Opinion
Index No. 50372/2023 Motion Sequences No. 1 2
08-29-2023
MICHAEL E. STERN, Petitioner-Candidate Aggrieved, v. THE PUTNAM COUNTY BOARD OF ELECTIONS, CATHERINE P. CROFT and KELLY PRIMAVERA, COMMISSIONERS CONSTITUTING THE BOARD, Respondents,
Unpublished Opinion
DECISION AND ORDER
Greenwald, J.
The Court has read and/or reviewed the following in determining the within Decision and Order: NYSCEF Documents numbers 1-36 as well as the transcript of the oral argument conducted in open court on July 27, 2023.
PROCEDURAL HISTORY
According to the Putnam County Clerk's Certification of Minutes concerning this matter under Putnam County Index # 500861-2023 Petitioner and Aggrieved Candidate MICHAEL E. STERN (Stern) filed the instant Petition on June 10, 2023 in Putnam County Supreme Court pursuant to CPLR Article 78, Election Law 16-102 and CPLR 3001. The Petition was filed against Respondents THE PUTNAM COUNTY BOARD OF ELECTIONS (the BOE), CATHERINE P. CROFT and KELLY PRIMVERA COMMISSIONERS CONSTITUTING THE BOARD (Croft or Primavera or the Commissioners collectively). The relief sought was a declaration that Stern's designating petition as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent is valid and further relief.
In his Petition, Stern claims that on May 26, 2023, a designating Petition was "......timely filed with the Respondent Board of Elections purporting to designate the Petitioner, as a candidate of the Concerned Citizens of Carmel line for the public office of Town of Carmel Superintendent of Highways at the General Election to be held November 7, 2023."
Further, Stern claims he timely personally mailed his Certificate of Acceptance (The COA) on May 27, 2023, to the BOE in a postage paid envelope deposited into a United States Postal service mailbox. However, the BOE sent Stern a letter on June 6, 2023, informing him that the BOE had not received his COA and that his Designating Petition was, thereby null and void. However, as claimed in paragraph 10 of Stern's petition:
10. The Respondent Board of Election's determination that the Petition is null and void based solely upon a claim that the Certificate of Acceptance was not timely filed is erroneous, arbitrary and capricious.
THE ORDER TO SHOW CAUSE:PROCEDURAL HISTORY
On June 12, 2023, Petitioner filed a proposed Order to Show Cause in the Supreme Court, Putnam County (Motion Sequence #1) with "accompanying commencement doc(s).", seeking an order "declaring sufficient and valid the purported designating petition heretofore filed with Respondent Board of Elections, purporting to designate Stern as candidate for public office of Town of Carmel Highway Superintendent in the general Election scheduled to be held on the 7th day of November 2023". Note that this proceeding in June 2023 was seeking a decision that would affect the November 7, 2023, election, almost five (5) months in the future.
Further on June 12, 2023, the Hon. Gina C. Capone, JSC issued a Recusal Order as did the Hon. Victor G. Grossman, JSC. A "Corrected" Recusal Order was issued on June 13, 2023, by the Hon. Joseph J. Spofford, Jr., ASJC. The Justices of the Supreme Court of Putnam County had all recused, and the matter now had to be transferred to another county.
By Order (Minihan, AJ) dated June 13, 2023, but filed in NYSCEF on June 14, 2023, this matter was transferred to Westchester County Supreme Court, the Hon. Hal B. Greenwald, JSC presiding. As this matter did not have a Westchester County Index number, petitioner was directed to file another RJI to obtain Westchester County Index number 50372-2023 and the OSC became available for review on June 14, 2023, when it was signed with an initial return date of June 20, 2023, for an in-court appearance. It appears that this matter was not urgent, and on June 19, 2023, Respondent BOE filed a Notice of Motion to Dismiss (Motion Sequence #2) to be returnable July 5, 2023. Without any time issue, Opposition to said Motion was filed on July 5, 2023, and a Reply on July 18, 2023. The matter was heard on the record in open Court on July 27, 2023.
PETITEIONER STERN'S ARGUMENT OF PROPER MAILING
Stern's argument is essentially that on May 27, 2023, he timely mailed the COA to the BOE in an envelope with sufficient postage in a U.S. Postal service mailbox addressed to the BOE. His position is that there is a legal presumption that once something is mailed as described above, it has been mailed. His designating petition, he claims, had 1656 signatures which is 931 mort than the required number of 725. He further claims he contacted the BOE on a daily basis after his mailing and did not know anything was amiss until he received the June 6, emailed letter from the BOE. There is no dispute that a mailing on May 27, 2023, is a timely mailing of Stern's Certificate of Acceptance.
Stern's counsel's affirmation restates the above and cites portions of relevant Election Law. It is claimed that pursuant to Election Law 6-158[2] a COA shall be filed ".no later than the fourth day after the last day to file such designation.". (Para 8). Additionally in Para 9 he states:
9. Pursuant to Election Law Section 1-106: "all papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received."
Attorney Murtagh cites several cases in support of Stern's argument:
1. Matter of 5421 Sylvan Ave. Assoc. Corp. v New York City Conciliation &Appeals Board, 100 A.D.2d 812 (1st Dept. 1984) stated: The common-law rule is that a letter properly stamped, addressed and mailed is presumed to have been delivered (News Syndicate Co. v Gatti Paper Stock Corp., 256 NY 211). A mere allegation of non-receipt is not sufficient to rebut this presumption of receipt (see Trust & Guar. Co. v Barnhardt, 270 NY 350).
2. Trusts & Guar Co V Barnhardt 270 N.Y. 350 (1936) The question herein was whether it was an issue of fact that a recipient's testimony that he never received a purported notification. The Court of Appeals stated in 1936: It is a general rule that the law presumes that a letter properly addressed, stamped and mailed is duly delivered to the
addressee. (Calkins v. Vaughan, 217 Ala. 56; News Syndicate Co. v. Gatti Paper Stock Corp., 256 N.Y.211.)
3. Progressive Cas. Insu. Co. v Infinite Ortho Prod., Inc/ 127 A.D.3d 1060 (2nd Dept, 2015) concerned the timely and proper mailing of denials of claims and stated: Generally, "proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 A.D.3d 33, 46 [2013] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 A.D.2d 335, 336 [1998])".
In Progressive, Supra, unlike the case at bar, the witness could not state with certainty how the envelopes containing denials was addressed, whereas Stern's Affidavit is clear on what actions he took to mail his COA to the BOE.
Attorney Murtagh concludes that without any evidence by the BOE to rebut the presumption that Stern timely mailed his COA to the BOE it would be correct that: ".. .Petitioner's Certificate as filed by mail must be deemed received and, there being more than a sufficient number of signatures on Petitioner's Designating Petition and no other objection having been filed, Petitioner's Designating Petition must be deemed valid, the Respondent's ruling otherwise is facially erroneous, arbitrary and capricious and Respondents should be ordered to place Petitioner's name on the November 7, 2023 General Election ballot as the Concerned Citizens of Carmel candidate for the public office of Superintendent of Highways for the Town of Carmel".
THE BOE'S MOTION TO DISMISS
The BOE moves to dismiss Stern's Petition is pursuant to CPLR 321 that it is barred under Election Law 16-102 and that ".the Court lacks subject matter jurisdiction." In support of this position Respondent cited several cases:
1. Matter of Angletti v Morreale 25 N.Y.3d 794 (Court of Appeals 2015) The petitioner filed an Order to Show Cause to invalidate a designating petition. The trial court signed the Order to Show Cause and authorized service by 10 methods. Petitioner selected "nail" and "mail service on or before the last day to serve to commence this proceeding. The Supreme Court, the Appellate Division and Court of Appeals all
affirmed that the method of service ("nail &mail") of the petition to strike respondent's name from the official ballot was proper even though the receipt of the "mail" service would be outside the statutory period.
2. Matter of Eckart v Edelstein 185 A.D.2d 955 (2nd Dept, 1992) The last day to institute the proceeding regarding a designating petition was August 10, 1992. Petitioners commenced the proceeding by ".service of the order to show cause and petition on August 11, 1992. Thus, it was not timely commenced, and the court lacked jurisdiction to consider the merits of the petitioners' claims.".
3. Visconit v Paino 137 Misc.2d 1 (Supreme Court, Dutchess County) A certificate of nomination was filed on August 28, 1987, making September 8, 1987, the ".outside date on which to commence this proceeding". Petitioner filed its Order to Show cause on September 4 and September 8 and several Dutchess County Justices recused. The matter came before the deciding Justice on September 10, 1987, and, ".the court deemed it an equitable and proper exercise of judicial discretion to sign the order to show cause nunc pro tunc as of September 4,1987, the date when the order would have presumably been signed absent the disqual fications. However, a stipulation was placed on the record which expressly reserved determination of the jurisdictional issue. The court now reaches that issue. The Court found that petitioner could have timely instituted the proceeding by Notice of Petition and then moved by Order to Show Cause for a more immediate return date. Therefore, the proceeding was not timely commenced, and the court did not have jurisdiction and the petition was dismissed.
No doubt that respondents' position is that this is very similar to the case at bar and therefor proposes that the instant proceeding must be dismissed under Election Law. However, herein petitioner claims not only was his mailing timely, thus removing this matter from any Election Law timeliness issues, but petitioner has also claimed this proceeding is commenced as an Article 78 proceeding not commenced under Election Law and that a four-month statute of limitations would apply
THIS MATTER CANE BE VIEWED AS AN ARTICLE 78 PROCEEDING
As is stated repeatedly in the Murtagh Affirmation [in Opposition to Dismissal Motion] the instant proceeding was commenced as Article 78 proceeding seeking mandamus and judicial review of the decision of the respondent BOE that deemed null and void Stern's designating petition. If this position is sustained, than the subject Order to Show Cause was filed timely and the BOE Motion to Dismiss would be denied.
Murtagh wants this court to differentiate the cases cited above, Visconti and Eckart from the situation at hand by reason that Stern is an Article 78 proceeding not commenced pursuant to Election Law Article 16. Further, Murtagh has cited several cases that for the purpose of showing a proper alternative to an application under Election Law is a mandamus application under an Article 78 petition. He has cited the following cases.
1. Matter of Mansfield v Epstein 5 N.Y.2d 70 (1958) There were independent nominating petitions that first were timely accepted then rejected by the BOE because the two member BOE could not agree on the petitions' validity The petitioners filed an Article 78 proceeding. However, the trial court treated the action as one under the Election Law and examined the nominating petitions, finding there were not enough valid signatures and denied the petitioners' application to place their names on the ballots. The Third Department affirmed in a very short decision. The Court of Appeals found that under Election law the Commissioners' act of examining the nominating petitions to determine if a sufficient number of signatures were contained therein was a ministerial act. Therefore, it was ".. .reviewable not only in a proceeding brought under section 330 of the Election Law [precursor to Election Law Article 16] but, likewise under article 78 of the Civil Practice Act [precursor to the CPLR]. In any event there were not enough signatures, so the petition was dismissed. That is not the situation herein where there are over 990 more signatures than needed.
2. Matter of Sanshyn v Commissioners of Election of County of Tioga 36 Misc.2d 389 (Supreme Court, Tioga County 1962) There were certain irregularities in the handling of the subject petition by the Town Clerk. However, the Court held that the action sought by the petitioner, namely, to direct the Commissioners of Elections to omit from the ballot four proposed questions relating to the sale of alcoholic beverages in
the subject town was a ministerial act and subject to the subject Article 78 petition and statute of limitations not Election Law.
3. Rivera v Northrup 26 A.D.2d 612 (4th Dept, 1966) This case was somewhat different. It was an Article 78 proceeding couched as mandamus for Commissioners of Election to perform an allegedly ministerial act. However, it was an action that required making a determination of issues of fact concerning fraud. The trial court granted the petition but the appellate court reversed determining fraud was not a ministerial act that could be decided as an Article 78 proceeding.
4. Matter of Kofler v Weiss 48 Misc.2d 1 (Supreme Court, Special term, Suffolk County, 1965) Similarly to Rivera above, the Article 78 proceeding would be acceptable but for the fact that the mandamus sought really is not ministerial. The respondents would have to make an "exercise of judgment and discretion, making the act to be performed by respondents a judicial one." Petition denied as untimely under Election law and improper as to an Article 78.
5. Matter of Foote v Lee 175 Misc. 60 (Supreme Court, Trial and Special term, Delaware County, 1940) Respondent officials sought to dismiss the petition brought to compel officials to perform a certain ministerial act under Article 78 claiming the petition was untimely under Election Law. The trial court held that the ".remedy provided by the Election Law is not exclusive.". Motion to dismiss was denied. The Court finding that the alternative under Article 78 was applicable.
6. Bonacker v. Chuckrow 166 Misc. 171 (Supreme Court, Rensselaer County, 1938) It appears that the injunctive relief sought herein under the guise of an Article 78 proceeding was not within the scope of an Article 78 proceeding. Petitioner who believed he was elected to the position of supervisor sought to ".enjoin respondents from organizing as board of supervisors and clerk thereof without due notice to petitioner.". Although an Article 78 proceeding may be the correct proceeding in Bonacker it appears that the final tally of votes has not yet been completed. Petition dismissed.
7. Frank v Eaton 225 A.D. 148 (3rd Dept, 1928) The relevant issue decided is that the Election Law is not the exclusive remedy in the Frank matter. In Frank the plaintiff was legally nominated for the position of justice of peace. However, the Clerk
illegally and wrongfully caused the ballot to add the words "Short Term" after the title of the office opposite the plaintiff's name on the ballot. He was not elected because there was no such justice of peace "Short Term" position. Plaintiff sued for damages which was dismissed by the lower court but reversed and remanded in the appellate court as a viable cause of action, other than one brought under Election Law.
There is an alternate issue under Election Law Article 16 pursuant to which it can be viewed that the petitioner herein, Stern is literally one day late in filing for judicial relief. Respondents have based their application to dismiss (Motion Sequence #2) strictly on this issue. That the Putnam County Supreme Court Justices recused and said filed recusals took a certain amount of time, that the matter was transferred to Westchester County and that transfer took some additional times were of no import as a valid excuse under Respondent's argument. It was stated by respondents, and supported by case law, that the petitioner could and should have timely filed a Notice of Motion or sought another court in another County instead of waiting for the underlying Order to Show Cause to be signed by a Justice of the Supreme Court to whom it was ultimately assigned.
Along those lines, petitioner cited Matter of Pell v Coveny 37 N.Y.2d 494 (1975) where on the same day that the petitioner learned 4 weeks after the last day to file that his designating petitions were invalid, said petitioner commenced a proceeding to validate said designating petitions. In other words, ".. .when the petitioners only learned by telephone of the board's determination, the time for seeking judicial review had already expired.". The Supreme Court granted the petition, but the Second Department reversed. The Court of Appeals reversed and granted the petition. The Court of Appeals concluded that the legislative intent of the relevant statute must be taken into account and stated:
It is fundamental that a statute must be read with the legislative goal in mind, so that controversies generated by ambiguities or gaps in the law may be resolved in accordance with the legislative scheme. (See 1 Kent Commentaries 462.) Courts are obligated to apply a statute to the extent possible to accomplish its purpose and to avoid incongruous, unreasonable, or unjust results. If we were to apply the statute
in this case simplistically, based on a mechanical reading of language, the legislative purpose of providing a judicial remedy would be denied in precisely the kind of case where it might be most needed, namely where the board has been guilty of undue delay unnecessarily, or worse, deliberately (cf. Davidson v Eastman, 35 N.Y.2d 735). Here, the petitioners received notice of the Election Board's determination that their designating petitions were invalid after the 14-day period had run. The instant proceeding was commenced on that same day. To hold that the petitioners are foreclosed from seeking their statutory remedy under these circumstances would be to frustrate the legislative purpose and lead to a perverse result.
Although the instant situation is somewhat different under Election Law Article 16 petitioner's argument could be that the subject Order To Show Cause was filed timely, although it was not signed until 2 days later through no fault of the petitioner. Thus, the legislative intent of Article 16, to have timely judicial review of administrative errors concerning election issues would be fulfilled by excusing the two-day delay. But there may be another remedy for petitioner under Article 78.
RESPONDENT'S REPLY REFUTES AN ARTICLE 78 CLAIM
Respondents interposed its Reply filed July 18, 2023, essentially proposing that the subject Order to Show Cause is not an Article 78 proceeding, and it is governed by Election Law statute of limitations. Respondents cite several cases:
1. Matter of Corrigan v Suffolk County Bd. Of Elections 77 Misc.3d 309 (Supreme Court, Suffolk County) The petition herein was commenced under Article 78 and Election Law 16-102(2) alleging certain acts of the respondent in disqualifying the designating petition were arbitrary and capricious. It was not commenced as an Article 78 mandamus proceeding. There were valid factual reasons why the disqualification was upheld, and the Election Law statute of limitations was applied. Most importantly, the Court found that the actions taken by the respondents had a rational basis in the record and were not "arbitrary and capricious". Thus, the petition itself had no merit.
2. Matter of Independence Party of Orange County v New York State Bd. Of Elections 32 A.D.3d 804 (2nd Dept, 2006) This is a relatively short decision under Election Law 16-102(2) although purportedly brought as an Article 78 proceeding. This matter involved a Wilson-Pakula certificate to authorize a non-member of the Independence party to run on the Independence line for the office of Assembly, 97th District in the September 12, 2006, primary. The proceeding brought to remove this candidate's name was commenced on August 25, 2006, and was "time barred". The lower court denied the petition on September 6, 2006 and the Second Department affirmed on September 11, 2006. Time certainly was of the essence herein, not so much in the instant matter before the court, where election day is almost five months in the future from the filing.
3. Matter of Ciotti v Westchester County Bd. Of Elections 109 A.D.3d 988 (mem) 2013 Slip Op 06000 (2nd Dept, 2013) Another relatively short decision that stated succinctly: "Notwithstanding the characterization of this proceeding as one pursuant to CPLR article 78, the petitioners seek to exclude candidates from the ballot based on their alleged failure to comply with the nomination and designation procedures of Election Law article 6, as supplemented by the general provisions of1Election Law § 1-106. Accordingly, this proceeding is governed by the statute of limitations set forth in Election Law § 16-102 (2) The relief sought, although couched as mandamus the petition asked the Board to reject as "fatally defective and void" [a judgment call, not an administrative act] certain designating petitions. This action was commenced as an Article 78 proceeding on August 26, 2013 concerning the primary election to be held on September 10, 2013. The trial court dismissed this matter as untimely and it was affirmed by the Second Department.
4. Matter of DeStefano v Borkowski 153 A.D.3d 817 (2nd Dept, 2017) Once again, another short decision. The Second Department reversed and said the matter was not timely commenced by complying with notice under Election Law 16-102 and should have been dismissed.
5. Matter of Ehle v Wallace 195 A.D.2d 1086 (4th Dept, 1993) Even shorter. Supreme Court found the matter was timely. The 4th Department reversed and dismissed the petition. It found that an action under Election Law is commenced by the service of
the order to show cause not the filing. The court stated: The Election Law specifically provides when an action is commenced. Election Law § 16-116 (formerly Election Law § 335) provides that a respondent is entitled to notice of the proceeding "as the court or justice shall direct". That requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced (Matter of King v Cohen, 293 NY435,439; see also, Matter of Moore v Milhim, 109 A.D.2d 810). Because respondent was not served with the order to show cause until after that date, his motion to dismiss must be granted. *1087
6. Laurey v. Siglin 41 Misc.3d 1228(A) 2013 WL 6065936 (N.Y.Sup.) 2013 N.Y.Slip Op 51873(U) (Supreme Court, Chemung County), the proceeding was pursuant to Election Law Article 16. The ultimate issue was service of the Order to Show Cause. Service by an Amended Order to Show Cause was to be effectuated at "respondents' respective residences or places of business". Service was made on the street upon another Sheriff and not at the respondent's place of business or residence. The Court found that such service was not "effected at such time and in such manner as would normally be expected to result in receipt within the statutory period. Further service was not made upon one to comply with suitable age requirements for service. Court granted the motion to dismiss the entire proceeding.
CONCLUSIONS
UNDER ARTICLE 78
Petitioner Stern has established, to this Court's satisfaction, that he timely mailed his Certificate of Acceptance to the BOE on May 27, 2023. There has been nothing offered in opposition to this position by the respondents that would refute this action. The immediate issue is for this Court to direct the Commissioners of the Putnam County BOE to designate the Petitioner-Candidate Aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent. It appears to this Court that the act of designating Stern as a candidate is a ministerial act, and that this has been a general consensus of many courts. Accordingly, it has also been found that a mandamus pursuant to CPLR Article 78 is the proper vehicle to order the respondents to so designate. Notwithstanding, that the context of the proceeding is an election law issue, the Court grants petitioner's application pursuant to CPLR Article 78.
UNDER ELECTION LAW 16-102
If the matter were to be considered under Election Law 16-102, the relevant portion of that statute as to filing states:
2. 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;
Although the respondent BOE alleges it held a meeting on June 6, 2023, which declared the invalidity of Stern's designating petition, and purportedly it was emailed to Stern the same day. If this is correct, three business days brings us to June 9 a Friday. Respondent claims the last day for filing of the petition herein was June 13, 2023, which is later than June 9. The Putnam County Clerk's record is clear that Stern filed his petition with NYSCEF on June 10, 2023. A proceeding concerning the validity of a designating petition is a special proceeding which is heard upon a verified petition. (see Election Law section 16-116 below:
£ 16-116. Proceedings; provisions in relation thereto
Currentness
A special proceeding under the foregoing provisions of this article shall be heard upon a verified petition and such oral or written proof as may be offered, and upon such notice to such officers, persons or committees as the court or justice shall direct and shall be summarily determined.
The relevant statute concerning how a special proceeding is commenced is CPLR section 304 which states in relevant part:
£ 304. Method of commencing action or special proceeding
Currentness
(a) An action is commenced by filing a summons and complaint or summons with notice in accordance with rule twenty-one hundred two of this chapter. A special proceeding is commenced by filing a petition in accordance with rule twenty-one hundred two of this chapter. (Emphasis added)
As to the timeliness of the proceeding, the judicial record is clear. Petitioner filed his petition on June 10, 2023. The proposed Order to Show Cause and "accompanying commencement doc(s), the RJI, Affidavit in Support, Affirmation of Support, Exhibits (3) Orders of Recusal (2) were all filed on June 12, 2023. A third Order of Recusal was filed June 13, 2023 and the Order of Transfer was signed June 13, 2023 and filed on June 14, 2023 in NYSCEF. On the afternoon of June 14, 2023, this Court received the Order of Transfer dated June 13, 2023. Internal inquiry was made as to whether there were any relevant deadlines, as this was identified as an election law issue. The same afternoon, the Order to Show Cause was prepped for the Court's signature, but it could not be uploaded to NYSCEF as it had not yet been assigned Westchester County index number. Ultimately, that same afternoon, the Order to Show Cause was signed providing for CPLR 3089(2) personal service upon the respondents at the Putnam County BOE or upon the respondents at their home or office on or before noon on June 15, 2023. The next day. (Emphasis added)
Unlike in Kiernan v New York State Board of Elections, 95 A.D.3d 1242 (2nd Dept, 2012) Petitioner complied with the service requirements of the Order to Show Cause. Kiernan stated:
A special proceeding commenced pursuant to Election Law article 16 must be heard upon such notice to such officers, persons, or committees as the court or justice may direct (see Election Law § 16-116). Since strict compliance with the service provisions of the order to show cause is jurisdictional in nature, the Supreme Court here did not have jurisdiction to entertain the proceeding (see Election Law § 16-116; Matter of Haggerty v. Queens County Republican Committee, 92 A.D.3d 681, 937 N.Y.S.2d 893; Matter of Gorman v. Board of Elections in the City of N.Y., 76 A.D.3d 658, 905 N.Y.S.2d 778 ; Matter of Caruso v. Nassau County Bd. of Elections, 186 A.D.2d 701, 589 N.Y.S.2d 789)
Further unlike Kiernan Stern's petition had nothing to do with a Primary Election, as that date had already passed. There was no such urgency of Stern's petition as is typical of those election law cases where designating petitions must be scrutinized as to the validity of signature. Here, Steen's designating petitions contained over 900 more signatures than required. These designating petitions were not contested. If the notice to respondents was 1 or 2 days "late", it obviously had no impact on respondents because they filed a Notice of Motion to Dismiss on June 19, 2023, with a proposed return date of July 5, 2023. Certainly there was no prejudice or urgency. Petitioner was permitted to file opposition on July 5, 2023, and respondent filed its reply on July 18, 2023. Ultimately, this matter was heard by the Court on July 27, 2023. So where is the prejudice? Where is the urgency? There is none in this case.
In summation, Respondents seek to dismiss this matter stating the action was not timely commenced. Respondents state that the last day to commence the petition was June 13, 2023, and since Petitioner failed to serve the petition upon Respondents by said date, the instant petition is untimely.
It is well settled that substantial compliance is acceptable as to details of form, but there must be strict compliance with statutory commands as to matters of prescribed content. See, Hutson v Bass, 54 N.Y.2d 772, 774 [1981]. This Court finds that Petitioner substantially complied with the law as there is no language in the statutes that requires service of this type of petition be made by the last day the petition could be filed. The relevant statutes provide that an action is commenced by the filing of a verified petition however, case law is somewhat different.
Respondent's reliance on the case Visconti v Paino is misplaced. Visconti v Paino, 137 Misc.2d 1, [Sup Ct 1987], aff'd, 133 A.D.2d 875 [2d Dept 1987]. Even as Respondent's propose the legal strategy that Petitioner should have taken; i.e file in another county, file a Notice of Motion than an Order to Show Cause, etc., it is entirely speculative under the circumstances. There was more than one recusal in this matter and a transfer from one county to another. Petitioner's petition was administratively in limbo, whereby the outcome could not have been known or even fathomed. Petitioner properly and timely filed his petition and Order to Show Cause, not knowing there would be three recusals and a transfer to another county that would cost him time. However, unlike the Petitioner in Viscont Supra, the Petitioner herein had no recourse but to wait until the Court process took place, which took days. It was not because Petitioner had not filed timely, he had filed on June 10, 2023, but the fairness of our justice system is designed to allow those before and behind the bench procedural protections, which may at times take longer. Recusals and a transfer were part of the procedural process.
Respondent could not guarantee that any other approach would not have the same outcome. Our justices, litigants nor our court system should not be penalized for utilizing proper procedures. The Court has made exceptions for Petitioners who have substantially complied with the statutes, but delivery of the petition on June 13, 2023, was impossible under the circumstances of his proceeding. See, Matter of Angletti v Morreale, 25 N.Y.3d 794, 797-98 [2015]. This Court finds that Petitioner timely filed and complied with the directives of the court pursuant to Election Law 16-102 (2) to the extent possible in this situation. This interpretation is strictly fact based on the case at hand and is not meant to declare any precedent. The Court further denies the Motion to Dismiss by respondents herein. UNDER CPLR 3001
This part of the proceeding was not discussed in any great detail. However, this action was also commenced pursuant to CPLR 3001 for a declaratory judgment. The relevant statutes states:
£ 3001. Declaratory judgment Currentness
The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. if the court declines to render such a judgment it shall state its grounds.
The Court has reviewed all the above and hereby declares that the Designating Petition Purporting to Designate the Petitioner-Candidate Aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent in the General Election to be held on the 7th day of November 2023 is a valid designating petition.
By reason of all the foregoing it is
ORDERED that the petitioner's Order to Show Cause (Motion Sequence #1) seeking an Order declaring valid the Designating Petition purporting to designate the petitioner-candidate aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent in the General Election to be held on the 7th day of November 2023 and compelling the said respondents Putnam County Board of Elections, Catherine P. Croft and Kelly Primavera, Commissioners constituting the Board, or their assignees or successors, to place and print the name of said petitionercandidate aggrieved on the Official Ballots of such General Election to be held on the 7th day of November, 2023 is GRANTED, and it is further
ORDERED that the respondents' Motion to Dismiss (Motion Sequence #2) seeking an Order dismissing Petitioner's petition in its entirety pursuant to CPLR §§ 3211(a)(1), 3211(a)(5), and 3211(a)(8) including every cause of action contained therein, on the grounds that the proceeding is barred under New York State Election Law § 16-102(2) is DENIED; and it is further.
ORDERED that the petitioner's Petition seeking an Order pursuant to CPLR Article 78 declaring valid the Designating Petition purporting to designate the petitioner-candidate aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent in the General Election to be held on the 7th day of November 2023 and compelling the said respondents Putnam County Board of Elections, Catherine P. Croft and Kelly Primavera, Commissioners constituting the Board, or their assignees or successors, to place and print the name of said petitionercandidate aggrieved on the Official Ballots of such General Election to be held on the 7th day of November, 2023 is GRANTED, and it is further
ORDERED that the petitioner's Petition seeking an Order pursuant to Election Law 16102 declaring valid the Designating Petition purporting to designate the petitioner-candidate aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent in the General Election to be held on the 7th day of November 2023 and compelling the said respondents Putnam County Board of Elections, Catherine P. Croft and Kelly Primavera, Commissioners constituting the Board, or their assignees or successors, to place and print the name of said petitionercandidate aggrieved on the Official Ballots of such General Election to be held on the 7th day of November, 2023 is GRANTED, and it is further
ORDERED that the petitioner's Petition seeking an Order pursuant to CPLR 3001 declaring valid the Designating Petition purporting to designate the petitioner-candidate aggrieved Michael E. Stern as a candidate of the Concerned Taxpayers of Carmel for the Public Office of Town of Carmel Highway Superintendent in the General Election to be held on the 7th day of November 2023 and compelling the said respondents Putnam County Board of Elections, Catherine P. Croft and Kelly Primavera, Commissioners constituting the Board, or their assignees or successors, to place and print the name of said petitionercandidate aggrieved on the Official Ballots of such General Election to be held on the 7th day of November, 2023 is GRANTED.
Any relief not specifically granted herein is denied.
The forgoing constitutes the decision and order of this Court.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that where the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.