Opinion
No. 15–2282.
07-30-2015
Shayne R. GALLO, Petitioner, v. Thomas F. TURCO and C. Victor Work, as Commissioners of the Ulster County Board of Elections and Ronald F. Polacco, Respondents.
Andrew P. Zweben, Esq., Kingston, attorney for petitioner. Christopher Burns, Esq., Kingston, attorney for respondent Ronald F. Polacco. Clinton G. Johnson, Esq., Kingston, attorney for respondent Ulster County Board of Elections.
Andrew P. Zweben, Esq., Kingston, attorney for petitioner.
Christopher Burns, Esq., Kingston, attorney for respondent Ronald F. Polacco.
Clinton G. Johnson, Esq., Kingston, attorney for respondent Ulster County Board of Elections.
MICHAEL H. MELKONIAN, J.
Petitioner Shayne R. Gallo ("petitioner") thereafter commenced this proceeding pursuant to Article 16 of the Election Law seeking, inter alia, the validation of his acceptance certificates of the designations naming him as the Conservative Party candidate and as the Independence Party candidate for the office of Mayor of the City of Kingston in the September 10, 2015 primary election.
Pursuant to Election Law § 1–106, "[a]ll 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" (emphasis supplied by the Court). In this case, the deadline for filing the acceptance certificates was July 13, 2015 (Election Law § 6–158[2] ). It is undisputed that petitioner's acceptance certificates were received by the Ulster County Board of Elections in envelopes postmarked by the United States Postal Service July 14, 2015. On July 21, 2015, the Ulster County Board of Elections rejected petitioner's acceptance certificates as untimely filed.
The Election Law specifically provides that the failure to file any petition or certificate relating to the designation or nomination of a candidate for party position or public office or to the acceptance or declination of such designation or nomination within the time prescribed by the Election Law is a "fatal defect" (see, Election Law § 1–106[2] ; Esiason v. Washington County Bd. of Elections, 220 A.D.2d 878 [3rd Dept.1995] ; Fintz v. Poveromo, 197 A.D.2d 944 [2nd Dept.1993] ; Baker v. Monahan, 42 N.Y.2d 1074 [1977] ; Hutchins v. Culver, 104 A.D.2d 533 [3rd Dept.1984] ; Sheehan v. Aylward, 84 A.D.2d 602 [3rd Dept.1981] ) and the judiciary is foreclosed from fashioning exceptions to this rule (see, Breitenstein v. Turco, 254 A.D.2d 566 [3rd Dept.1998] ; Biamonte v. Savinetti, 87 AD3d 950 [2nd Dept.2011] ; Hicks v. Egan, 166 A.D.2d 735 [2nd Dept.1990] ; Irvin v. Sachs, 129 A.D.2d 827 [2nd Dept.1987] ; Sheehan v. Aylward, 84 A.D.2d 602 [3rd Dept.1981] ; Bristol v. Chiavaroli, 54 A.D.2d 72 [4th Dept.1976] ).
Petitioner's argument that delivery, sans postmark prior to the deadline, conforms to the statutory requirements is not persuasive and the Court finds that his acceptance certificates were not timely "filed" within the meaning of Election Law § 1–106 (see, Election Law § 1–106[1] ; Matter of Thomas v. New York State Bd. of Elections, 44 AD3d 1155, 1156 [3rd Dept.2007] ; Matter of Montes—Amaya v. Suffolk County Bd. of Elections, 33 AD3d 946, 947 [2nd Dept.2006] ; Matter of Amo v. Orange County Bd. of Elections, 286 A.D.2d 454, 454 [2nd Dept.2001] ; Matter of Hogan v. Goodspeed, 196 A.D.2d 675, 676 [3rd Dept.1993] ; Matter of Persichetti v. Bollatto, 109 A.D.2d 811, 811 [2nd Dept.1985] ).The statute is specific, indeed, any distinction that petitioner attempts to draw between "mailing" and "filing" have been presented and rejected by appellate courts. Thus, if a petition is mailed on the final possible day, but is not postmarked until the next day, then it is untimely as a matter of law and must be rejected (see, Matter of Thomas v. New York State Bd. of Elections, 44 AD3d 1155, 1156 [3rd Dept.2007] ; Hogan v. Goodspeed, 196 A.D.2d 675 [3rd Dept.1993] ; Matter of Amo v. Orange County Bd. of Elections, 286 A.D.2d 454, 454 [2nd Dept.2001] ; Matter of Montes–Amaya v. Suffolk County Bd. of Elections, 33 AD3d 946, 947 [2nd Dept.2006] ).
According to his affidavit, at some point on July 13, 2015, Andrew P. Zweben, petitioner's attorney, deposited two envelopes containing petitioner's acceptance certificates in a post office box located at the corner of Cornell Street and Smith Avenue in Kingston, New York.
Furthermore, petitioner's suggestion that his late filing should be excused because he did not receive the blank acceptance certificates from the Ulster County Board of Elections until July 13, 2015 and July 14, 2015, despite that they were purportedly mailed on July 9, 2015, is also rejected by the Court inasmuch as it is the candidate's duty, not the Board of Elections, to ensure compliance with the Election Law (see, e.g., Matter of Carr v. New York State Bd. of Elections, 40 N.Y.2d 556, 558–559 ; Esiason v. Washington County Bd. of Elections, 220 A.D.2d 878 [3rd Dept.1995] ).
Petitioner's attempts to distinguish this case from the body of cases that clearly warrant dismissal of the underlying petition is of no merit. This case is not unique and fairness dictates that it should follow the same course of any other potential candidate that fails to reach an open United States Post Office facility.
Accordingly, the petition is dismissed and it is declared that petitioner's acceptance certificates were not timely filed with the Ulster County Board of Elections and therefore declared that said acceptance certificates are invalid, null and void and of no force and effect.The parties' remaining contentions have been considered and are either without merit or not necessary to resolve in light of the foregoing.
This Memorandum constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorney for the Ulster County Board of Elections. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of CPLR Rule 2220 respecting filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered:
Order to Show Cause dated July 22, 2015;
Petition dated July 21, 2015, with exhibits annexed;
Verified Answerdated July 24, 2015;
Affirmation of Christopher A. Burns, Esq., dated July 24, 2015;
Affirmation of Clinton G. Johnson, Esq., dated July 24, 2015;
Memorandum of Law dated July 29, 2015;
Affidavit of Jeanette Provenzano dated July 29, 2015;
Affidavit of Andrew Champ–Doran dated July 28, 2015, with exhibits annexed;
Affidavit of Brian Leche dated July 29, 2015, with exhibit annexed; and
Affidavit of Maryann Mills dated July 28, 2015, with exhibit annexed.