Opinion
No. 4376–12.
2012-08-17
In the Matter of Robert SCHULTZ, as Citizen Objector and Ann Rabbitt, as Candidate, Aggrieved v. Chaya FARKAS, Mendel Ekstein, Leib Frankel, Respondents–Committee to Receive Notices and New York State Board of Elections, Respondent, In the Matter of Chaya Farkas, Mendel Ekstein, Leib Frankel, as Members of the Committee to Receive Notices, Petitioners, v. Robert Schultz as Citizen Objector, and the New York State Board of Elections, Respondents.
James Walsh and Bryon McKim, Law Offices of James Walsh, Schenectady, attorneys for Robert Schultz and Ann Rabbitt. Kathleen O'Keefe, Esq., Earlton, Attorney for Members of the Committee to Receive Notices.
James Walsh and Bryon McKim, Law Offices of James Walsh, Schenectady, attorneys for Robert Schultz and Ann Rabbitt. Kathleen O'Keefe, Esq., Earlton, Attorney for Members of the Committee to Receive Notices.
Kimberly Galvin, Special Counsel, Albany, Attorney for New York State Board of Elections.
RICHARD M. PLATKIN, J.
Petitioners in Proceeding No. 1, Robert Schultz and Ann Rabbitt, seek an order: (1) declaring invalid the Opportunity to Ballot petition filed with respect to the Independence Party for the public office of Member of Assembly for the 98th Assembly District in the primary election to be held on September 13, 2012; and (2) restraining the New York State Board of Elections (“SBOE”) from allowing an opportunity to ballot with respect to such election. Chaya Farkas, Mendel Ekstein and Leib Frankel, as members of the Committee to Receive Notices, are named as respondents in Proceeding No. 1 and bring Proceeding No. 2 seeking an order: (1) declaring valid said Opportunity to Ballot petition; and (2) directing the SBOE to hold an Independence Party primary for said office at which voters can write in the name of a candidate.
BACKGROUND
An Opportunity to Ballot (“OTB”) petition was filed with the SBOE to provide Independence Party members with the opportunity to write in the name of a candidate for the public office of Member of Assembly for the 98th Assembly District (“the Office”) in the September 13, 2012 primary election. The subject OTB petition (“the OTB Petition”) names Chaya Farkas, Mendel Ekstein and Leib Frankel as the Committee to Receive Notices.
Proceeding No. 1, which seeks to invalidate the OTB Petition, was commenced by Ann Rabbitt, who successfully has petitioned to be designated the Independence Party candidate for the Office, and Robert Schultz, a registered voter in the 98th Assembly District who has filed general and specific objections to the OTB Petition.
Proceeding No. 1 was made returnable before the undersigned on August 7, 2012, along with two other Election Law proceedings seeking invalidation of OTB petitions that were identified as related cases. Also returnable on such date was a motion filed by the respondents in Proceeding No. 1
to, among other things, limit petitioners' proof to the issues raised in the specification of objections filed by Schultz with the SBOE. Prior to the hearing and determination of the petition in Proceeding No. 1, the SBOE invalidated the OTB Petition. Accordingly, Proceeding No. 1 was adjourned without date pending the anticipated filing of a proceeding to validate the OTB Petition.
Hereinafter, references to “respondents” in Proceeding No. 1 shall refer to the members of the Committee to Receive Notices.
On August 8, 2012, the undersigned was presented with an Order to Show Cause bringing on a proceeding to validate the OTB Petition (“Proceeding No. 2”). This proceeding was commenced in the names of Chaya Farkas, Mendel Ekstein and Leib Frankel, as members of the Committee to Receive Notices. Proceeding No. 2 was made returnable on August 10, 2012, and Proceeding No. 1 was renoticed for hearing on the same date.
The Court was notified on August 9, 2012 that many of the anticipated witnesses in these proceedings were residents of the Village of Kiryas Joel who possess only limited English proficiency. Accordingly, counsel to the members of the Committee to Receive Notices requested that a Yiddish interpreter be provided for the hearing. With the able assistance of the Supreme Court Clerk's Office, a per-diem court interpreter from Flushing, New York, Ruth Kohn, was retained to appear at the hearing.
The two proceedings were heard together on a consolidated basis. In light of the SBOE's invalidation of the OTB Petition, the hearing began with petitioners in Proceeding No. 2 presenting proof with respect to the validity of certain signatures invalidated by the SBOE. Respondent in Proceeding No. 2
and petitioners in Proceeding No. 1 then offered proof in opposition to the validation petition and in support of the invalidation petition. Members of the Committee to Receive Notices were then given the opportunity to offer proof in opposition to the invalidation petition, and both sets of petitioners were given the opportunity to put on rebuttal proof.
Hereinafter, references to “respondent” in Proceeding No. 2 shall refer to Robert Schultz.
Although the consolidated hearing began promptly on Friday, August 10, 2012, proceedings had to be adjourned by mid-afternoon in order to accommodate the religious obligations of the Sabbath-observant participants. Further, due to the anticipated need for continued Yiddish interpretation and the schedule of the court interpreter, the hearing could not resume until Wednesday, August 15, 2012. On such date, the hearing continued and proceeded to conclusion late in the afternoon. This Decision, Order & Judgment follows.
ANALYSIS
A.Failure to Join Necessary Party (Proceeding No. 2)
The answer of respondent Schultz in Proceeding No. 2 sets forth the affirmative defense that the petition to validate should be dismissed for failure to name a necessary party: Ann Rabbitt, the only candidate to file Independence Party designating petitions for the Office, the endorsed candidate of the Independence Party, and an aggrieved candidate whose invalidation petition against the Committee members was pending when the validation proceeding was commenced. As such, respondent argues that Ann Rabbitt is a person who may be inequitably affected by the judgment rendered in the validation proceeding ( seeCPLR 1001[a] ).
The law is clear that a citizen-objector is a necessary respondent in a proceeding to validate an Opportunity to Ballot petition ( see Matter of Biscone v. Scaringe, 59 A.D.2d 794, 398 N.Y.S.2d 454 [3d Dept 1977], affd42 N.Y.2d 1075, 399 N.Y.S.2d 656, 369 N.E.2d 1189;see generally Matter of Butler v. Hayduk, 37 N.Y.2d 497, 498 [1975] ). However, neither side has cited, and the Court's research does not disclose, any cases addressing whether an unopposed candidate must be joined in such a proceeding.
There is, however, a substantial body of appellate precedent holding that other candidates for the same public office are not necessary parties to a proceeding concerning the validity of designating petitions where the other candidates' “rights [are] not inextricably interwoven with those of any of the parties [to the proceeding]” and “their names will ... remain on the ballot regardless of the outcome of th[e] proceeding” (Matter of Master v. Pohanka, 43 A.D.3d 478, 479, 844 N.Y.S.2d 311 [2d Dept 2007]; see e.g. Flowers v. Wells, 57 A.D.2d 636, 394 N.Y.S.2d 33 [2d Dept 1977] [“contention that any other candidate must be a party to (a validation proceeding) is without merit”] ). Apart from the obvious similarly between designating petitions and OTB petitions, the foregoing precedent is of particular relevance because judicial challenges to OTB petitions are subject to court determination in the same manner as designating petitions so far as the provisions therefor are applicable (Election Law § 6–164).
Schultz, however, maintains that Proceeding No. 2 is distinguishable in at least two respects. First, Schultz observes that Ann Rabbitt is the only candidate who has been designated on the Independence Party line for the Office. Thus, as things currently stand, Ann Rabbitt is deemed to be the Independence Party candidate at the general election without the need for a primary election ( seeElection Law § 6–160[2] ). If, however, the petitioners in Proceeding No. 2 prevail, the Independence Party line for the Office “shall be deemed contested” and a primary election shall be held ( id.§ 6–164). Schultz also seeks to distinguish this case on the ground that petitioners were well aware at the time of commencement that Ann Rabbitt had brought an invalidation proceeding as an aggrieved candidate to protect her interest in retaining her status as the unopposed Independence Party candidate for the Office.
Respondent Schultz's argument that Ann Rabbitt is a necessary party to the validation proceeding is not without some force. While the case law relied upon by petitioners holds that a candidate is not inequitably affected where she remains on the ballot regardless of the outcome of an invalidation or validation proceeding, there certainly is a substantial argument that a candidate “might be inequitably affected by a judgment” that causes her to lose the mantle of the party's nominee in the general election and requires her to run and prevail in a contested primary election in order to regain that status (CPLR 1001[a] ).
That said, the potential adverse effect on the candidate here is no different than in a case where multiple candidates file designating petitions and a board of elections (or court) invalidates the petitions of all but one candidate. Thus, for example, where two candidates file designating petitions and the board of elections invalidates the petitions of one candidate, the remaining candidate faces the same potential loss of unopposed status when a validation proceeding is brought. Yet the relevant case law plainly holds that the remaining unopposed candidate is not a necessary party to such a proceeding. Moreover, a rule that makes a candidate's status as a necessary party dependent on the outcome of administrative (and possibly judicial) challenges to the validity of the petitions of all other candidate for the same ballot line would appear to raise considerable practical difficulties, particularly given the abbreviated timeframes applicable in election litigation.
The Court also is unpersuaded that Ann Rabbitt's role in prosecuting the invalidation proceeding as an aggrieved candidate and petitioners' knowledge thereof makes her a necessary party to the validation proceeding. If anything, her participation in the invalidation proceeding serves to mitigate any prejudice accruing from her non-joinder, particularly since the two petitions were heard together on a consolidated basis and she is represented in the invalidation proceeding by the same counsel who represents objector Schultz in both proceedings. Under the circumstances, it is difficult to discern any prejudice accruing from her non-joinder. Indeed, Schultz and his counsel have vigorously opposed the validation petition on all available grounds, and the case law holds that where the interests of an absent party are adequately represented by an existing party, joinder may be excused (Matter of New York State Comm. of the Independence Party v. New York State Bd. of Elections, 87 A.D.3d 806, 811, 928 N.Y.S.2d 399 [3d Dept 2011], lv denied17 N.Y.3d 706;Matter of Kryzan v. New York State Bd. of Elections, 55 A.D.3d 1217, 1219, 865 N.Y.S.2d 793 [3d Dept 2008] ).
Based on the foregoing, the Court concludes that an unopposed candidate is not a necessary party to a proceeding to validate an OTB petition and, in any event, Ann Rabbitt's joinder should be excused under the particular facts and circumstances of this case.
B.Lack of Standing (Proceeding No. 2)
Respondent Schultz's answer in Proceeding No. 2 also raises the affirmative defense of lack of standing. As amplified at the hearing and in his memorandum of law of August 14, 2012, Schultz contends that members of a Committee to Receive Notices lack standing to commence a proceeding to validate an OTB petition under Election Law § 16–102(1) and, in any event, the Committee to Receive Notices named in the subject OTB Petition did not authorize a validation proceeding to be brought in its name. In support of the latter contention, Schultz relies upon testimony from two of the three named petitioners in the validation proceeding, Mendel Ekstein and Leib Frankel, stating that they had no involvement with respect to the defense of the invalidation proceeding and the commencement and prosecution of the validation proceeding.
An OTB petition must contain the names of at least three enrolled voters as a Committee to Receive Notices ( seeElection Law §§ 6–164 and 6–166[2]; see also id. § 6–132[1] ). “The Committee to Receive Notices [is] an essential element of an opportunity to ballot petition” (Matter of Werner v. Castiglione, 286 A.D.2d 553, 554, 729 N.Y.S.2d 227 [3d Dept 2001]; see Matter of Krupczak v. Mancini, 153 A.D.2d 785, 545 N.Y.S.2d 51 [3d Dept 1989] ). “All required notices shall be served on the members of the committee named in the [OTB] petition” (Election Law § 6–164).
While the Election Law requires “that an opportunity to ballot petition shall set forth the names of persons constituting a committee to receive notices' and that all required notices shall be served on the members of the committee” ' (Matter of Cass v. Krakower, 13 N.Y.3d 118, 119 [2009] [quoted sources omitted] ), nothing in statute expressly prescribes the powers and duties of a Committee to Receive Notices or specifies how such a committee must operate once its members receive notice of a challenge to an OTB petition.
Nonetheless, it seems clear that a Committee to Receive Notices must have the capacity to defend a challenge to an OTB petition. After all, the committee members are necessary parties to such a proceeding ( see Matter of Cass, 13 N.Y.3d at 119, 885 N.Y.S.2d 448, 914 N.E.2d 140), and if the committee members could not participate in defending the validity of the OTB petition, it would defeat the purpose of serving them with notices and requiring their joinder ( see Community Bd. 7 v. Schaffer, 84 N.Y.2d 148, 155 [1994] [capacity may be implied from functional responsibilities] ). Moreover, a contrary conclusion would inappropriately place the burden of defending an invalidation proceeding solely upon boards of election ( see Matter of Butler, 37 N.Y.2d at 500, 373 N.Y.S.2d 863, 336 N.E.2d 423). Indeed, a review of the case law confirms that Committees to Receive Notices routinely defend against invalidation petitions.
In light of the role played by Committees to Receive Notices in defending against efforts to invalidate OTB petitions, it is reasonable to infer that they must also possess the capacity to allege counterclaims and initiate affirmative litigation directed at validating OTB petitions ( see Matter of Straniere v. Cutolo, 59 A.D.2d 572, 572, 397 N.Y.S.2d 823 [2d Dept 1977], affd42 N.Y.2d 984, 398 N.Y.S.2d 409, 368 N.E.2d 32). The Court certainly has not been presented with any persuasive basis for concluding that a Committee to Receive Notices can defend against challenges to an OTB petition, but is foreclosed from taking affirmative measures that may be necessary to sustain the validity of such a petition ( see Jerry H. Goldfeder, Goldfeder's Modern Election Law, at 56 [3d ed] [counterclaim or validation petition often needed “to resuscitate' signatures that the [board of elections] has improperly invalidated”] ).
Similarly, while Election Law § 16–102(1) does not speak directly to the standing of a Committee to Receive Notices to maintain a validation proceeding, the statute plainly contemplates litigation concerning the invalidity or validity of OTB petitions. Moreover, as discussed previously, Election Law § 6–164 makes judicial challenges to OTB petitions subject to court determination in the same manner as designating petitions. The Court therefore concludes that in bringing a validation proceeding, the Committee to Receive Notices represents the interests of the candidate(s) whose name may be written in on the ballot and, therefore, is properly deemed an “aggrieved candidate” within the meaning of Election Law § 16–102(1).
Accordingly, the Court concludes that a Committee to Receive Notices has the capacity to defend the validity of an OTB petition in an invalidation proceeding and, as relevant in the context of Proceeding No. 2, the capacity and standing to prosecute a validation proceeding.
In view of this conclusion, the undersigned must respectfully disagrees with judicial decisions holding that a Committee to Receive Notices “has only a ministerial function. Its purpose is merely to receive service of notices” (Matter of Application of Fleishman, 31 Misc.2d 326, 327, 219 N.Y.S.2d 839 [Sup Ct, Nassau County, 1961] ). Decisions regarding the defense of litigation and the commencement and prosecution of affirmative litigation appear to represent discretionary, rather than ministerial, functions.
The Court must then address Schultz's related contention: that the Committee to Receive Notices named in the OTB Petition did not authorize the commencement of Proceeding No. 2.
According to Schultz, affirmative action by at least two of the three Committee members is essential for the Committee to validly commence litigation. In making this argument, Schultz relies upon Election Law § 6–166, which provides that the form of an OTB petition and the appointment of a Committee to Receive Notices shall conform to the requirements prescribed for a designating petition. Analogizing a Committee to Receive Notices on an OTB petition to a Committee to Fill Vacancies on a designating petition, Schultz maintains that a majority of the Committee's membership must authorize the commencement of a lawsuit ( seeElection Law § 6–148[2] ). Schultz further relies upon provisions of the Election Law governing political committees and common-law principles governing unincorporated associations in support of the contention that a committee acts through the concurrence of a majority of its members.
At the outset of these proceedings, Schultz also maintained that members of the Committee did not consent to be named on the OTB petition. In light of the testimony from the two Committee members unequivocally stating to the contrary, Schultz appears to have withdrawn this argument, which, in any event, lacks merit.
Although Election Law § 6–166 provides that the appointment of a Committee to Receive Notices shall conform to the requirements prescribed for a designating petition, the statute does not expressly oblige a Committee to Receive Notices to conduct its affairs in the same manner as a Committee to Fill Vacancies. Indeed, in rejecting a similar argument, the Third Department held as follows:
Although Election Law § 6–166(2) provides that the form for the appointment of a Committee to Receive Notices shall be the same as the form for the appointment of a Committee to Fill Vacancies in a designating petition, the two committees, as a substantive matter, serve entirely separate and distinct purposes. Accordingly, we conclude that the absence of a Committee to Receive Notices is not subject to the provision of the Election Law which excuses the absence of a Committee to Fill Vacancies. (Matter of Werner, 286 A.D.2d at 554, 729 N.Y.S.2d 227).
Accordingly, respondent has failed to demonstrate that anything in the Election Law compels a Committee to Receive Notices to act via the concurrence of a majority of its membership.
In this connection, the Court observes that a Committee to Receive Notices clearly is not a “political committee” within the meaning of the Election Law.
Moreover, while not cited by the parties, the Court's research discloses that regulations of the SBOE contemplate a Committee to Receive Notices acting through a single member in certain circumstances. More specifically, with respect to the opportunity to cure petition defects accorded by Election Law § 6–134(2), an SBOE regulation provides as follows:
If the petition is one for an opportunity to ballot, then the first named person on the committee to receive notices ... shall be deemed to be the “candidate” for purposes of [the cure provisions]. (9 NYCRR § 6215.7[e] ).
As noted above, the proof adduced by Schultz demonstrates that two of the three named Committee members did not authorize the prosecution of the validation proceeding (or the defense of the invalidation proceeding). However, respondent has not adduced proof regarding the Committee's third member, Chaya Farkas.
It is further noted that the regulation deems a member of the Committee to be the “candidate” ( see supra ).
As such, it has not been demonstrated to the Court's satisfaction that the validation proceeding was undertaken without the authorization of the Committee to Receive Notices.
The Court notes that Ms. Farkas was directed to appear in Court on August 10, 2012 pursuant to a so-ordered subpoena procured by Schultz's counsel. However, the Court was advised on August 9, 2012 that Ms. Farkas delivered a baby on such date and, therefore, would not be in attendance. While Schultz's counsel initially expressed an intention to re-subpoena Ms. Farkas for the August 15, 2012 hearing date, he disclaimed any intention of calling her as a witness at a conference with the Court on August 13, 2012. And while petitioners' counsel subsequently represented to the Court that Ms. Farkas and her husband would be testifying on August 15, 2012, counsel advised the Court on August 14, 2012 at 4:30 p.m. that the witnesses had decided not to appear. Given that Schultz's counsel disclaimed any intention of securing the attendance of Ms. Farkas or her husband, Alyah, who apparently played a critical role in the OTB petitioning process at issue herein, the Court declines to draw any adverse inference from her lack of testimony. However, for the reasons stated on the record on August 15, 2012, the Court is ordering the members of the Committee to Receive Notices to pay the court interpreter her fee of $250 due to the witnesses' extremely belated decision not to testify, the fact that the interpreter booked the entire day of August 15, 2012 for the hearing based upon the representation that they would testify, and the absence of any excuse or justification for the last-minute decision of the Committee's witnesses not to testify.
In view of the foregoing, the Court has no occasion to determine the legal significance of the testimony of the two Committee members expressing support for efforts to validate the OTB Petition.
Based on the foregoing, respondent's affirmative defense of lack of standing is rejected.
C. Specific Challenges in Validation Proceeding (No. 2)
The SBOE found 22 of the 207 signatures on the OTB Petition to be invalid, leaving a total of 185 valid signatures, 11 short of the required 196 signature threshold.
Five of the invalidated signatures (2:9,
7:9, 10:6, 14:10 and 16:9) were determined by the SBOE to be invalid because the signer was not registered and/or enrolled in the Independence Party. However, records of the Orange County Board of Elections received into evidence demonstrate that each of these five signers are registered voters and enrolled party members. No credible proof was offered to overcome this showing, and the Court determines that the SBOE should not have invalidated the five signatures on such basis.
The foregoing reference and other similar references throughout refer to the sheet and line number respectively of a particular signature on the OTB Petition.
In certain cases, Robert Schultz offered other objections to these signatures that were not sustained by the SBOE. As these grounds were not relied upon by the SBOE, the Court considered these challenges in the context of Schultz's petition to invalidate, which is discussed infra.
The SBOE further invalidated the signatures on sheet 14 based upon an alteration to the signature of the subscribing witness. The Court of Appeals has “long recognized that the witness statement is [e]ssential to the integrity of the petition process' and ha[s] consistently held that alteration of the statement which is unexplained and uninitialed will result in the invalidation of the petition sheet' even if the alterations resulted in the manifestation of correct information” ' (Matter of McGuire v. Gamache, 5 N.Y.3d 444, 448 [2005], quoting Matter of Jonas v. Velez, 65 N.Y.2d 954, 955 [1985] [citations omitted in quoted text] ). However, “where an explanation for the uninitialed change is provided by affidavit or testimony adduced at a hearing, the underlying signatures need not be nullified” (Matter of Curley v. Zacek, 22 A.D.3d 954, 957, 803 N.Y.S.2d 221 [3d Dept 2005], lv denied5 N.Y.3d 714, 806 N.Y.S.2d 165, 840 N.E.2d 134).
Here, the subscribing witness, Samuel Muller, testified without contradiction that any alterations to the witness statement were made prior to him signing. While the Court is troubled by certain gaps in his recollection, it will nonetheless accept his uncontroverted testimony on this point and overrule the SBOE's invalidation of sheet 14.
Finally, the petitioners in Proceeding No. 2 attempted to introduce affidavits to explain three other alterations that resulted in the invalidation of signatures by the SBOE. However, the receipt of these affidavits was objected to by opposing counsel on the ground that such affidavits constitute hearsay, and the Court's receipt of affidavits in lieu of live testimony would deny respondent his due-process right to cross-examine the signers. The Court sustained the objection. While decisional law recognizes that alterations to a petition may be explained “by affidavit or testimony adduced at a hearing” (Matter of Curley, 22 A.D.3d at 957, 803 N.Y.S.2d 221), the Court does not interpret this language as creating a sweeping exception to the general rule barring the introduction of hearsay in court. Rather, the case law relied upon by petitioners is more reasonably understood as reflecting the unremarkable principle that the affidavits of signers may be considered as part of the written submissions filed in support of, or in opposition to, a petition, but they cannot be received at trial over objection unless they fall within an exception to the hearsay rule.
It is further noted that the Court made these rulings on August 10, 2012, and petitioners do not appear to have made any effort to secure the attendance of these signers on August 15, 2012.
No proof was offered with respect to the remaining signatures invalidated by the SBOE.
Based on the foregoing, the Court determines that the petitioners in Proceeding No. 2 have established the prima facie validity of 14 of the 22 signatures invalidated by the SBOE,
which brings the number of signatures up to 199.
It is noted that one of the five signatures validated by petitioners in Proceeding No. 2 appears on sheet 10. Accordingly, the net gain is only 14 signatures.
D. Specific Challenges in Invalidation Proceeding (No. 1)
Petitioners in Proceeding No. 1 then offered proof and argument directed at providing: (a) alternative grounds for invalidating the signatures at issue in Proceeding No. 2 that were not accepted and/or relied upon by the SBOE; and (b) grounds for invalidating signatures that were deemed valid by the SBOE. As narrowed by petitioners' counsel at trial, approximately 40 discrete objections, implicating the validity of the majority of signatures appearing on the OTB Petition, were raised. After hearing the proof adduced by counsel and their arguments and review of the OTB Petition and other pertinent documentary evidence, the Court placed on the record preliminary determinations regarding all but one of the line-by-line objections. The Court hereby adopts these preliminary rulings and the reasons therefor stated on the record as its final rulings, unless otherwise provided herein.
To the extent that there is any conflict between the preliminary rulings stated on the record and what is set forth herein, this Decision, Order & Judgment shall be controlling.
1.Uninitialed Alterations
The Court considered objections to approximately 19 signatures on the ground of uninitialed and unexplained alterations to a signature or date. An alteration consists of a visible change or cross out of information. A material alteration of the signature or date will result in invalidation of a signature where the alteration is not initialed or explained ( seeElection Law § 6–134 [6] [“An alteration or correction of information appearing on a signature line, other than the signature itself and the date, shall not invalidate such signature.”]; Matter of Jonas, 65 N.Y.2d at 955, 493 N.Y.S.2d 1019, 483 N.E.2d 1151;Matter of Sternberg v. Hill, 269 A.D.2d 730, 731, 711 N.Y.S.2d 512 [3d Dept 2000] ). However, an alteration that is mere overwriting and does not change what was originally written generally will not be deemed material (Matter of Schroeder v. Smith, 21 A.D.3d 511, 512, 800 N.Y.S.2d 224 [2d Dept 2005]; see also Matter of McShane v. Coveney, 37 N.Y.2d 789, 791 [1975] ).
The Court finds that five signatures (3:7, 11:6, 18:6, 20:5, 21:6) and one date (7:5) have material alterations that were not initialed or explained. Accordingly, these signatures are invalid. The Court further finds that petitioners' alteration challenge fails with respect to the following signatures for the following reasons: (a) no obvious alteration (1:6, 4:6, 10:6, 10:7, 22:4); any alleged alteration was only to the printed name of the signer, which is not a required element of a petition (17:3, 18:5, 18:10, 20:7, 22:3); and the alleged alteration is merely overwriting that does not visibly change what originally was written (7:9, 18:1, 21:7).
Additionally, petitioners sought to invalidate all of the signatures appearing on sheets 2, 7, 9, 10, 13, 14 and 19 due to alleged material alterations to the statement of the subscribing witness and/or the header. As explained previously, the witness statement is “essential to the integrity of the petition process”, and unexplained material alterations thereto will result in invalidation of the entire petition sheet, even if they result in manifestation of correct information (Matter of McGuire, 5 N.Y.3d at 448, 806 N.Y.S.2d 138, 840 N.E.2d 107 [internal quotation marks omitted] ). Invalidation of the petition sheet also follows if unexplained material alterations are made to other statutorily mandated elements of the petition, such as the date of the election ( see Matter of O'Connor v. Salerno, 105 A.D.2d 487, 488, 480 N.Y.S.2d 633 [3d Dept 1984] ).
Sheets 9, 10, 13 and 14 were witnessed by Samuel Muller, who appeared in Court to explain the alterations. As with sheet 10, which is discussed supra, the Court finds that the testimony of the subscribing witness suffices to confirm that any materials alteration to sheets 9, 13 and 14 were made prior to him signing the witness statements. Further, the alleged alteration to the date on the header of sheet 10 appears to be nothing more than overwriting.
Sheets 2 and 7 were witnessed by Efraim Farkas, who also testified at the hearing. As with Mr. Muller, Mr. Farkas was firm in his conviction that he signed as subscribing witness after all of the alterations to the witness statement were made, but he too was unable to recall details about who originally filled in the subscribing witness information, who made the alterations, when the alterations were made and other particulars of the signature gathering and witnessing process. While some of this possibly could be ascribed to language difficulties, the witness's demeanor and manner of testifying and his apparently selective lack of recollection raise some questions regarding the credibility of his testimony.
Nonetheless, given the unconverted nature of his testimony, the Court declines to disbelieve it entirely, and finds that Mr. Farkas adequately has explained the alleged alterations as to the witness statements.
The Court further notes that certain other witnesses who relied upon the Yiddish interpreter testified in a straightforward, direct and forthright manner.
However, the Court finds that Mr. Farkas's testimony does not explain the alteration to the date of the primary election within the header of sheet 2. As set forth supra, the date of the election is information statutorily required to appear on each sheet of an OTB petition, and the Court's review of sheet 2 reveals that the year in which the election is to be held was altered from “2010” to “2012”. In the absence of any explanation for this material alteration, the Court determines that the signatures on sheet 2 must be invalidated.
Finally, while the first letter of the last name of one of the members of the Committee to Receive Notices on sheet 19 has been altered to reflect the correct spelling, the Court declines to invalidate the signatures on this sheet given that the remainder of the information concerning this Committee member is correct and the absence of any proof that signers were misled or deceived.
2.Signatures
A signature on a petition is invalid where the identity of the signer cannot be established by reference to the signature on the petition and that of a person whose name appears in the registration poll ledgers (Election Law § 6–134[5]; see Matter of Fusco v. Miele, 275 A.D.2d 426, 712 N.Y.S.2d 628 [2d Dept 2000] ). The Court finds that the signature on sheet 2, line 9, particularly the first name, is insufficient to establish the identity of the signer as a registered voter.
Further, the signature on sheet 10, line 7 does not correspond with the name of a person who appears in the register poll ledger. However, the signature challenges to sheet 15, line 8 and any other challenges for which no buff card has been received into evidence must be rejected. Further, for the reasons stated on the record, the Court declines to accept petitioners' claim that the signatures on lines 3 and 4 of sheet 22 do not match, are duplicates or otherwise invalid. Finally, despite the discrepancies in the signature and address on page 14, line 10, the Court is satisfied that the signature on the petition matches a person whose name appears in the registration poll ledgers.
This signature also is invalid due to the unexplained alteration of the election date on sheet 2, supra.
3.Residence Address
“Election Law § 6–132(2) requires a ... witness to list his or her current residence so as to permit the rapid and efficient verification of signatures within the restrictive time periods imposed by the Election Law and thereby facilitate the discovery of fraud” (Matter of Henry v. Trotto, 54 A.D.3d 424, 426, 862 N.Y.S.2d 605 [2d Dept 2008] ). However, a “[d]efect in address may be excused where there is substantial compliance with statute and defect does not confuse, delay or hinder attempt to ascertain or to determine the identity, status and address of the signer or witness (Matter of Toporek v. Beckwith, 32 A.D.3d 684, 684, 821 N.Y.S.2d 685 [4th Dept 2006] ).
Applying this standard, the Court concludes that the use of an abbreviation on sheet 7, line 9 and any other signature line objected to by petitioners does not result in invalidation of the signature(s) ( see alsoElection Law § 6–134[5] “customary abbreviations of addresses”] ). However, the address on sheet 19, line 1 does not match the address on file with the board of elections, and the factual record is insufficient to support a finding that the signer actually resides at the address set forth in the petition and remains eligible to vote for the Office ( cf. Matter of Robelotto v. Burch, 242 A.D.2d 397, 397, 661 N.Y.S.2d 104 [3d Dept 1997] ). Further, this defect hindered efforts to ascertain the identity and status of this alleged signer.
Finally, the Court rejects petitioners' effort to invalidate the many signatures that identify the signer's address as 17 Berdichev Drive. The testimony adduced at trial establishes that this address is a Yeshiva at which several hundred individuals reside. The address supplied by these signers matches the address on file with the board of elections, and no proof was adduced that the occupants of the Yeshiva use any address other than 17 Berdichev Drive for the receipt of mail or any other purpose. Indeed, the record does not contain any proof with respect to whether the residents of the Yeshiva are assigned and/or use unit or room numbers. While the Court credits the testimony adduced by petitioners that so many unrelated individuals sharing a common address hindered efforts to ascertain or determine the identity, status and address of certain signers, the record does not support their claim that the address provided was not correct. And in any event, petitioners did not offer particularized proof regarding the difficulties encountered in ascertaining the identity and/or status of any particular signers who reside at 17 Berdichev Drive and, therefore, failed to meet their burden of proof on this issue.
4.Remaining Issue
The signature on sheet 6, line 5 is invalidated based upon the signer's testimony that the alleged subscribing witness, Efraim Farkas, did not, in fact, witness his signature. While the subscribing witness did testify that he witnessed all of the signatures that he collected, the Court finds, as stated on the record, that the testimony of the signer himself was far more believable than the testimony of the subscribing witness.
CONCLUSION
Following the SBOE's invalidation of 22 signatures, the OTB Petition was left with 185 signatures–11 short of the required threshold of 196. The petitioners in Proceeding No. 2 have succeeded in demonstrating that the SBOE erroneously invalidated 14 signatures, bringing the total number of signatures up to 199. However, petitioners in Proceeding No. 1 have succeeded in invalidating an additional 19 signatures, leaving the OTB Petition with a total of 180 valid signatures, which is 16 short of the necessary threshold. Accordingly, the OTB Petition must be held to be invalid.
Accordingly, it is
ORDERED that the petition in Proceeding No. 2 to validate is denied in accordance with the foregoing; and it is further
ORDERED and ADJUDGED that the petition is Proceeding No. 2 is dismissed; and it is further
ORDERED that the petition in Proceeding No. 1 to invalidate is granted in accordance with the foregoing; and it is further
ADJUDGED that the Independence Party Opportunity to Ballot Petition for the public office of Member of Assembly for the 98th Assembly District in the primary election to be held on September 13, 2012 is invalid, insufficient and of no legal force or effect; and it is further
ORDERED that the New York State Board of Elections is enjoined from allowing an opportunity to ballot petition on the Independence Party line at the September 13, 2012 primary election for the public office of Member of Assembly for the 98th Assembly District; and it is further
ORDERED that Chaya Farkas, Mendel Ekstein and Leib Frankel shall pay to Ruth Kohn, 150–25 72nd Road, Apt. 1C, Flushing, N.Y. 11367, the sum of $250 within thirty days from the date of service of this Decision, Order & Judgment with notice of entry upon their counsel; and it is further
ORDERED that counsel to Robert Schultz shall serve this Decision, Order & Judgment with notice of entry upon all other counsel and Ruth Kohn forthwith; and finally it is
ORDERED that any motions or applications not specifically addressed herein are denied.
This constitutes the Decision, Order & Judgment of the Court. The original Decision, Order & Judgment is being transmitted to counsel to Robert Schultz and Ann Rabbitt. The exhibits introduced at trial are available in Chambers for counsel to retrieve. All other papers are being transmitted to the Albany County Clerk for filing. The signing of this Decision, Order & Judgment shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and notice of entry.