Opinion
707858/2021
04-23-2021
Teresa A. O'BRIEN-ISRAEL, Objector, Michael G. Scala, Candidate Aggrieved, Petitioners, v. Kenichi WILSON, Respondent Candidate, and the Board of Elections in the City of New York, Respondents, for an Order Pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, Declaring Invalid the Designating Petition Purporting to Designate the Respondent(s)-Candidate(s) for the Public Office or party position of Member of the New York City Council from the 32nd Council District, Queens County, New York State in the Democratic Primary Election to be held June 22, 2021, and to Restrain the said Board of Elections from Printing and Placing the Names of said Candidate(s) Upon the official Ballots of Such Primary Election.
Petitioner's attorney, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880. Respondent's attorney, Aaron Foldenauer, Esq., 90 Washington Street, No. 25G, New York, NY 10006, (804) 876-2140.
Petitioner's attorney, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880.
Respondent's attorney, Aaron Foldenauer, Esq., 90 Washington Street, No. 25G, New York, NY 10006, (804) 876-2140.
Robert I. Caloras, J.
Upon the numbered papers E1-E4, E7-E8, E9-E28, E29-E33, E34-E37, E38 and E39, petitioners seek an order pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, declaring invalid the designating petition purporting to designate the respondent candidate Kenichi Wilson for the public office or party position of member of the New York City Council from the 32nd Council District, Queens County, in the Democratic Primary Election to be held June 22, 2021, and to restrain the Board of Elections in the City of New York from printing and placing the name of the respondent candidate on the upon the official ballots of such Primary Election. The respondent candidate filed an answer with a counterclaim alleging that the respondent Board of Elections in the City of New York acted erroneously in invalidating certain signatures on his designating petition and seeks an order from this court declaring said signatures to be valid.
Papers Numbered
Order to Show Cause - Petition - Service E1-E4, E7-E8
Answer with Counterclaims — Exhs E9-E28
Reply to Counterclaims - Exhs E29-E33, E38
Memoranda of Law-Exhs E34-E37, E39
Upon the foregoing papers, it is Ordered and Adjudged that the petition is granted, and the proceeding is dismissed, for the following reasons:
This matter came before the Court on April 15, 2021, whereupon oral argument was heard as to whether the designating petitions of the respondent candidate should be declared invalid so as to warrant his preclusion from the ballot. The court determined that a line-by-line review of the said designating petitions was warranted. The hearing was held, on the record, before the Queens County Supreme Court via MICROSOFT TEAMS on April 20, 2021. Attending such hearing were: counsel for aggrieved candidate Michael G. Scala (Scala); counsel for respondent candidate Kenichi Wilson (Wilson); aggrieved candidate Scala; respondent candidate Wilson; and representatives of the office of the respondent Board of Elections in the City of New York (Board).
After the initial ruling by the Board at the hearing of April 14, 2021, Wilson was found to have 275 valid signatures on his designating petition, being above the required amount of 270 signatures. This Court, having subsequently conducted its de novo line-by-line hearing, shall set forth its determination based upon of the nature of the objections filed: A) signatures on another petition (SAP); B) incomplete addresses; C) voter resides at a different address; D) voter found to reside out of the district; E) non-matching/illegible signatures; F) unaffiliated/unregistered voters/not registered Democrats; and G) alterations.
On the return date of this matter, the Court was advised by a representative of the Board of Elections that the number of signatures required for designating petitions for the Office of Member of the New York City Council was reduced to 270 signatures. (See, Executive order 202.2: Covid-19 State of Emergency; Election Law 6-136 [2][c][c-1] ; and see, Council v Zapata , 183 AD3d 678 [2020].)
During the conduct of the hearing, the petitioners did waive or withdraw a total of 10 objections.
A. Signature on Another Petition "SAP":
1. QN 2100912 (Singh sheet 36, line 4 compared to Wilson sheet.) Voter Eileen Cesarski signed a petition for candidate Felicia Singh on March 6, 2021, before signing Wilson's petition on March 11, 2021. The objection claimed by the petitioners is upheld and marked as "As stated."
2. QN 2100912 (Singh sheet 29, line 6; Wilson sheet 28, line 6) Voter Kathleen Fahy signed a petition for candidate Felicia Singh on March 4, 2021, before signing Wilson's petition on March 24, 2021: "As stated."
3. QN 2100913 (Singh Sheet compared to Wilson sheet 38, line 1) Voter Raymond Domenech signed a petition for candidate Felicia Singh on March 15, 2021, before signing Wilson's petition on March 24, 2021: "As stated."
4. QN 2100911, (Singh sheet 23, line 3; Wilson sheet 42, line 3) Voter Ramon A. Gutierrez signed a petition for candidate Felicia Singh on March 6, 2021. While another signature appears on Wilson's petition on March 19, 2021, the court found Wilson's objections as to an incomplete date, and different signatures were valid: "Not as Stated."
5. QN 2100914 (Singh sheet 8, line 1; Wilson Sheet 46, line 8) Voter Pablo Asencio signed a petition for candidate Felicia Singh on March 4, 2021, before signing Wilson's petition on March 24, 2021: "As stated." Wilson's objection as to an unclear signature was overruled.
6. QN 2100915 (Sheet 39, line 3, Wilson sheet 79, line 2) Voter Amy Rodriguez signed a petition for candidate Felicia Singh on March 4, 2021, before signing Wilson's petition on March 20, 2021: "As stated."
7. QN 2100650 (Singh sheet 18, line 7; Wilson sheet 12, line 7) Voter Rohan Narine signed a petition for candidate Bella Matias on March 16, 2021, before signing Wilson's petition on March 24, 2021: "As stated."
In a line-by-line review, an objection to a signature found to be valid is marked "As Stated." Where the objection is deemed to be invalid, it is marked "Not as Stated."
B. Incomplete Addresses
1. Sheet 2, line 6 -. The Court found that the address was sufficient: "Not as Stated"
2. Sheet 33, line 7 — The court found the address to be legible: "Not as Stated"
3. Sheet 47, line 8 — Voter not found at listed address: "As stated"
C. Voter resides at a different address
1. Sheet 5, line 1 - Voter who is not registered at petition address, and who may have moved, but still resides in district, can use their present address even if different from the petition address. (Matter of Robleto v Gowda , 183 AD3d 673 [2020].) The Court ruled: "Not as Stated"
D. Voter resides out of District
1. Sheet 17, line 2 - Voter out of District: "As Stated"
2. Sheet 29, line 1 — Voter in District 28: "As Stated"
3. Sheet 34, line 3 — Voter out of District: "As Stated":
4. Sheet 58, line 2 - Voter in District 28: "As Stated"
5. Sheet 59, line 2 — Voter in District 30: "As Stated"
6. Sheet 59, line 3 — Voter in District 30: "As Stated"
7. Sheet 65, line 2 — Voter in District 28: "As Stated"
8. Sheet 73, line 10 - Voter in District 28: "As Stated"
9. Sheet 74, line 6 — Voter in District 28: "As Stated"
10. Sheet 74, line 7 — Voter in District 28: "As Stated"
E. Non-matching, illegible signatures
1. Sheet 9, lines 3, 4 and 5 — All three signatures deemed valid: "Not as Stated"
2. Sheet 13, line 6 — Signature valid: "Not as Stated"
3. Sheet 13, line 7 — Signature invalid: "As Stated"
4. Sheet 23, line 5 — Signature valid: "Not as Stated"
5. Sheet 23, line 6 — Signature valid: "Not as Stated"
6. Sheet 28, line 3 — Signature valid: "Not as Stated"
7. Sheet 38, line 8 — Signature valid: "Not as Stated"
F. Unaffiliated/Unregistered/Not Registered Democrats
1. Sheet 8, line 1 — Voter a registered Republican: "As Stated"
2. Sheet 11, line 6 — Signature on petition found to match Buff Card: "Not as Stated" (objection overruled)
3. Sheet 13, line 8 — Unaffiliated voter: "As Stated"
4. Sheet 19, line 6 - Unaffiliated voter: "As Stated"
5. Sheet 21, line 1 - Signer not registered: "As Stated"
6. Sheet 23, line 7 — Voter registered as an Independent: "As Stated"
7. Sheet 23, line 8 — Unaffiliated voter: "As Stated"
8. Sheet 26, line 9 — Board records show voter to be a registered Democrat: "Not as Stated"
9. Sheet 27 line 5 - Board records show voter to be a registered Democrat: "Not as Stated"
10. Sheet 38, line — Signer not registered: "As Stated"
11. Sheet 38, line 8 — Board records show voter to be a registered Democrat: "Not as Stated"
12. Sheet 42, line 6 - Unaffiliated voter: "As Stated"
13. Sheet 46, line 4 - Signer not registered: "As Stated"
14. Sheet 47, line 6 — Signer not registered: "As Stated"
15. Sheet 47, line 7 - Board records show voter to be a registered Democrat: "Not as Stated"
16. Sheet 57, line 3 - Board records show voter to be a registered Democrat: "Not as Stated"
17. Sheet 59, line 5 - Unaffiliated voter: "As Stated"
18. Sheet 73, line 3 - Board records show voter to be a registered Democrat: "Not as Stated"
19. Sheet 80, line 9 — Signer not registered: "As Stated"
20. Sheet 83, line 7 - Board records show voter to be a registered Democrat: "Not as Stated"
21. Sheet 84, Line 10 - Board records show voter to be a registered Democrat: "Not as Stated"
G. Alterations
1. Sheet 17, line 1 — Claimed alteration of date deemed insignificant by the Court. Where there is no fraudulent conduct, a petition will not be invalidated where the alteration is "trivial and unimportant." ( Matter of Bramwell v Gargulio , 103 Misc 2d 476, 479 [Sup Ct, Kings Co. 1980].) "Not as Stated"
2. Sheet 27 — Claimed lack of an initial in the subscribing witness statement deemed insufficient: "Not as Stated"
3. Sheet 57, line 2 - "Cross out" deemed to be an invalid alteration: "As Stated"
4. Sheet 7, line 10 — An allegedly premature signature does not invalidate an entire page of the petition. (Matter of Molloy v Scaringe, 153 AD2d 782 [3rd Dept 1989].) "Not as Stated"
At the conclusion of this Court's examination of the signatures on Wilson's designating petitions, a total of 31 objections to signatures were ruled to be "As Stated." As such, respondent candidate Wilson's number of valid signatures was found to be 244, reducing the number of designating petition signatures below the requisite amount of 270 valid signatures, and thus eliminating Wilson's validity as a candidate.
The Court considered the validity of Wilson's submitted answer and counterclaim. In his answer, Wilson interposed a purported counterclaim, with exhibits, seeking to revive 19 signatures ruled upon as invalid by respondent Board of Elections. Petitioners objected to the court's consideration of the said counterclaim, maintaining that the same was in fact an improperly pleaded cross claim. In the counterclaim, Wilson alleged that the Board erroneously ruled that certain signatures were invalid on his designating petition and that said erroneous rulings were "arbitrary and capricious and without foundation of law." Wilson then alleged that those signatures declared to be invalid "may be found valid upon a hearing by this Court." Notably, no specific counterclaims were made against the petitioners.
Pursuant to CPLR 3019 (b), a cross claim may be "any cause of action in favor of one or more defendants against one or more defendants." In contrast, a counterclaim may be "any cause of action in favor of one or more defendants against one or more plaintiffs." ( CPLR 3019 [a].) In an Election matter, "although [a] cross claim [is] denominated as a counterclaim, it [is] properly a cross claim because it [seeks] relief against the Board, which [is] a respondent in the proceeding." (Matter of Espinal v Sosa , 153 AD3d 819, 820 [2nd Dept 2017].)Pursuant to CPLR 402, in a special proceeding, pleadings are limited to a petition, an answer and a reply to any counterclaim asserted, and "the court may permit other pleadings as are authorized in an action upon such terms as it may specify." Where, a cross claim is interposed without leave of court, it is not properly before the court. (Matter of Espinal v Sosa, Id.; Matter of Aguirre v Hernandez , 131 AD3d 716 [2nd Dept 2015].)
The cross claim, as is interposed here, is "in actuality, an improper and untimely attempt to commence a proceeding to validate [a] designation petition." (Matter of Aguirre v Hernandez, Id. at 717; Matter of Dickerson v Daly 196 AD2d 610 [2nd Dept 1993].) In this matter, no anticipatory validating proceeding was brought within the 14-day statutory time period, and no timely validating proceeding was brought after the Board's ruling upholding the objections to the signatures on the designating petition. ( Election Law 16-102 [2] ; see Matter of Dickerson v Daly, supra ; Matter of Bearak v Laufer , 196 AD2d 604 [2nd Dept 1993] ; Kreuger v Richards , 59 NY2d 680 [1983].) The court finds that the purported counterclaim is deemed a cross claim that was not made with leave of court and it shall not be considered in this action. Accordingly, the purported counterclaim is dismissed.
Notwithstanding this Court's ruling that Wilson's counterclaim was dismissed, this Court, for the purpose of rending a more complete record, entertained a line-by-line review of the 19 signatures that Wilson claimed were erroneously invalidated by the Board. The categories of objections were: A) invalid addresses; B) alterations; C) voter not registered; and D) illegible signatures/do not match.
A. Invalid addresses
1. Sheet 2, line 9 — address deemed valid: Board ruling incorrect.
2. Sheet 13, line 4 — address deemed valid: Board ruling incorrect.
3. Sheet 15, line 8 - scrivener's error did not render address invalid: Board ruling incorrect (Over objection).
4. Sheet 20, line - address deemed valid: Board ruling incorrect.
5. Sheet 43, line 7 — address deemed valid: Board ruling incorrect.
6. Sheet 75, line 2 — address deemed valid: Board ruling incorrect.
B. Alterations
1. Sheet 16, line 6 — claimed alteration inconsequential: Board ruling incorrect.
2. Sheet 41, line 1 — alteration deemed minimal: Board ruling incorrect.
3. Sheet 41, line 2 — alteration deemed minimal: Board ruling incorrect.
C. Voter not registered
1. Sheet 25, line 2 — voter found to be registered: Board ruling incorrect.
2. Sheet 25, line 10 — voter found to be a registered Democrat: Board ruling incorrect.
3. Sheet 28, line 4 — voter found to be registered: Board ruling incorrect.
4. Sheet 48, line 8 — voter found to be registered in District 32: Board ruling incorrect. (Over objection)
5. Sheet 83, line 9 — voter found to be a registered Democrat: Board ruling incorrect.
D. Illegible signatures/do not match
1. Sheet 25, line 7 — signatures do not match: Board correct.
2. Sheet 44, line 10 — signature found sufficient: Board ruling incorrect
3. Sheet 50, line 7 — signatures found to match: Board ruling incorrect.
At the close of this portion of the hearing, it was noted that two alleged errors were deemed moot as they had already been counted in Wilson's favor by the Board. Thus, 16 of the claimed Board errors alleged by Wilson were substantiated. However, in crediting Wilson with 16 signatures added to the 244 previously found in his favor, Wilson had only 260 signatures, still rendering him invalid for placement on the ballot for the said Primary Election.
Accordingly, it is hereby
ORDERED AND ADJUDGED the Petition and all ancillary relief requested therein is granted; and it is further
ORDERED AND ADJUDGED that the petition of petitioners TERESA A. OBRIEN-ISRAEL, objector, and MICHAEL G. SCALA, candidate aggrieved, for an order declaring insufficient, defective, invalid, null, void and ineffective, the Democratic designating petitions of respondent candidate KENICHI WILSON for the position of Member of the New York City Council from the 32nd Council District, Queens County, filed with the Respondent NEW YORK CITY BOARD OF ELECTIONS, for the June 22, 2021 Primary Election, is GRANTED; and it is further,
ORDERED AND ADJUDGED, that the Respondent NEW YORK CITY BOARD OF ELECTIONS is hereby enjoined, restrained and prohibited from placing the name of KENICHI WILSON on the ballot as candidate in the June 22, 2021 Primary Election for the position of Member of the New York City Council from the 32nd Council District, Queens County, State of New York.