Opinion
704993/20
05-04-2020
Ignazio S. TERRANOVA, Petitioner, v. The BOARD OF ELECTIONS in the City of New York, Respondent.
The following papers numbered E2-E22 read on this motion by petitioner for a Judgment to validate the petitioner's designating petition by which be seeks placement on the ballot for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York in the June 23, 2020 Democratic Party Primary Election.
Papers numbered:
Order to Show Cause-Petition-Affs- service E2-E4, E6, E9, E11
Affirmation in Opp E7-E8
Aff in Further Support — Exhs E11, E12-E20
Answer E22
Upon the foregoing papers, the Petition is granted.
This is a motion by petitioner for a Judgment pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, declaring valid as the Designation petition which named the petitioner as a Candidate for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York, in the Democratic Party Primary Election to be held on June 23, 2020, and to print and place the name of said Candidate upon the official ballots of such Primary Election.
On March 19, 2020, a petition and coversheet designating Ignazio S. Terranova as a candidate for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York in the Democratic Party Primary Election to be held on June 23, 2020 was filed with the respondent Board of Elections in the City of New York. (Hereinafter the Board). Pursuant to the Rule D1of Rules of the Board of Elections in the City of New York, and the Rules and Regulations of the State Board of Elections ( 9 NYCRR 6215.7 ), a proposed candidate's petitions and coversheet must be reviewed for compliance with the Rules within two (2) business days of filing. Upon any discrepancy, the candidate or the contact person shall be notified in writing with an Non-compliance Notice (NCN) immediately by overnight mail of any defect. (Rule D 3; and 9 NYCRR 6215.7 [c].) The candidate then has three (3) days to correct the defect. ( Election Law 6-134(2) ; and see, 9 NYCRR 6215.7 ). Pursuant to Rule D4, the NCN shall inform the candidate that the failure to submit corrections within the 3-day period is a fatal defect. It is noted that in February 2019, the Board changed its rules to provide that NCN letters be sent via overnight mail to either candidate or the contact person.
The deadline for the filing of objections was April 23, 2020. No objections were filed to petitioner's petition or the coversheet.
Petitioner argues that upon the filing of his petitions and coversheet on March 19, 2020, any NCN would have been required to be sent via overnight mail by March 23, 2020, with receipt on March 24, 2020. Indeed, an NCN notice was prepared by the NYC Board informing petitioner of an error on the coversheet to wit: that his name was misspelled as "Ignacio S. Terranova." However, it is undisputed that petitioner's name was correctly printed, being Ignazio S. Terranova, on the sheets of the petitions.
Petitioner states that the respondent Board mailed an NCN letter, dated April 1, 2020, with regard to this discrepancy. Petitioner maintains that this notice was dated 9 days past the aforesaid 2-day deadline. Petitioner alleges that on a date that was not known to him, two members of the Board of Elections invalidated his petition for failure to timely respond to the NCN letter. Petitioner states that he learned that he had been removed from the ballot on April 13, 2020. The petition in this matter was filed on April 14, 2020 and the order to show cause was signed on April 16, 2020. On April 19, 2020, petitioner's counsel sent a letter the Board requesting that an amended coversheet correcting the typographical error in the spelling of petitioner's name be accepted. However, at a hearing held on April 23, 2020, the Board declined to allow this attempt at a cure, or for petitioner to be heard thereon.
Respondent states that on March 31, 2020, petitioner's filing was reviewed and, upon the finding of the misspelling on the coversheet, an NCN letter was sent out via overnight mail on April 1, 2020. It is respondent's position that insofar as no amended coversheet was received within three days, the petition was invalid as of April 1, 2020, and that petitioner had three business days thereafter to commence an action, to wit: until April 6, 2020. Insofar as the action was not commenced until April 14, 2020, respondent maintains that the action is untimely and that the petition must be dismissed.
Central to the issue of the timeliness of this action are the circumstances that have resulted in light of the COVID-19 pandemic emergency. (The Governor's Executive Order 202.8 declared a statewide emergency on March 7, 2020.) Petitioner maintains that insofar as the Board did not timely mail the NCN by March 23, 2020 (two days following his original filing) that his petition should have the 'presumption of validity' and that he is entitled to remain on the ballot. This raises the issue of the reasons for the Board's inaction on March 23, 2020. Respondent maintains that due to the state of emergency declared by the Governor, as well as the widespread illness of Board staff, its offices were greatly understaffed and thus unable to timely review petitioner's filed documents. Petitioner's counsel, Martin E. Connor, maintains that he too was affected by the emergency in that he was caused to close his Brooklyn law office as of March 28, 2020, and move to his upstate office for the health and safety of himself and his family. Mr. Connor further advised that court that as of the date of the hearing he had still not received the mail forwarded from his Brooklyn office. The Brooklyn law office address was the one given for petitioner's 'contact person.' Petitioner's counsel maintains that insofar as no notice was received before he closed his office, that he and petitioner were entitled to rely on the presumption of validity and that they had no reason to expect any further action by the Board.
Election Law 6-154 ; and see Biamonte v. Savinetti , 87 AD3d 950 (2011)
Respondent vigorously opposes petitioner's argument and maintains that the COVID-19 emergency excused its ability to perform on March 23, 2020. Rather, that when it did act, on March 31, 2020, its NCN was timely mailed and that it acted properly when eliminating petitioner from the ballot when there was no response within three days. Moreover, respondent maintains, that in response to an email request by petitioner's counsel on April 3, 2020, it immediately produced its ledgers for Queens County, which disclosed both the March 31, 2020 determination and April 1, 2020 NCN letter. Respondent argues that this email placed counsel on notice of the coversheet error and that counsel for petitioner failed to take timely action by April 6, 2020. Respondent maintains that the petitioner did not timely commence this proceeding, and that this court is now without jurisdiction to act pursuant to Election Law 16-102(2).
Initially, it is well-established that de minimums misspellings on a coversheet will not result in a candidate's elimination from the ballot absent a showing of intention of the candidate to mislead voters or a showing that the claimed inaccuracies did, or would tend, to mislead signatories as to the identity of the candidate. ( Harfmann v. Sachs , 138 AD2d 551 [1988] ; and see Yacubich v. Suffolk County Board of Elections , 307 AD3d 1015 [2018]; Mannarino v. Goodbee , 109 AD3d 685 [2013] ; Gardiner v. Mahoney, 123 AD2d 520 [1986].) The burden rests in this case upon respondent to demonstrate any intent on the part of petitioner to mislead or confuse voters or signatories. ( Abinati v. Duffy, 120 AD3d 669 [2014].) Moreover, a court, in reviewing actions that pertain to designating petitions, shall determine if there has been substantial compliance with requirements of the Election Law. ( Election Law 6-134[10], Hayon v. Greenfield , 109 AD3d 920 [2013] ; Pearse v. New York City Board of Elections in the City of New York , 10 AD3d 461 [2004].) It is also noted that at the hearing of this matter, the respondent offered no evidence, and made no showing, of any intent to defraud by petitioner.
Respondent maintains that this court without jurisdiction to even make such a determination insofar as untimely-filed action deprives the court of all jurisdiction pursuant to Election Law 16-102(2) ; Matter of Kurtz v. Orange County Board of Elections , 65 AD3d 642 [2009].) However, the issue of timeliness of petitioner's actions warrants further examination. It is well-established that an agency is bound to follow its own rules and that the court will overturn actions where agencies fail to comply. (Matter of Acme Bus Corp. v. Orange County, 28 NY3d 417 [2016] ; Frick Bahou , 56 NY2d 777 [1982].) This position is taken by the courts "not only to combat actual unfairness, but to uphold the public's perception that these agencies act fairly " (Matter of Acme Bus Corp. v. Orange County, supra. ) An agency's rules and regulations "promulgated pursuant to statutory authority are binding upon it as well as the individuals affected by that action." ( Lehman v. Board of Educ. of the City of NY , 82 AD2d 832 [1981].) It is uncontroverted that here, notwithstanding the circumstances related to the COVID-19 emergency, the Board did not follow its own procedures. It is well-settled that it is error to remove a candidate from the ballot where the Board did not follow its own rules. (Pearse v. Board of Elections in the City of New York , supra, Muhammed v. Board of Elections of the City of New York , 109 AD3d 424 [2013] ; Krance v. Chiaramonte , 87 AD3d 669 [2011].) The respondent now asks the court to overlook its failure to abide by the Election Law and its own Rules. While it is long established that the Supreme Court has no equity powers in election matters (Schieffelin v. Komfort , 212 NY2d 520 [1914]; Austin v. Delligati , 137 Misc 2d 530 [1987] ), that is, in effect, what the respondent is asking of this court.
Respondent maintains that not only was its office severely understaffed due to the COVID-19 emergency, but that Chapter 24 of the Rules of 2020, promulgated in response thereto, reduced its time to review petitions from four days to two. Nevertheless, it took the Board fully 8 business days later, until March 31, 2020, to review petitioner's submissions. Moreover, by letter from petitioner's counsel dated April 19, 2020, the Board was made aware of the effects of the emergency on petitioner and his counsel and reconsideration of the error on the coversheet was requested. This request was summarily denied at the hearings of April 23, 2020. While the court will not pass upon the question of the Board's discretion to review in and of itself (see , Meader v. Barash , 133 AD2d 925 [1987] ), it recognizes the fundamental fairness in considering that difficulties were posed to both sides due to the emergency.
Respondent relies heavily on the findings of the Brooklyn Supreme Court in Echevarria v. Board of Elections of the City of NY , (Walker, J. Supt Ct. Kings Co., Apr. 30, 2020), wherein it was determined that the tolling period promulgated in Executive Order 202.8 does not toll the provisions of Election Law 16-102(2). However, upon this court's analysis, it is not the timeliness of the commencement of this proceeding that applies, but rather, the failure of the Board to abide by its own regulatory and statutory duty by not timely reviewing the March 19, 2020 petition and coversheet. Pursuant to Election Law 6-134, petitioner was entitled to both a right to notice and to cure with regard to any defects. By its own terms, this provision is to be liberally construed. ( Election Law 6-134 [10].). The Election Law further provides that in the absence of the detection of a defect the Board, and due notification thereof, a petition shall have the presumption of validity. ( Election Law 6-154 ; Biamonte v. Savinetti , 87 AD2d 950, supra ; Acosta v. Previte , 51 AD2d 960 [1976].) In light of the failure of the board to so-timely notify the petitioner here, the court will afford him that presumption. In addition, the court finds the minor misspelling of the petitioner's name on the coversheet to nevertheless be in substantial compliance with the requirements of the Election Law. (Hayon v. Greenfield, supra; Pearse v. Board of Elections in the City of New York, supra. ).
Finally, it must be noted that elimination from the ballot is a harsh result. That is especially apt on these facts where the underlying defect is one well-recognized to be in all respects de minimus. (Yacubich v. Suffolk County Board of Elections, supra. ) In conclusion, this court concurs with the observation of the court in Acosta v. Previte (supra ) being that, "[T]he purpose of the [Election Law] in doubtful situations is to grant the electorate the discretion of determining the bona fides of candidates; elections should not be determined by the courts unless absolutely necessary."
Accordingly, the petition is granted, and it is,
ORDERED, ADJUDGED AND DECREED that the Designating Petition heretofore filed with the Respondent Board of Elections of the City of New York, designating Petitioner as candidate for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York in the Democratic Primary Election to be held on June 23, 2020, is decreed valid, proper, sufficient and legally effective; and it is further,
ORDERED ADJUDGED AND DECREED that Respondent Board of Elections of the City of New York is directed, required and commanded to print/place the name of Petitioner as candidate for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York on the ballots to be used for the Democratic Primary Election to be held on June 23, 2020; and it is further,
ORDERED ADJUDGED AND DECREED that Respondent Board of Elections of the City of New York is enjoined and restrained from printing, issuing, or distributing for use during the Democratic Primary Election to be held on June 23, 2020, and any and all official ballots used in the said Democratic Primary Election upon which the name of Petitioner does not appear as candidate for the Public Office of State Senator from the 12th Senate District, Queens County, State of New York.
This constitutes the Order and Judgment of the Court.