Opinion
Index No. 709277/2022
05-04-2022
In the Matter of the Application of Abraham FUCHS as designated for the public office of Member of the NYS Assembly from the 25th Assembly District Queens County, Petitioner, v. Mary Myungsun M. PARK, Objector-Respondent, and Commissioners of Elections of the Board of Elections in The City of New York Respondents for an order declaring valid the designating petition which designated the petitioner for the public office Member of the NYS Assembly from the 25th Assembly District, Queens County in the Democratic Primary Election to be held on June 28, 2022
Petitioner Fuchs: Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Street, Room 1812, Brooklyn, NY 11242, 718-237-0880 Respondent Park: Michael Reich and Francis Bolz, Esqs., Sweeney, Reich & Bolz LLP, 1981 Marcus Avenue, Suite 200 Lake Success, NY 11042, 718-459-9000
Petitioner Fuchs: Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Street, Room 1812, Brooklyn, NY 11242, 718-237-0880
Respondent Park: Michael Reich and Francis Bolz, Esqs., Sweeney, Reich & Bolz LLP, 1981 Marcus Avenue, Suite 200 Lake Success, NY 11042, 718-459-9000
Robert I. Caloras, J.
The following papers numbered E1-E12, on the motion of petitioner for an order declaring valid the designating petition which designated the petitioner for the public office Member of the NYS Assembly from the 25th Assembly District, Queens County, in the Democratic Primary Election to be held on June 28, 2022.
Papers Numbered
Order to Show Cause - Petition - Service E1-E11
Answer E12
Upon the forgoing papers is ordered and adjudged that the petition is denied, and the proceeding is dismissed.
This matter was heard at the call of the calendar on May 3, 2022.
Petitioner Abraham Fuchs (Fuchs) brings this proceeding pursuant to Election Law § 16-102 seeking an order declaring valid those signatures on his designating petition that were declared invalid by the Board of Elections in the City of New York (Board of Elections) at a hearing held on April 26, 2022.
At the virtual hearing held on this matter of May 3, 2022, this court was informed that this is not petitioner's first application for the instant relief. In a proceeding entitled Abraham Fuchs v Mary Myungsun M. Park , (Index No. 708492/2022), the Honorable Tracy Catapano-Fox issued a short form order and judgment, dated April 28, 2022, dismissing Fuchs' anticipatory application to validate the signatures on his designating petition on the ground of lack of personal jurisdiction over the respondents. On that same date, Justice Catapano-Fox issued an order in a related action: Mary Myungsun M. Park v Abraham Fuchs , (Index No. 708392/2022), wherein the objector-respondent in this action sought an order invalidating Fuchs' designating petition. In that order, Justice Catapano-Fox affirmed the ruling of the Board of Elections that invalidated Fuchs' designating petition. Fuchs took no further action with regard to either proceeding in that he did not move to reargue or seek to appeal either short form order and judgment.
Following the determination made by the Board of Elections on April 26, 2022, Fuchs filed the instant petition, this being a third action, which was assigned to this court. Respondents filed an answer to the instant petition asserting, inter alia , that this action is barred by principles of res judicata and collateral estoppel. It is well-established that "[u]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action, ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’ " ( Parker v Blauvelt Volunteer Fire Co. , 93 NY2d 343, 347 ). Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party whether or not the tribunals or causes of action are the same" (id. at 482; and see Strunk v New York State Bd. of Elections , 35 Misc 3d 1208[a] [Sup Ct, Kings County 2012][serial litigant barred from bringing future actions]).
In the prior matter of Park v Fuchs, Justice Catapano-Fox heard the parties at a virtual hearing, wherein Fuchs' counsel informed the Court that he did not possess certified records to oppose the petition to invalidate. Thus, Fuchs had a full and fair opportunity to litigate his claims. That he was unable to provide sufficient evidence to prevail in his claims, does not afford him another opportunity to present those claims (see Ryan v. New York Tel. Co., 62 NY2d 823 [1984]). At the hearing before this court, respondents maintained that the orders of Justice Catapano-Fox conclusively determined Fuchs' claims by affirming the determination of the Board of Elections. The burden then rests on a party opposing collateral estoppel to establish that he was deprived of the opportunity to litigate his claims in the prior proceeding (id. ). Here, Fuchs raised no such argument.
Closely related to these principles is the law of the case doctrine. "The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" ( Carbon Capital Mgt., LLC v American Exp. Co. , 88 AD3d 933, 935-936 [2nd Dept 2011] ). The purpose of the doctrine is to avoid the "unseemly conflict of decisions and protracted litigation" ( Post v Post , 141 AD2d 518, 519 [2nd Dept 1988] ). This doctrine clearly applies here, inasmuch as this court is called upon to essentially revisit two decisions made by another Supreme Court Justice. This court will not "arrogate to [itself]" that role ( id. at 519 ). While the three cases are not exactly identical, the parties are the same, and they would, in effect, be relitigating issues before this court that were already ruled upon by Justice Catapano-Fox.
Finally, insofar as the invalidating petition was granted, Fuchs no longer has standing to pursue his claims (see, Cipriano v Graves , 87 AD3d 636 [2nd Dept 2011] ; Cocca v Moreira-Brown , 230 AD2d 952 [3rd Dept 1996] ). Fuchs lost his standing after the determination by the Board of Elections, as well as by the judicial ruling invalidating his petition. As such, he is "no longer a candidate for the office in question" (see Cocca v Moreira-Brown , 230 AD2d at 953 ).
Moreover, given the severe time restraints inherent in election proceedings, allowing petitioner even more time to challenge the determination of the Board of Elections would be "wholly inconsistent" with the intent of the Election Law (see Robinson v Butler , 2021 WL 1564549 [Sup Ct, New York County [2021] ). The Court notes, despite those time restraints and the desire to reach the merits of a petition, there is no need to go beyond the above findings. As discussed, Fuchs had failed to present sufficient evidence during the hearing on the invalidating petition. Clearly, the same evidence would have been presented at the hearing on the validating petition, had it not been dismissed. The same signatures that were invalidated would have been those needed to be validated for Fuchs to prevail on his petition. The Court cannot fathom, nor has it been presented with any argument, that evidence disproving the invalidation of a signature would be different than evidence proving the validation of the same signature. As such, the merits of this validating petition have already been reviewed and denied.
Accordingly, it is
ORDERED AND ADJUDGED that the petition is denied, and the proceeding is dismissed.