Opinion
101326/2015
08-11-2015
In the Matter of the Application of Daniel N. Clark, Petitioner-Aggrieved Candidate v. Landon C. Dais, Respondent-Candidate and BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent, for an order pursuant to Article 16 of the Election Law, to declare the invalidity of a designating petition
For Petitioner Arthur W. Greig Esq. 401 Broadway, New York, NY 10013 For Respondent-Candidate LaMon D. Bland Esq. 318 West 118th Street, New York, NY 10026
For Petitioner Arthur W. Greig Esq. 401 Broadway, New York, NY 10013 For Respondent-Candidate LaMon D. Bland Esq. 318 West 118th Street, New York, NY 10026 Lucy Billings, J.
In this proceeding to invalidate the designating petition of Landon C. Dais as a candidate for the Democratic Party's Male District Leader, 70th Assembly District, Part D, the court confirms the Referee's Report and Recommendation concluding that 58 pages of petition sheets subscribed by witness Franklin Aquino are valid despite the failure to list his county of residence accurately.
I. BACKGROUND FACTS AND CLAIMS
On each of the 58 petition sheets, the "STATEMENT OF WITNESS" section lists Aquino's address as "647 Mead St. No.2," handwritten, "New York, New York," printed on the petition sheet form, and the "Witness Identification Information" section lists "City of New York" under "Town or City" and "New York" under "County," both entries being printed on the petition sheet form. Ex. 3. Thus both sections reflect a failure to change the printed form to represent Aquino's true county of residence, Bronx County.
In the "STATEMENT OF WITNESS" section, the subscribing witness states his "Residence address," which for Aquino is 647 Mead Street #2, Bronx, New York. Id. Where the "New York, New York" is printed, however, nothing specifically indicates that the first "New York" designates the town or city, which for Aquino is New York, or the county, which for him is not New York, but Bronx County.
The "Witness Identification Information" section, in contrast, gives no indication that the "Town or City" and "County" printed there are the subscribing witness' residence. These listings might just as easily be understood as referring to where the petition signatures were witnessed, which was in New York County.
Petitioner concedes that there is no Mead Street in New York County and fails to show that there is any Mead Street in the City of New York other than the Mead Street in Bronx County where Aquino resides. Petitioner does not claim that Aquino, respondent candidate Dais, or anyone else purposefully listed Aquino's county of residence erroneously or that the error misled or confused petitioner or anyone else. A search for Mead Street in New York City yields Mead Street, Bronx County, and no other location.
Nor did the error implicate Aquino's eligibility as a subscribing witness. New York Election Law § 6-132(2) requires only that he reside in the state, McGuire v. Gamache, 5 NY3d 444, 446 (2005); La Brake v. Dukes, 96 NY2d 913, 914-15 (2001); Pisani v. Kane, 87 AD3d 650, 651 (2d Dep't 2011); Lerman v. Board of Elections in City of NY, 232 F.3d 135, 153 (2d Cir. 2000), and be enrolled as a voter of the Democratic Party. Dalton v. Wayne County Bd. of Elections, 65 AD3d 817, 818 (4th Dep't 2009); Powers v. Kozlowski, 54 AD3d 540, 541 (4th Dep't 2008).
II. THE ERROR'S CONSEQUENCES
At first blush, it may be difficult to distinguish the error on Dais's petition sheets from Frome v. Board of Elections of Nassau County, 57 NY2d 741, 742 (1982), except insofar as that proceeding involved omission of the city or town in the statement of a witness, "mandated content" and "a matter of substance and not of form," from the petition, which consequently was invalidated. Id. See NY Elec. Law § 6-132(2); Dalton v. Wayne County Bd. of Elections, 65 AD3d at 819. Omitting a subscribing witness' city or town of residence no doubt would prevent determination of his residence. Here, the accurate city of the witness was included, but an erroneous county was listed. The error, however, did not prevent determination of Aquino's residence.
In such circumstances, the Appellate Division's Departments almost uniformly have reconciled omissions as well as errors in the statement of the subscribing witness section and in the witness information section of petition sheets with Frome v. Board of Elections of Nassau County, 57 NY2d at 742, and validated the petitions. E.g., Hoare v. Davis, 207 AD2d 309, 309 (1st Dep't 1994); VanSavage v. Jones, 120 AD3d 887, 889 (3d Dep't 2014); Dalton v. Wayne County Bd. of Elections, 65 AD3d at 818-19. The Second Department validated a petition that omitted the town of residence of the candidate, rather than a subscribing witness, Gatto v. King, 218 AD2d 772, 772 (2d Dep't 1995), yet this information potentially affects a candidate's eligibility as a candidate. NY Elec. Law § 6-132(1). E.g., Jones v. Blake, 120 AD3d 415, 415 (1st Dep't 2014); Stavisky v. Koo, 54 AD3d 432, 433 (2d Dep't 2008). In contrast, an error or omission in the county of residence does not affect a subscribing witness' eligibility, as long as the witness resides in the state. NY Elec. Law § 6-132(2); McGuire v. Gamache, 5 NY3d at 446; La Brake v. Dukes, 96 NY2d at 914-15; Lerman v. Board of Elections in City of NY, 232 F.3d at 153. See Pisani v. Kane, 87 AD3d at 651.
The requirement that a subscribing witness disclose his current address, including that he resides in the state, assures that the witness is subject to a subpoena in a proceeding challenging the petition. Pisani v. Kane, 87 AD3d at 651-52.
The witness identification information on designating petitions is intended to allow for "the rapid and efficient verification of signatures within the restrictive time periods imposed by the Election Law" to facilitate the discovery of fraud . . . .VanSavage v. Jones, 120 AD3d at 889 (citations omitted). See Henry v. Trotto, 54 AD3d 424, 426 (2d Dep't 2008).
The evidence reveals no hindrance or delay in ascertaining Aquino's identity, enrollment as a voter of the Democratic Party, and residence or in verifying signatures on Dais's petition. VanSavage v. Jones, 120 AD3d at 889; Toporek v. Beckwith, 32 AD3d 684, 685 (4th Dep't 2006). See Pisani v. Kane, 87 AD3d at 652. Nothing suggests that Aquino was not readily available to verify any facts bearing on the validity of the petition's signatures or of the petition itself. See Pisani v. Kane, 87 AD3d at 651-52.
While here the 58 petition sheets that Aquino subscribed nowhere disclosed his county of residence, they disclosed enough information to discover that he resided in Bronx County. See VanSavage v. Jones, 120 AD3d at 889; Dalton v. Wayne County Bd. of Elections, 65 AD3d at 819; Powers v. Kozlowski, 54 AD3d at 541; Toporek v. Beckwith, 32 AD3d at 684. Moreover, since there was no attempt to conceal his residence or mislead anyone to believe that he resided in New York County, see Pisano v. Kane, 87 AD3d at 652; Henry v. Trotto, 54 AD3d at 427, once his residence in Bronx County was manifest, no fraud by Aquino, Dais, or anyone else was discovered. See VanSavage v. Jones, 120 AD3d at 889.
As demonstrated by the facts set forth above and in the Referee's Report, the error here was an inadvertence, devoid of any attempt to deceive or fraudulently mislead anyone, and devoid even of any actual misperception or confusion from the inadvertent error. Aquino's residence in Bronx County did not affect his eligibility as a subscribing witness. Dalton v. Wayne County Bd. of Elections, 65 AD3d at 819; Powers v. Kozlowski, 54 AD3d at 541. Particularly in view of the printed text on the petition sheets themselves, the error was a paradigmatic "matter of . . . form." Frome v. Board of Elections of Nassau County, 57 NY2d at 742.
In sum, the overriding absence of any indication of fraud, concealment, or even misperception or confusion renders the errors, even if considered omissions, in the statement of the witness or the witness identification information, inconsequential. Hoare v. Davis, 207 AD2d at 309; VanSavage v. Jones, 120 AD3d at 889; Dalton v. Wayne County Bd. of Elections, 65 AD3d at 819; Powers v. Kozlowski, 54 AD3d at 542. Where "the error was a clerical mistake," and "there was no attempt to deceive or other evidence of fraud," the error does not invalidate the signatures on the petition. Hoare v. Davis, 207 AD2d at 309.
III. CONCLUSION
For the reasons set forth above and in the thorough Report and Recommendation by Special Referee Feinberg, and after providing the appearing parties the opportunity to be heard regarding the Report and Recommendation, the court confirms the Special Referee's Report and orders and adjudges as follows. The court denies the petition to invalidate the designating petition of respondent Landon C. Dais as a candidate for the Democratic Party's Male District Leader, 70th Assembly District, Part D, City of New York, and declares respondent Dais's designating petition as a candidate for that position in the Democratic Primary Election September 10, 2015, valid. C.P.L.R. § 3001; NY Elec. Law § 6-132(2). Therefore respondent Board of Elections in the City of New York shall place respondent Dais's name as a candidate for that position on the ballots at the Primary Election September 10, 2015. The court otherwise dismisses this proceeding. DATED: August 11, 2015 _____________________________ LUCY BILLINGS, J.S.C.