Opinion
736 CAE 19–00957
05-30-2019
In the Matter of Peter A. REESE, Petitioner–Appellant, v. ERIE COUNTY BOARD OF ELECTIONS, Jeremy Zellner, as Commissioner of Erie County Board of Elections, Ralph Mohr, as Commissioner of Erie County Board of Elections, and Lynn M. Dearmyer–Lee, Respondents–Respondents.
PETER A. REESE, PETITIONER–APPELLANT PRO SE. MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENTS–RESPONDENTS ERIE COUNTY BOARD OF ELECTIONS, JEREMY ZELLNER, AS COMMISSIONER OF ERIE COUNTY BOARD OF ELECTIONS, AND RALPH MOHR, AS COMMISSIONER OF ERIE COUNTY BOARD OF ELECTIONS. JESSICA A. KULPIT, BUFFALO, AND VANDETTE PENBERTHY, LLP, FOR RESPONDENT–RESPONDENT LYNN M. DEARMYER–LEE.
PETER A. REESE, PETITIONER–APPELLANT PRO SE.
MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (JEREMY C. TOTH OF COUNSEL), FOR RESPONDENTS–RESPONDENTS ERIE COUNTY BOARD OF ELECTIONS, JEREMY ZELLNER, AS COMMISSIONER OF ERIE COUNTY BOARD OF ELECTIONS, AND RALPH MOHR, AS COMMISSIONER OF ERIE COUNTY BOARD OF ELECTIONS.
JESSICA A. KULPIT, BUFFALO, AND VANDETTE PENBERTHY, LLP, FOR RESPONDENT–RESPONDENT LYNN M. DEARMYER–LEE.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Election Law article 16 seeking to validate his designating petition for the position of Erie County Executive. The designating petition was invalidated by respondent Erie County Board of Elections (Board), based upon objections filed by Lynn M. Dearmyer–Lee (respondent), on the ground that it lacked a sufficient number of valid signatures. Supreme Court dismissed the petition, and petitioner appeals.
As an initial matter, we decline to consider the request for declaratory relief raised by petitioner in his brief inasmuch as the petition itself "does not seek declaratory relief" ( Matter of Burros v. Village of Dansville, 242 A.D.2d 935, 935, 662 N.Y.S.2d 959 [4th Dept. 1997] ).
We reject petitioner's contention that respondent failed to adequately specify the grounds for her objections to petitioner's designating petition (see Election Law § 6–154[2] ; 9 NYCRR 6204.1 ). In any event, in this proceeding to validate his designating petition, petitioner had the burden of establishing the validity of the designating petition (see Matter of Boniello v. Niagara County Bd. of Elections, 131 A.D.3d 806, 807, 15 N.Y.S.3d 530 [4th Dept. 2015] ), and we conclude that he failed to meet that burden.
Petitioner further contends that the Board violated the Open Meetings Law by precluding him from filming its meeting to review respondent's objections to the designating petition (see Public Officers Law § 103[d][1] ). Even assuming, arguendo, that "the Board's meeting to review objections to petitioner's designating petition, which did not involve deliberation on a matter of public policy, could be deemed subject to the Open Meetings Law" ( Matter of Krauss v. Suffolk County Bd. of Elections, 153 A.D.3d 1211, 1213, 61 N.Y.S.3d 569 [2d Dept. 2017] ; see generally Matter of Perez v. City Univ. of N.Y., 5 N.Y.3d 522, 528, 806 N.Y.S.2d 460, 840 N.E.2d 572 [2005] ), we note that " ‘[n]ot every breach of the "Open Meetings Law" automatically triggers its enforcement sanctions’ " ( Matter of Max v. Ward, 107 A.D.3d 1597, 1600, 967 N.Y.S.2d 557 [4th Dept. 2013], quoting Matter of New York Univ. v. Whalen, 46 N.Y.2d 734, 735, 413 N.Y.S.2d 637, 386 N.E.2d 245 [1978] ; see § 107[1] ). We conclude that petitioner has "failed to show good cause why ... we should exercise our discretion" to impose the requested sanctions against the Board ( Max, 107 A.D.3d at 1600, 967 N.Y.S.2d 557 [internal quotation marks omitted] ).
We have reviewed petitioner's remaining contentions and conclude that none warrants reversal or modification of the order.