Summary
In Ellman, the Court distinguished a hearing before the Board of Elections compared with one in court, finding that "while the administrative proceedings before the (Board of Elections] may frame the issues for determination at the court hearing and bear on the standing of the petitioners to sue, the court is not sitting in review of the manner in which the [Board of Elections] arrived at its administrative ruling"
Summary of this case from Carroll v. ThomasOpinion
Proceeding No. 1 - Index No. 902990-22, Proceeding No. 2 - Index No. 903419-22
05-10-2022
In the Matter of the Application of Barbara ELLMAN, and Peter Kermani, objectors aggrieved and Allison Esposito, candidate aggrieved, Petitioners, v. Michael J. GRACE, and New York State Board of Elections, and the Commissioners Thereof Constituting The Board, Respondents, For an Order Pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, Declaring Invalid the Designating Petitions Purporting to Designate the Respondent-Candidate in the 2022 Republican Party Primary Election, and to Restrain the said Board of Elections from Placing the Name of said Candidate Upon the Official Ballots of Said Primary Election. Michael Grace, Petitioner, v. Barbara Ellman and Peter Kermani, Respondent-Objectors, and New York State Board of Elections, Peter S. Kosinski and Douglas A. Kellner, Co-Chairs and Andrew J. Spano and Anthony Casale as Commissioners Constituting The New York State Board of Elections, Respondents.
Leventhal, Mullaney & Blinkoff, LLP, Peter Kermani and Allison Esposito, (John Ciampoli, of counsel), 15 Remsen Avenue, Roslyn, New York 11576, for Barbara Ellman and others, petitioners in the first above-entitled proceeding. Michael J. Grace, Esq., pro se, respondent in the first above-entitled proceeding and petitioner in the second above-entitled proceeding. Kevin G. Murphy, Deputy Counsel, New York State Board of Elections, 40 North Pearl Street, 5th Floor, Albany, New York 12207, for New York State Board of Elections, respondent in the first and second above-entitled proceedings.
Leventhal, Mullaney & Blinkoff, LLP, Peter Kermani and Allison Esposito, (John Ciampoli, of counsel), 15 Remsen Avenue, Roslyn, New York 11576, for Barbara Ellman and others, petitioners in the first above-entitled proceeding.
Michael J. Grace, Esq., pro se, respondent in the first above-entitled proceeding and petitioner in the second above-entitled proceeding.
Kevin G. Murphy, Deputy Counsel, New York State Board of Elections, 40 North Pearl Street, 5th Floor, Albany, New York 12207, for New York State Board of Elections, respondent in the first and second above-entitled proceedings.
Richard M. Platkin, J. In Proceeding No. 1, Barbara Ellman, Peter Kermani and Allison Esposito sue under Election Law § 16-102 (1) for an order invalidating petitions filed with the New York State Board of Elections ("SBOE" or "Board") purporting to designate Michael J. Grace as a candidate of the Republican Party for the office of Lieutenant Governor at the June 28, 2022 primary election.
In Proceeding No. 2, originally commenced in Supreme Court, Westchester County, Michael Grace sues under Election Law § 16-102 (1) for an order declaring his designating petitions to be valid.
BACKGROUND
On or about April 7, 2022, petitions were filed with the SBOE purporting to designate Michael J. Grace as a candidate of the Republican Party for the office of Lieutenant Governor at the upcoming primary election.
Under Election Law § 6-136 (1), designating petitions for the statewide office of Lieutenant Governor "must be signed by not less than fifteen thousand ... of the then enrolled voters of the party in the state ..., of whom not less than one hundred ... voters shall reside in each of one-half of the congressional districts of the state."
Voter-objectors Barbara Ellman and Peter Kermani ("Objectors") timely filed general and specific objections to Grace's designating petitions with the SBOE, and a hearing before the Board was scheduled for April 29, 2022.
Meanwhile, on April 20, 2022, the Objectors, together with Allison Esposito, suing as a candidate aggrieved, commenced a proceeding in this Court to invalidate Grace's designating petitions ("Invalidation Proceeding") (see Proceeding No. 1, NYSCEF Doc Nos. 1-4). On the same day, Grace preemptively commenced a validation proceeding in Westchester County ("Validation Proceeding") (see Proceeding No. 2, NYSCEF Doc Nos. 1-4).
By stipulated order dated April 26, 2022 (Torrent, J.), the Validation Proceeding was transferred to Albany County and "consolidated ... for all purposes" with the Invalidation Proceeding (Proceeding No. 2, NYSCEF Doc No. 13 ["Transfer Order"], ¶ 2).
This Court subsequently amended the transfer order to direct a joint trial, rather than full consolidation, of the two proceedings (see Proceeding No. 1, NYSCEF Doc No. 12).
The Invalidation Proceeding originally was returnable on April 28, 2022 (see Proceeding No. 1, NYSCEF Doc No. 4), and the Transfer Order put the Validation Proceeding on the same schedule (see Transfer Order, ¶¶ 3-4). However, the parties requested, and the Court granted, an adjournment of both proceedings to the afternoon of May 2, 2022, thereby allowing the SBOE to issue its ruling prior to the court hearing.
On May 2, 2022, the Commissioners of the SBOE ruled that Grace did not qualify for ballot access. The SBOE determined that Grace had submitted 14,829 valid signatures, which was 171 short of the 15,000 required for statewide office.
At a virtual court hearing held after the SBOE meeting, the following schedule was established with the consent of the parties: (1) the SBOE would provide the Court and parties with electronic copies of the pertinent election records, including SBOE staff worksheets and summary reports, as soon as possible; (2) Grace would have until May 3, 2022 to amend his verified petition in the Validation Proceeding to specify the particular Board determinations that he was contesting; (3) the petitioners in the Invalidation Proceeding ("Invalidation Petitioners") would, within the same timeframe, particularize any objections to Grace's petitions beyond those set forth in the Specific Objections; and (4) an in-person hearing in both proceedings was scheduled for the morning of May 5, 2022 in the Albany County Courthouse.
Later the same day, the Invalidation Petitioners filed an "Affirmation/Bill of Particulars & Additional Specifications," which was a sworn particularization of their additional objections to Grace's designating petitions (see Proceeding No. 1, NYSCEF Doc Nos. 10-11 ["New Objections"]). They also filed an amended pleading that corrected a mistaken reference to Lee Zeldin as the Republican candidate for Lieutenant Governor, rather than Allison Esposito (see Proceeding No. 1, NYSCEF Doc No. 1 ["Initial Invalidation Petition"], ¶ 2; Proceeding No. 1, NYSCEF Doc No. 9 ["Amended Invalidation Petition"], ¶¶ 2, 39-41).
Grace filed a Supplemental Verified Petition in the Validation Proceeding on May 3, 2022, specifying the particular SBOE determinations that he was contesting (see Proceeding No. 2, NYSCEF Doc No. 15 ["Supplemental Validation Petition"]). However, respondents in the Validation Proceeding ("Validation Respondents") rejected and returned the Supplemental Validation Petition to Grace because it was not verified (see Proceeding No. 2, NYSCEF Doc Nos. 17-18).
On May 4, 2022, Grace filed two verified answers in the Invalidation Proceeding, one directed at the Initial Invalidation Petition (see Proceeding No. 2, NYSCEF Doc No. 20), and another directed at the Amended Invalidation Petition (see Proceeding No. 2, NYSCEF Doc No. 21). As objections in point of law and affirmative defenses, Grace alleged, among other things, that: (i) Allison Esposito cannot sue as a "candidate aggrieved" because the Initial Invalidation Petition mistakenly refers to "Zeldin" as the candidate for Lieutenant Governor; (ii) the Initial Invalidation Petition did not put Grace on notice of the New Objections; and (iii) the Amended Invalidation Petition improperly attempts to join Allison Esposito as a party (id.).
The Invalidation Petitioners rejected Grace's answers on the ground that his verification, which took the form of an attorney affirmation, was not proper under CPLR 2106 (see Proceeding No. 2, NYSCEF Doc Nos. 23-25).
Both proceedings came on to be heard in the morning of May 5, 2022. The Court heard argument on many of the issues raised in the parties’ written submissions, including: (1) the role of the Court in reviewing the administrative actions of the SBOE in a special proceeding brought under Election Law § 16-102 ; (2) the consequences of Grace's failure to properly verify his pleadings; (3) Grace's claim that the SBOE miscounted the number of the valid signatures on his designating petitions; (4) Grace's claim that the SBOE improperly rejected signatures of voters who provided their correct residence address but omitted their correct town/city; (5) Grace's claim that the SBOE improperly rejected petition sheets where the town/city or county information for the subscribing witnesses was missing or incorrect; (6) Grace's contention that the SBOE mistakenly found certain of his petition sheets to be altered; (7) the Invalidation Petitioners’ claim that they should be permitted to challenge signatures beyond those raised in the Specific Objections; and (8) the Invalidation Petitioners’ claim that at least 603 additional signatures collected by Grace, which were not objected to before the SBOE, are invalid.
Through this colloquy, it became clear that Grace's challenge would hinge on the Court's rulings on four discrete legal issues that were threshold in nature or implicated a large number of signatures: (1) whether Grace's failure to verify his Supplemental Validation Petition compels the dismissal of the Validation Proceeding; (2) whether the Invalidation Petitioners are entitled to go beyond their Specific Objections and raise the New Objections; (3) whether the signatures of voters who entered their correct post-office address should have been invalidated for failing to provide accurate town/city information; and (4) whether petition sheets should have been invalidated where the town/city or county information for the subscribing witnesses is missing or incorrect.
Accordingly, the parties stipulated and agreed on the record that the Court would decide these four legal issues on the basis of legal memoranda to be submitted by each side. The parties further agreed that if the Court (i) did not dismiss the Validation Proceeding based on the alleged pleading deficiencies, (ii) permitted the Invalidation Petitioners to raise the New Objections and (iii) rejected Grace's arguments regarding the locality information of signers and subscribing witnesses, then Grace's remaining allegations in his Supplemental Validation Petition would be deemed withdrawn. The parties further agreed to the simultaneous submission of legal memoranda. Given the need for an expeditious determination of these Election Law proceedings, the Court set a firm deadline of noon on May 9, 2022 for submissions, and stated its intention to issue a written decision the following day. The Invalidation Petitioners/Validation Respondents provided their submissions shortly before the deadline (see Proceeding No. 1, NYSCEF Doc Nos. 16-17; Proceeding No. 2, NYSCEF Doc Nos. 27-28), but the Court did not receive anything from Grace on May 9, 2022.
The Court also permitted Grace to brief his contentions regarding the proper role of the Court in a proceeding under Election Law § 16-102.
On the morning of May 10, 2022, counsel for the Objectors/Allison Esposito emailed the Court to confirm that Grace had not filed a post-hearing memorandum. A brief teleconference ensued at which Grace insisted that he filed his papers prior to the deadline of noon on May 9, 2022. However, the NYSCEF dockets do not reflect any such filing, and Grace did not have confirmation notices from NYSCEF or any other evidence of filing.
While recognizing that Grace had prepared his written submissions by the prescribed deadline and made some attempt to file them, the Court expressed its view that the exigencies of the primary election calendar nonetheless required a decision to be issued in these proceedings by the end of the day on May 10, 2022. Accordingly, the Court advised the parties that it would endeavor to review Grace's post-hearing Brief of Issues within the limited time available. This expedited Decision, Order & Judgment follows.
Grace provided his papers to the Court via email. Accordingly, references to the "Brief of Issues" shall refer to the memorandum emailed to the Court by Grace at about 10:30 a.m. on May 10, 2022.
ANALYSIS
A. Grace's Unverified Pleadings
At the initial appearance on Monday, May 2, 2022, the Validation Respondents stated their intention to move to dismiss the Initial Validation Petition for failing to specify the particular SBOE determinations that Grace was challenging.
Given that the Validation Proceeding had been filed anticipatorily and the SBOE had ruled on Grace's petitions only an hour or two earlier, the Court believed that Grace should be given the opportunity to amend the Initial Validation Petition to reflect his specific disagreements with the SBOE's rulings. Accordingly, the Court granted Grace leave to serve an amended or supplemental verified petition by the end of the day on Tuesday, May 3, 2022. Grace did file and serve his Supplemental Validation Petition on May 3, 2022, but the Validation Respondents rejected the pleading because it was not verified.
As discussed in Part B, infra, the Court also granted leave to the Invalidation Petitioners to particularize the New Objections they sought to raise in their proceeding.
The Validation Respondents now seek the dismissal of the Validation Proceeding. They argue that the Initial Validation Petition did not give them notice of the specific rulings of the SBOE that Grace sought to challenge, and the Supplemental Validation Petition is a nullity due to its lack of verification.
"A validating petition must specify the individual determinations of a board of elections that the candidate claims were erroneous, including the signatures that the candidate claims were improperly invalidated" ( Matter of Jennings v. Board of Elections of City of NY, 32 A.D.3d 486, 486, 819 N.Y.S.2d 487 [2d Dept. 2006] [citations omitted], lvs denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006]). In other words, the validation petition must be "sufficiently particularized to give the Supreme Court and the parties notice of which determinations were claimed to be erroneous or which signatures the candidate claimed were improperly invalidated" ( id. at 486-487, 819 N.Y.S.2d 487 ).
It is apparent that the Initial Validation Petition, anticipatorily filed 12 days before the SBOE ruled on the Specific Objections, necessarily falls short of this pleading standard. The petition, prepared without the benefit of the Board's actual rulings, merely recites in conclusory fashion that any determination made by the SBOE adverse to Grace, "including, but not limited, to objections based upon identification of ‘town’ or ‘village’ or voter registration," would be "erroneous" (Initial Validation Petition, ¶ 18).
Accordingly, the Initial Validation Petition is subject to dismissal for insufficient particularization (see Matter of Lacorte v. Cytryn, 21 N.Y.3d 1022, 1023, 972 N.Y.S.2d 208, 995 N.E.2d 170 [2013] ; see also CPLR 3013 ; cf. Matter of Wagner v. Elasser, 194 A.D.3d 891, 893, 149 N.Y.S.3d 153 [2d Dept. 2021] [upholding sufficiency of validation petition where board of election's determination was annexed thereto and board ruled on only one issue], lv denied 36 N.Y.3d 913, 2021 WL 1974221 [2021] ).
As to Grace's supplemental petition, which was intended to remedy this lack of particularization, the Validation Respondents correctly observe that a "special proceeding under [ Election Law § 16-102 ] shall be heard upon a verified petition" ( Election Law § 16-116 [emphasis added]; see Matter of Goodman v. Hayduk, 45 N.Y.2d 804, 806, 409 N.Y.S.2d 7, 381 N.E.2d 165 [1978] ). This requirement is "jurisdictional in nature" ( Matter of O'Connell v. Ryan, 112 A.D.2d 1100, 1100, 493 N.Y.S.2d 230 [3d Dept. 1985], lv denied 65 N.Y.2d 607, 494 N.Y.S.2d 1031, 484 N.E.2d 139 [1985] ; see Matter of Rose v. Smith, 220 A.D.2d 922, 923, 633 N.Y.S.2d 218 [3d Dept. 1995] ; see also Proceeding No. 1, NYSCEF Doc No. 17). As such, Grace's unsworn Supplemental Verified Petition is not a valid petition or bill of particulars in a proceeding brought under Election Law § 16-102.
There is substantial appellate precedent holding that the failure to file a verified petition "cannot be cured by amendment" (O'Connell, 112 A.D.2d at 1100, 493 N.Y.S.2d 230 ; see Matter of DeMarco v. Monroe County Bd. of Elections, 176 A.D.3d 1645, 1645, 107 N.Y.S.3d 907 [4th Dept. 2019] ["although petitioner filed the verification the following day, that subsequent filing was insufficient to cure the jurisdictional defect"]; Matter of Polenz v. Marcantonio, 67 Misc. 3d 1207[A], 2020 NY Slip Op. 50447[U], *3-4, 2020 WL 1941984 [Sup. Ct., Suffolk County 2020] [collecting authorities]). Here, the Validation Respondents rejected the Supplemental Validation Petition at about 4:30 p.m. on May 4, 2022. While Grace made several other filings in the case later that day (see Proceeding No. 2, NYSCEF Doc Nos. 20-21), he did not attempt to remedy the lack of verification before the proceeding came on for hearing on May 5, 2022. Thus, the Court need not consider whether a cure would have been possible, given that Grace's statute of limitations had not yet expired (see Election Law § 16-102 [2] ).
The Court therefore concludes that the Initial Validation Petition must be dismissed because it fails to particularize the SBOE determinations that Grace claims to be erroneous, and the Supplemental Validation Petition fails to remedy this defect because it is unverified. B. New Objections
Notwithstanding the threshold dismissal of the Validation Proceeding, the Court will address certain of the contentions made by Grace therein to effectuate the stipulation made in open court on May 5, 2022 and facilitate any potential appellate review.
At the initial appearance on May 2, 2022, the Invalidation Petitioners stated their intention to raise objections beyond those set forth in the Specific Objections. The Court allowed the Invalidation Petitioners to particularize the additional challenges they sought to raise (see New Objections), without prejudice to Grace's right to argue against the Court entertaining the new challenges.
In his answer to the Initial Invalidation Petition, Grace asserts, as an affirmative defense and objection in point of law, that Allison Esposito is not entitled "to conduct a de novo consideration of the sufficiency of the [petitions] as the ‘candidate-aggrieved’ " because her pleading alleges the candidate "for the office of Lt. Governor ... to be Zeldin’ " (Proceeding No. 2, NYSCEF Doc No. 20, ¶ 5). And Grace's answer to the Amended Invalidation Petition alleges that the Invalidation Petitioners’ attempt to remedy this deficiency through an amended petition represents the untimely and improper joinder of Allison Esposito to the proceeding (see Proceeding No. 2, NYSCEF Doc No. 21, ¶¶ 5-8).
As an initial matter, the affirmative defenses and other contentions raised in Grace's answers are not properly before the Court. "A special proceeding pursuant to Election Law article 16 must be brought by a verified petition, which in turn demands a verified answer" ( Matter of Atwood v. Pridgen, 142 A.D.3d 1278, 1279, 37 N.Y.S.3d 164 [4th Dept. 2016] [citations omitted], lv denied 28 N.Y.3d 945, 38 N.Y.S.3d 513, 60 N.E.3d 408 [2016] ; see CPLR 3020 [a] ).
Grace is an admitted attorney, and his answer to the Amended Invalidation Petition includes a verification affirmed under penalties of perjury. However, CPLR 2106 (a) permits an attorney to use an affirmation only where he or she "is not a party to [the proceeding]." Thus, Grace's use of an affirmation is improper, thereby leaving his answers unverified (see Matter of Village of Herkimer Republican Party, 119 Misc. 2d 801, 806-807, 463 N.Y.S.2d 979 [Sup. Ct., Herkimer County 1983] ).
The Court is unconvinced by Grace's contention that "CPLR 2106 ... has absolutely nothing to do with the practice of verifying pleadings" (Brief of Issues, p. 8). CPLR 3020 calls for certain pleadings to be verified "under oath," and CPLR 2106 allows the affirmation of an "attorney[ ] who is not a party to an action, when subscribed and affirmed by him [or her] to be true under the penalties of perjury, [to] be served ... in lieu of and with the same force and effect as an affidavit."
In any event, Grace's challenges to the New Objections are without merit. Separate and apart from the Objectors’ claimed authority to go beyond their Specific Objections, the Court is satisfied that Allison Esposito is entitled to raise the New Objections as a candidate aggrieved. Allison Esposito has been a named party to the Invalidation Proceeding from the outset, expressly suing as a "candidate aggrieved" at all times (Initial Invalidation Petition, caption; accord Proceeding No. 1, NYSCEF Doc No. 4 [signed order to show cause]). The Initial Invalidation Petition further alleges that "Petitioner ALLISON ESPOSITO claims status as a candidate aggrieved who is entitled to a de novo proceeding before this Court" (id., ¶ 2). However, that same paragraph goes on to allege that "Petitioner Zelden [sic] was the designee of the Republican party for the public office of Lt. Governor of the State of New York" (id.), thereby giving rise to Grace's argument that Allison Esposito is not suing as an aggrieved candidate.
In this regard, the Objectors rely on language in the Initial Invalidation Petition putting Grace on notice of their claimed right to raise new objections (see Initial Invalidation Petition, ¶¶ 23-26), their bill of particulars identifying the New Objections, the election rules of other courts in the State contemplating such a procedure, and authority holding that "[a] court is not limited to the objections registered with the Board of Elections and has summary jurisdiction to determine any questions of law and fact, irrespective of whether the question was previously raised at the hearing before the Board" (50 NY Jur 2d Elections § 824, citing Matter of Flowers v. Wells, 57 A.D.2d 636, 636, 394 N.Y.S.2d 33 [2d Dept. 1977] ).
Even assuming that Allison Esposito conclusively is bound by this obvious scrivener's error, which plainly was the product of some sloppy cutting-and-pasting from a related proceeding (cf. CPLR 2001 ), the Court is satisfied that the Amended Invalidation Petition, served on May 2, 2022, fully remedies the defect.
The Amended Invalidation Petition, which was filed with leave of Court prior to the service of any pleading responsive to the Initial Invalidation Petition (see CPLR 3025 [a] ), corrected the scrivener's error to correctly allege that, "[a]t all relevant times Petitioner Esposito was the designee of the Republican party for the public office of Lt. Governor of the State of New York" (Amended Verified Petition, ¶ 2; see also id., ¶¶ 39-41).
Given the defective verification of his answers, Grace never served a proper responsive pleading in the Invalidation Proceeding.
And contrary to Grace's contention, this amendment does not constitute the joinder of a new party to the Invalidation Proceeding. Allison Esposito, not Lee Zeldin, was named as a petitioner to the Invalidation Proceeding, both in the Initial Invalidation Petition and in the Order to Show Cause bringing on the petition. The stray reference to Zeldin in the body of the Initial Invalidation Petition does not alter that conclusion or make Zeldin a party to the case. The Amended Invalidation Petition merely amends the factual allegations pleaded by Esposito to correct a scrivener's error concerning her standing to sue.
As such, the Court need not consider Grace's contentions as to why Esposito's joinder would be improper (see Brief of Issues, pp. 7-8).
In his post-hearing brief, Grace argues that the failure of Allison Esposito to affirmatively allege in the Initial Invalidation Petition that she is a candidate for Lieutenant Governor "is a jurisdictional defect" (Brief of Issues, p. 6). The Court disagrees. The issue goes to Esposito's standing, and lack of standing is an affirmative defense that must be raised in a pre-answer motion to dismiss or preserved in an answer (see Matter of Plainview-Old Bethpage Congress of Teachers v. New York State Health Ins. Plan, 140 A.D.3d 1329, 1330, 33 N.Y.S.3d 535 [3d Dept. 2016] [respondents "waived their argument that petitioners lack standing to maintain this combined action/proceeding, inasmuch as they failed to raise this affirmative defense in either a pre-answer motion to dismiss or their answer"], appeal dismissed 28 N.Y.3d 1168, 49 N.Y.S.3d 95, 71 N.E.3d 588 [2017], lv denied 29 N.Y.3d 910, 2017 WL 2435095 [2017] ; see also Matter of Klein v. Garfinkle, 12 A.D.3d 604, 605, 786 N.Y.S.2d 77 [2d Dept. 2004] [election matter]). Thus, by failing to serve a proper answer to the Initial Invalidation Petition or move against it for lack of standing, Grace waived any challenge to Esposito's standing.
As an aggrieved candidate, Esposito "was not required to file objections and specifications to the petition prior to commencing [the invalidation] proceeding" ( Matter of Magee v. Camp, 253 A.D.2d 573, 573, 677 N.Y.S.2d 192 [3d Dept. 1998] ).
Further, Grace was given adequate notice of the New Objections. In addition to the language of the Initial Invalidation Petition reserving to petitioners the right to go beyond their Specific Objections (see Initial Invalidation Petition, ¶¶ 23-26), the Invalidation Petitioners filed the New Objections, in the form of a bill of particulars, just after midnight on May 2, 2022, which left Grace "several days" to review them ( Matter of Lancaster v. Nicolas, 153 A.D.3d 829, 831, 60 N.Y.S.3d 391 [2d Dept. 2017] ).
In fact, the Invalidation Petitioners particularized their New Objections well before Grace amended his petition in the Validation Proceeding to specify his objections to the SBOE's rulings.
Additionally, the SBOE provided the parties with its analysis of the New Objections before the hearing of the Invalidation Proceeding.
At the Court's request, the SBOE reviewed the New Objections in advance of the hearing and determined that an additional 603 signatures claimed by Grace were invalid, mainly because the signers were not registered voters and/or registered Republicans (see Proceeding No. 1, NYSCEF Doc No. 14). The SBOE's staff worksheets, summary pages and registration cards for the non-enrolled voters were provided to the Court and the parties at about 7:30 p.m. on May 4, 2022 (see id.). And as the Invalidation Petitioners observe, Grace's failure to controvert their bill of particulars may be deemed an admission of the factual allegations made therein (see CPLR 3018 ).
Under the circumstances, the Court concludes that the New Objections are properly before the Court. C. Wrong City/Town of Signers
Grace contends that signatures should be reinstated where the signers entered their correct post-office address but failed to accurately identify the town/city in which they reside (see Supplemental Validation Petition, ¶¶ 22-151).
"The sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed" ( Election Law § 6-130 ). "Strict compliance with Election Law § 6-130 is mandated, as its requirements constitute ‘a matter of substance and not of form’ " ( Matter of Canary v. New York State Bd. of Elections, 131 A.D.3d 792, 793, 15 N.Y.S.3d 512 [3d Dept. 2015], quoting Matter of Stoppenbach v. Sweeney, 98 N.Y.2d 431, 433, 749 N.Y.S.2d 210, 778 N.E.2d 1040 [2002] ). Thus, where "a signer fails to accurately set forth his or her town or city on the face of the designating petition, invalidation of the signature will result" ( id. ).
In arguing against the invalidation of signatures lacking an accurate town/city, Grace emphasizes authorities sustaining the validity of signatures where, "under the particular circumstances of th[e] case," the signer's town/city can be discerned from the face of the petition ( Matter of Giordano v. Westchester County Bd. of Elections, 153 A.D.3d 821, 823, 60 N.Y.S.3d 394 [2d Dept. 2017], lv denied 29 N.Y.3d 915, 2017 WL 3723171 [2017] ). But Grace does not offer any method of identifying the correct town/city for the invalidated signatures from within the four corners of his statewide petitions. As such, the authorities relied upon by Grace are inapposite, and the signatures correctly were invalidated. D. Wrong City/Town/County of Subscribing Witness
Grace also asks the Court to rely upon the dissenting opinion in Stoppenbach (see Brief of Issues, p. 19), an invitation that the Court must decline.
Insofar as Grace seeks to raise new and unpleaded claims in his post-hearing brief concerning the constitutionality of the requirement that signers and subscribing witnesses provide their correct town/city on designating petitions (see Brief of Issues, pp. 14-16, 18-23), his arguments are not properly before the Court.
Grace argues that SBOE erroneously invalidated petition sheets where the statement of the subscribing witness did not accurately identify his or her town/city or county (see Supplemental Validation Petition, ¶¶ 153-177). According to Grace, these pages "should be reinstated under the holding of Barrett v. Brodsky, 196 A.D.[2d] 603 [602 N.Y.S.2d 397 (1993)]" (id., ¶ 152).
In ( Matter of Barrett v. Brodsky, 196 A.D.2d 603, 602 N.Y.S.2d 397 [2d Dept. 1993], lv denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303 [1993] ), the Second Department held that the failure of a subscribing witness to include town/city and county information was not a fatal defect if the correct information is "added beneath the witness's signature prior to filing the petition with the Board" ( id. at 603, 602 N.Y.S.2d 397 ). This holding is consistent with the plain language of Election Law § 6-132 (2), which provides that the town/city and county of the subscribing witness "must be completed prior to filing with the board of elections in order for th[e] petition sheet to be valid."
Contrary to Grace's apparent contention, his petition sheets were not rejected by the SBOE because someone other than the subscribing witness entered the correct town/city and county information on the sheets before they were filed. Rather, the SBOE rejected the petition sheets based on the lack of accurate town/city and county information for the subscribing witness. As such, Barrett is inapposite.
Grace further argues that missing or incorrect town/city or county information for a subscribing witness should not result in invalidation of the petition sheets. As quoted above, Election Law § 6-132 (2) requires town/city and county information for the subscribing witness to "be completed prior to filing with the board of elections in order for [the] petition sheet to be valid."
"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" ( Matter of VanSavage v. Jones, 120 A.D.3d 887, 889, 991 N.Y.S.2d 666 [3d Dept. 2014], lv dismissed 23 N.Y.3d 1045, 992 N.Y.S.2d 781, 16 N.E.3d 1260 [2014], lv denied 24 N.Y.3d 901, 2014 WL 4345668 [2014], quoting Matter of Zobel v. New York State Bd. of Elections, 254 A.D.2d 520, 522, 678 N.Y.S.2d 794 [3d Dept. 1998] ). Where these concerns are not implicated and "the complete residence address of the subscribing witness appears elsewhere on the same page of the petition, an error in providing the witness identification information has been held to be ‘an inconsequential violation’ and not a fatal defect" ( id., quoting Matter of Curley v. Zacek, 22 A.D.3d 954, 956, 803 N.Y.S.2d 221 [3d Dept. 2005], lv denied 5 N.Y.3d 714, 806 N.Y.S.2d 165, 840 N.E.2d 134 [2005] ; see Matter of Collins v. New York State Bd. of Elections, 120 A.D.3d 882, 883, 991 N.Y.S.2d 672 [3d Dept. 2014] ).
The SBOE invalidated petition sheets where the town/city or county of the subscribing witness was missing or incorrect, and Grace has not shown that the complete and correct residential address of these subscribing witnesses appeared elsewhere on the face of the petition sheet. As such, Grace has failed to demonstrate that the town/city and county of the subscribing witness was "completed prior to filing with the board of elections," as required "for [the] petition sheet to be valid" ( Election Law § 6-132 [2] ).
Grace did not attempt to remedy these defects by bringing his subscribing witnesses to Court (cf. Curley, 22 A.D.3d at 956, 803 N.Y.S.2d 221 ).
Under the circumstances, Grace has not demonstrated these petition sheets to be valid.
E. Proper Role of the Court
Finally, Grace argues that he should be permitted to use these Election Law proceedings as a vehicle to review the administrative process by which the SBOE determined his designating petitions to be insufficient. Grace complains of irregularities by the SBOE in the counting of signatures and review of his designating petitions, and, in that connection, unsuccessfully sought to subpoena the testimony of involved agency staff (see Proceeding No. 1, NYSCEF Doc No. 13, p. 2).
Grace argues that the failure of the SBOE to properly review his designating petitions—to which he ascribes improper motives—resulted in the erroneous conclusion that he lacked sufficient signatures. And this flawed determination is said to have unfairly left him in the position of having to pursue the Validation Proceeding, rather than the burden falling to the Objectors and Esposito to obtain a court order invalidating his petitions.
As stated at the hearing, a special proceeding under Election Law § 16-102 is a "de novo" proceeding in which the Court must independently determine whether the candidate qualifies for ballot access ( Matter of Salka v. Magee, 164 A.D.3d 1084, 1084, 83 N.Y.S.3d 720 [3d Dept. 2018], lv denied 31 N.Y.3d 914, 2018 WL 4102400 [2018] ; see Leroy v. New York City Bd. of Elections, 793 F. Supp. 2d 533, 540 [E.D. N.Y. 2011] [rejecting argument that Election Law § 16-102 "is a specialized judicial review proceeding akin to the administrative review ordinarily provided by an Article 78 proceeding. It is not.... [The statute] was drafted ... as an alternative route to ballot access determinations...."]).
Thus, while the administrative proceedings before the SBOE may frame the issues for determination at the court hearing and bear on the standing of the petitioners to sue, the Court is not sitting in review of the manner in which the SBOE arrived at its administrative ruling. And there is no authority for the Court to remand these proceedings to the SBOE for rehearing, reverse the SBOE's administrative ruling and somehow shift the burden to the Objectors and Esposito to sue for invalidation, or otherwise accord to Grace the equitable remedy that he seeks (see Brief of Issues, pp. 2-3, 11-15).
The only question before the Court in the Validation Proceeding is whether Grace has shown that he has a sufficient number of valid signatures to appear on the ballot as a candidate of the Republican Party for the office of Lieutenant Governor at the upcoming primary election. For the reasons stated above, the Court is constrained to answer this question in the negative.
The SBOE stands by its calculations and vigorously denies Grace's allegations of misconduct (see Proceeding No. 1, NYSCEF Doc No. 15). And as the Invalidation Petitioners observe, the variance alleged by Grace in this regard is insufficient to allow him to meet the 15,000-signature threshold, even if all of the claimed computational errors were resolved in Grace's favor (see Part B, supra).
CONCLUSION
Accordingly, it is
ORDERED that the Initial Validation Petition and Supplemental Validation Petition are dismissed in accordance with the foregoing; and it is further
ADJUDGED that the Validation Proceeding is dismissed in all respects; and finally it is
ORDERED that the Invalidation Proceeding is dismissed as academic.
This constitutes the Decision, Order & Judgment of the Court.