterson contends that although the petition was served upon her husband on June 30, 2022, the mailing via Federal Express was not completed until July 1, 2022, one day after the last day to commence a validation proceeding pursuant to Article 16 of the Election Law. She claims that since completion of all methods of service was not accomplished until July 1,2022, the action was not timely commenced. Mills disagrees and contends that since service upon Peterson's husband, the delivery of the package containing the papers to Federal Express, and the emails to Garry and Peterson were all done on June 30, 2022, the action was timely commenced. She further contends that the fact that actual delivery of the package by Federal Express occurred on July 1,2022 is without import.
Election Law § 16-102(2) states, in relevant part, that "[a] proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later." Pursuant to Election Law § 16-116, "a respondent is entitled to notice of the proceeding 'as the court or justice shall direct'" (Matter of Angletti v. Morreale, 25 N.Y.3d 794, 797 [2015] [quoting Election Law § 16-116]). "[T]his requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced" (King v. Cohen, 293 N.Y. 435, 439 [1944]). Service will be held valid where it is reasonably calculated to give notice to the necessary parties within the statutory period (see Contessa v. McCarthy, 40 N.Y.2d 890,891 [1976J; King v. Cohen, supra, at 437-439).
The parties do not dispute, and the Court agrees, that the last day to commence this proceeding was June 30,2022. As such the petition had to be filed by that date and sendee had to be accomplished by that date. However, the issue before the Court essentially boils down to what it means to accomplish service by the three-day deadline. In Matter of Angletti v. Morreale, the Court of Appeals found that service of the initiatory papers via nail and mail was proper when the papers were nailed to the respondent's door on the last day to commence the proceeding and the papers were mailed on that date as well (25 N.Y.3d 794, 797-798). The Court rejected the argument made by Peterson here that since the delivery of the mail could not occur on the last day to commence the proceeding, and would necessarily occur after that, service could not be properly accomplished. The Court stated: "where the instrument of notice has been delivered by another prescribed method within the statutory period, we have rejected such contentions concerning mailing (citations omitted)" (Matter of Angletti, 25 N.Y.3d at 798). The cases cited by Peterson's counsel do not address this determination by the Court of Appeals, nor does counsel in his memorandum of law distinguish this clear determination by the Court of Appeals regarding mailing. It is worth noting that the Court of Appeals stated "[m]oreover, there is no sound reason to adopt a rule that would effectively shorten the very brief period of limitations applicable to election cases - ranging from 3 to 14 days . . . where the proceeding has already been timely commenced by filing, respondent already has notice thereof by the nailing method of service, and imminent delivery of the mailing made within the limitations period can be expected." (id.).
Based upon the principles established in Matter of Angletti, this Court finds that service in this case was proper and in compliance with the requirements of the Order to Show Cause and the Election Law. Because service on Peterson's husband, the delivery of the package for mailing to Federal Express, and the emailing of the papers to Peterson and her representative were all accomplished on June 30, 2022, the last day to commence the proceeding, and the petition was properly filed on that date as well, the Court finds that the proceeding was timely commenced. As such, Peterson's application to dismiss the petition is denied.
At the hearing on July 5, 2022, the Court received evidence submitted on behalf of the parties, as well as the documents produced by the Board, and ruled on the designating petitions and the challenged signatures. It should be noted that petitioner's counsel limited the signatures being challenged significantly at the hearing, so all of the challenged signatures listed in Exhibit D to the petition were not at issue, only certain signatures remained part of the petition. Petitioner's counsel provided the Court and all counsel a marked-up copy of Exhibit D that shows which signatures the petitioner was challenging. That document is attached hereto as Court's Exhibit 1. The Court determined that a total of forty-eight (48) signatures were reinstated. The transcript of the proceedings is being produced and is incorporated fully by reference here. The transcript will be "so ordered" by the Court and will serve as the Court's determination regarding Mills' application for an order declaring her designating petitions valid. Based upon the number of signatures this Court reinstated, Mills has petitions containing more than the required number of signatures. As such, this Court finds that her designating petitions are valid in accordance with the Court's findings on July 5, 2022. The Board, and all subordinate County Boards of Election, are directed to place Mills' name on the official ballot for the Democratic primary election to be held on August 23, 2022 as a candidate for the public office of Representative in Congress in the U.S. House of Representatives, 18th District of New York. The Board, and all subordinate County Boards of Election, are enjoined and restrained from certifying, printing, issuing or distributing for use during the Democratic primary election any and all official ballots used in the 18lhCongressional District of New York upon which Mills' name does not appear as a candidate for said public office.
As a final matter, Mills has requested an order granting her reimbursement for her costs and disbursements in this proceeding. She has not submitted a bill of costs and disbursements for the Court's consideration. The Court will grant Mills' request for an award of costs and disbursements payable by the respondent conditioned on the submission of a bill of costs and disbursements, along with supporting documentation. The bill of costs and disbursements and supporting documentation must be submitted no later than July 20, 2022. Failure to submit the bill of costs and disbursements will result in the automatic denial of the request without further order of the Court.
Accordingly, it is hereby
ORDERED, that Respondent-Objector's application to dismiss the petition in this matter is denied; and it is further
ORDERED, that the designating petitions filed by Petitioner-Aggrieved Candidate are valid consistent with the findings and determinations at the hearing of this matter on July 5, 2022 and in this Decision and Order; and it is further
ORDERED, that Respondent New York State Board of Elections and the subordinate county boards of election are directed to place the name of Petitioner-Aggrieved Candidate on the official ballot for the Democratic primary election to be held on August 23, 2022 as a candidate for the public office of Representative in Congress in the U.S. House of Representatives, IS01District of New York; and it is further
ORDERED, that Respondent New York State Board of Elections and the subordinate county boards of election are enjoined and restrained from certifying, printing, issuing or distributing for use during the August 23, 2022 Democratic primary election any and all official ballots used in the 18lh Congressional District of New York upon which the name of Petitioner-Aggrieved Candidate does not appear as a candidate for the above-referenced public office; and it is further
ORDERED, that the Petitioner's request for an award of costs and disbursements in this proceeding is granted conditionally. Petitioner must submit a bill of costs and disbursements, along with supporting documentation, no later than July 20, 2022. Failure to do so will result in the request being denied without further order of the Court.
This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being uploaded to the NYSCEF system for filing and entry by the Albany County Clerk. The signing of this Decision and Order and uploading to the NYSCEF system shall not constitute filing, entry, service, or notice of entry under CPLR 2220 and § 202.5-b(h)(2) of the Uniform Rules for the New York State Trial Courts. Counsel is not relieved from the applicable provisions of those Rules with respect to filing, entry, service, and notice of entry of the original Decision and Order/Judgment.
SO ORDERED.
Papers Considered:
1. Order to Show Cause, (O'Connor, J.), dated June 30,2022; Petition dated June 30, 2022; with Exhibits A - D annexed;
2. Letter from Aaron Suggs, dated July 1, 2022; with Exhibits A - H filed simultaneously in NYSCEF; 3. Answer, dated July 4,2022;
4. Affidavits and Affirmations of Service (NYSCEF documents 19-21 and 25), with Exhibits 1-3 (NYSCEF documents 22-24) and Exhibit 1 (NYSCEF document 26);
5. Respondent-Objector's Memorandum of Law, dated July 6,2022; 6. Petitioner's Memorandum of Law, dated July 6,2022; and 7. Hearing exhibits.