Opinion
10-13-2017
In the Matter of the Application of Dennis JACOBI, Petitioner, v. Linda M. MURRAY, Candidate for the Public Office of Justice of the Supreme Court 9th Judicial District, Dennis Zack, Permanent Chairman of the Independence Party Judicial Convention for the Ninth Judicial District, Susan McGuire, Permanent Secretary of the Independence Party Judicial Convention for the Ninth Judicial District, and The New York State Board of Elections, Peter Kosinski, Douglas A. Kellner, Andrew J. Spano and Gregory P. Peterson, Commissioners, Respondents.
James E. Long, Esq., Attorney for the Petitioner. Guy T. Parisi, Esq., Attorney for the Respondent Linda M. Murray. John Ciampoli, Esq., Attorney for the Respondents Dennis Zack and Susan McGuire.
James E. Long, Esq., Attorney for the Petitioner.
Guy T. Parisi, Esq., Attorney for the Respondent Linda M. Murray.
John Ciampoli, Esq., Attorney for the Respondents Dennis Zack and Susan McGuire.
PATRICK J. McGRATH, J. Respondent Linda M. Murray purportedly was nominated for the office of Justice of the Supreme Court for the Ninth Judicial District by the Independence Party of New York Judicial Nominating Convention for the Ninth Judicial District on September 24, 2017, which was thereafter, filed with respondent New York State Board of Elections. By service of an order to show cause dated October 2, 2017, petitioner-objector commenced the instant proceeding pursuant to Section 16–102 of the Election Law, seeking to invalidate the nomination and restraining the Board of Elections from printing and placing Linda Murray upon the Official Ballots of such General Election upon the ground that 1) a quorum of duly elected delegates was not present when Murray was nominated, and 2) that the number of delegates present did not provide for a correct and true proportionality to the votes for governor and the party rules. Respondent–Candidate as well as Respondents Dennis Zack and Susan McGuire seek an Order dismissing the proceeding pursuant to Election Law 16–116, as well as CPLR 3211(a)(2), (3), (7), (8), and (10). Respondent New York State Board of Elections Commissioner takes no position.
Petitioner has withdrawn the Third Cause of Action, which alleged that the Certificate of Nomination failed to contain the candidate's residence, pursuant to Election Law 6–156. The Court will therefore not consider respondent's motion in this regard.
Disqualification
Respondents Zack and McGuire move to disqualify counsel for the petitioner, stating that Mr. Long is a candidate for judicial office and has "inserted himself into a contested race for the public office of Supreme Court Justice." Respondents argue that "upon information and belief" activity against a candidate for another office is prohibited under "the code applicable to judicial candidates," and as such, counsel should be disqualified. When considering a motion to disqualify counsel, a trial court must "consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." Abselet v. Satra Realty, LLC, 85 A.D.3d 1406, 1407, 926 N.Y.S.2d 178 (3d Dept.2011)citing Parnes v. Parnes, 80 A.D.3d 948, 952, 915 N.Y.S.2d 345 (3d Dept.2011). Respondents have failed to allege any possible prejudice stemming from Mr. Long's representation of the petitioner, and as such, the motion to disqualify is denied.
Standing
Moving Respondents have alleged that petitioner lacks standing to bring the instant proceeding. CPLR 3211(a)(3). Specifically, that Petitioner was neither a delegate nor an alternate to the convention, and was not even present at the convention. As such, he was unable to make any objections to the procedures employed, and has not suffered an injury in fact.
"It is well-settled that the issue of standing concerns whether a party is a proper party to request the adjudication of a particular issue. When raised, it must be considered at the outset of the litigation as lack of standing is an impediment to bringing an action." Nicolai v. Kelleher, 21 Misc.3d 1140(A)citing Rudder v. Pataki, 246 A.D.2d 183, 185, 675 N.Y.S.2d 653 (3d Dept.1998) and Gilman v. Abagnale, 235 A.D.2d 989, 990, 653 N.Y.S.2d 176 (3d Dept.1997).
Pursuant to Election Law 16–102, a proceeding regarding the designation of a candidate for public office must be instituted in the Supreme Court by an aggrieved candidate or by a person who has filed general and specific objections in accordance with Election Law 6–154(2). Written objections may be filed "by any voter enrolled to vote for such party position." Election Law 6–154(2) ; see also
Lucariello v. Niebel, 72 N.Y.2d 927, 532 N.Y.S.2d 839, 529 N.E.2d 176 (1988). An objector must be a qualified voter and timely file objections and specifications as a citizen-objector. Doran v. Scranton, 49 A.D.2d 976, 374 N.Y.S.2d 358 (3d Dept.1975). In this case, the petition states that petitioner Dennis Jacobi resides in the 90th Assembly District in the Ninth Judicial District, and that he is a duly registered and enrolled member of the Independent Party of New York and eligible to vote in the general election on November 7, 2017 for the office of Supreme Court Justice for the Ninth Judicial District. Respondents do not dispute the timeliness of the objection or whether petitioner is a "qualified voter." Accordingly, petitioner has standing as an "objector."
Respondent's analogy to Nicolai v. Kelleher, 21 Misc.3d 1140(A), 2007 WL 5826072 (Sup.Ct., Albany County 2007) is misplaced, as that Court found that the delegates in that case "failed to allege any irregularity or fraud in the voting procedures undertaken by the convention," and as such, had failed to establish that they had suffered an injury in fact. The instant petitioner has alleged an irregularity in the voting procedure. Additionally, as noted by the Third Department in Matter of Nicolai v. Kelleher, 45 A.D.3d 960, 964, 844 N.Y.S.2d 504 (3d Dept.2007), there was no evidence that the delegates "filed objections to the certificate of nomination," which deprived them of standing to maintain the proceeding. There is no dispute that Petitioner in this case timely filed General Objections. Therefore, the motion to dismiss for lack of standing is denied.
Service
Respondents Zack and McGuire move to dismiss the petition as against respondent Zack, alleging that Zack was not served with the papers initiating these proceedings. Counsel for Zack and McGuire makes this allegation based upon information and belief, based upon his conversations with his client.
"In a proceeding pursuant to Election Law § 16–102, the method of service provided for in an Order to Show Cause is jurisdictional in nature and must be strictly complied with." Matter of Nunziato v. Messano, 87 A.D.3d 647, 647, 928 N.Y.S.2d 585 (2d Dept.2011) [internal quotation marks and citations omitted]; see Matter of Rue v. Hill, 287 A.D.2d 781, 782, 731 N.Y.S.2d 506 (3d Dept.2001), lv. denied 97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287 (2001).
The instant Order to Show Cause directed that Mr. Zack be served by mail on or before October 2, 2017 or by delivering the same by personal service on or before October 4, 2017 at 4:00pm. His address is listed as 255 Van Wyck Lake Road, Fishkill, N.Y. 12524. Counsel for the petitioner provides an affidavit of service indicating that he served the Order to Show Cause and Petition with Exhibits on Mr. Zack by Express Mail overnight delivery by bringing same to the U.S. Post Office main office at New Karner Road, Albany, New York 12212 on October 2, 2017 at 2:40pm, postage paid for delivery on October 3, 2017. Counsel also provides a copy of the mailing label.
The Court finds that the method of service utilized here was authorized in the order to show cause. Further, "a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service." Caci v. State of New York, 107 A.D.3d 1121, 1123, 967 N.Y.S.2d 440 (3d Dept.2013) [internal quotation marks and citations omitted]; accord Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 (3d Dept.2013), lv. dismissed 22 N.Y.3d 947, 977 N.Y.S.2d 175, 999 N.E.2d 538 ; see Kurlander v. Willie, 45 A.D.3d 1006, 1007, 845 N.Y.S.2d 180 (3d Dept.2007). A vague and unsupported denial of service is "insufficient to dispute the veracity or content of the [process] server's affidavit." Owens v. Freeman, 65 A.D.3d 731, 733, 884 N.Y.S.2d 791 (3d Dept.2009), lv. dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 93. In this case, the Mr. Zack has not provided his own affidavit denying service, much less a sufficiently detailed affidavit to trigger a traverse hearing. See TD Banknorth, N.A. v. Olsen, 112 A.D.3d 1169, 1170–71, 977 N.Y.S.2d 472 (3d Dept.2013). Accordingly, the motion to dismiss on these grounds is denied.
Verification
Next, the moving respondents argue that the Petition was not properly verified pursuant to the provisions of Election Law 16–116. The petition served herein is verified by petitioners' attorney pursuant to CPLR 3020[d][3], and states that "deponent has read the foregoing Petition and knows the contents thereof; that same is true to deponents [sic] knowledge, except the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true." Moving respondents argue that allegations 9, 10 and 12, which all concern whether a quorum was present at the Convention, are made upon personal belief of the petitioner, but there is no dispute that Mr. Long was not present at the convention. As such, respondents argue that the verification purports to attest to facts upon personal knowledge, under penalty of perjury, "that are outside even the possibility of personal knowledge of the deponent verifying the petition." Respondents argue that a defective verification is no verification, and that the requirements of the Election Law in this regard cannot be waived.
The Court notes that Paragraph 9 is split between personal knowledge and "information and belief", specifically, it is alleged that "[a]t said convention there failed to assemble a quorum of the duly elected delegates (28) to wit:15. Upon information and belief no more than 7 delegates assembled to conduct the business of the convention." (Emphasis added).
Election Law 16–116 provides, inter alia, that a proceeding brought pursuant to that article "shall be heard upon a verified petition and such oral or written proof as may be offered." Pursuant to CPLR § 3021, when a verification is made by a person other than the party, the person making the verification must state "the grounds of his belief as to all matters not stated upon his knowledge ..."
"Pursuant to CPLR 3022, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence returns the [pleading] with notification of the reason(s) for deeming the verification defective." Lepkowski v. State of New York, 1 N.Y.3d 201, 210, 770 N.Y.S.2d 696, 802 N.E.2d 1094 (2003) [internal quotation marks and citation omitted]. "Due diligence has been held to mean ‘within twenty-four hours.’ " O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d 684 (4th Dept.1976)citing Westchester Life v. Westchester Magazine Co., 85 N.Y.S.2d 34 (1948). "A party who waits longer before giving notice should be held to have waived the objection." Id. citing D. Siegel, Practice Commentaries in McKinney's Cons. Laws of NY, Book 7B, C3022:2, p. 396; see also Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542 (3d Dept.1983, mem) ; Air New York, Inc. v. Alphonse Hotel Corp., 86 A.D.2d 932, 448 N.Y.S.2d 795 (3d Dept.1982) ; Master v. Pohanka, 44 A.D.3d 1050, 845 N.Y.S.2d 376 (2d Dept.2007) ; Ladore v. Mayor and Board of trustees of the Village of Port Chester, 70 A.D.2d 603, 416 N.Y.S.2d 280 (2d Dept.1979). The failure to promptly notify an adversary that a pleading is being rejected is a waiver of any defect in the same's verification. Clark v. State of New York, 302 A.D.2d 942, 754 N.Y.S.2d 814 (4th Dept.2003).
Petitioner notes that at oral argument on October 11, 2017, the return date of the petition, counsel for respondent Linda M. Murray stated that he returned the petition based upon the defective verification. Mr. Long states that he has not received the rejected pleading back from respondent Linda M. Murray or her attorney. At the conference before the Court on October 11, 2017, counsel for Linda Murray served all parties and the Court with a motion to dismiss, which had attached Exhibit "A", which is a letter from Mr. Parisi to Mr. Long, rejecting the Petition on the grounds that it was defectively verified. The Court notes that the Order to Show Cause requires service by mail by October 2, 2017 or personal service by October 4, 2017. Respondent Murray has not indicated when she received the Petition, however, she has also not established that she objected within the 24 hour time frame. As such, her objections in this regard are waived.
Petitioner does not challenge the timeliness of Respondents Zack and McGuire's rejection of the pleadings, and therefore, the Court will address the issue on the merits.
As noted by the Court in Tenneriello v. Board of Elections, 104 A.D.2d 467, 468, 479 N.Y.S.2d 72 (2d Dept.1984), "verification by petitioners' attorney is permitted as he had an office in a county other than the one in which the petitioners reside ( CPLR 3020, subd [d], par 3). In his verification, the attorney attested to this fact and stated that all of the contents of the petition ‘are true to my own knowledge’ except as to matters alleged on information and belief. As to those matters which dealt solely with respondents-respondents' [sic] actions in filing objections with the Board of Elections, petitioners' attorney stated that he ‘[believed] them to be true.’ Such a verification complies with CPLR 3021."
The verification at issue also alleges that as to those matters alleged based on information and belief, Mr. Long "believes them to be true." Accordingly, under Tenneriello v. Board of Elections, supra, the verification complies with CPLR 3021.
Even if the verification does not comply with the specific mandates of CPLR 3021, the courts have disregarded insubstantial defects where the objecting party has failed to show prejudice. Capital Newspapers Div. Hearst Corp. v. Vanderbilt, 44 Misc.2d 542, 254 N.Y.S.2d 309 (Sup.Ct., Albany County Court 1964) was a labor dispute, and also concerned a statute ( Labor Law 807(2) ) which required verification. The Court considered a motion to dismiss upon the grounds that the complaint was defectively verified. The Court noted that the evidence established that the attorney who verified the complaint did not have actual knowledge of portions of the contents of the pleadings and failed to state them as being upon information and belief. The Court recognized that
"a strict and formal application would demand a dismissal of the complaint. In contemplating such a decision the court is also aware that it would only grant such a motion without prejudice to the plaintiff to plead again. Considering the entire matter, the labor dispute, the nature of the picketing activities and even the livelihood and well-being of both labor
and management, time appears to be of the essence for all parties concerned. Whereas decisions under the prior law demanded formal rather than substantial compliance in this regard, the present directive ( CPLR 3026 ) is that pleadings shall be liberally construed and that defects shall be ignored if a substantial right of a party is not prejudiced. It is significant to note that all of the allegations which the attorney asserted to knowledge of were borne out by the evidence. It would appear conclusively therefore that there will be no substantial prejudice to defendant if the defect is ignored."
CPLR 3026 was enacted to put teeth in the mandate that pleadings shall be liberally construed and the burden is expressly placed upon the one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced. Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121 (1st Dept.1964). The Third Department recently followed the mandate of CPLR 3026 in ignoring a defect in the verification of a pleading under the Election Law in Matter of Harder v. Kuhn, 153 A.D.3d 1119, 1120, 60 N.Y.S.3d 597 (3d Dept.2017) (in a proceeding pursuant to Election Law § 16–102, the Court rejected respondent's challenge to the verification, holding that the Court would ignore any defects in the verification absent any prejudice to respondents flowing from the purported defect, citing CPLR 3026 ).
The Court finds that respondents here have failed to allege that they have suffered any prejudice if the alleged defect here were also ignored pursuant to CPLR 3026. See also Gaffey v. Shah, 131 A.D.3d 1006, 17 N.Y.S.3d 46 (2d Dept.2015) (as the plaintiffs suffered no prejudice, the complained-of defect was properly "ignored" by the Supreme Court).
Failure to State a Cause of Action
Respondents Zack and McGuire argue that the Petition fails to state a cause of action upon which relief can be granted as the Order to Show Cause initiating this proceeding seeks an order declaring the "Certificate of Designation of Linda M. Murray." Respondents note that Designations are made for Primary Election not a General Election, and therefore, the Court cannot grant the relief requested. "Courts considering a motion to dismiss a complaint for failure to state a cause of action must liberally construe the pleadings, accept the facts alleged in the complaint as true, give plaintiffs the benefit of every possible favorable inference, and determine whether the alleged facts fit within any cognizable legal theory." ARB Upstate Communications LLC v. R.J. Reuter, L.L.C., 93 A.D.3d 929, 930, 940 N.Y.S.2d 679 (3d Dept.2012) [citation omitted]; see ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227, 928 N.Y.S.2d 647, 952 N.E.2d 463 (2011). In this case, while the Order to Show Cause contains the term "Certificate of Designation", the pleading (in this case, the Petition) alleges that Linda M. Murray is "named in a Certificate of Nomination." See Petition, Paragraph 3. In the "Wherefore" clause, the Petition requests that the Court declare the Certificate of Nomination invalid. The Court finds that the Petition alleges facts that fit within a cognizable legal theory, and the motion to dismiss on these grounds is denied.
Respondents Zack and McGuire argue that the Petition fails to state a cause of action upon which relief can be granted because Paragraph 7 of the Petition alleges that the "the convention was duly convened." (Emphasis added). Respondents note that according to Election Law Sections 6–124 and 126, the convention could only be "duly convened" with a majority of the delegates present. Additionally, respondents note that the motion to dispense with the roll call and find a quorum present is contained in the minutes, which indicate unanimous adoption thereof. Respondents argue that the minutes are entitled to a presumption of regularity. Reda v. Mehile, 197 A.D.2d 723, 724, 603 N.Y.S.2d 166 (2d Dept.1993)citing Richardson Evidence, § 72 [Prince, 10th ed.] ).
As noted above, the Court's function of a motion to dismiss for failure to state a cause of action is to liberally construe the pleadings, accept the facts alleged in the complaint as true, give plaintiffs the benefit of every possible favorable inference, and determine whether the alleged facts fit within any cognizable legal theory. In addition to Paragraph 7, the Court must also accept as true the allegations contained in paragraphs 8, 9, 10, 11 and 12, which in sum and substance allege that in order to form a quorum in accordance with the Rules of the Independence Party of New York the Party Call and the Roll Call of elected delegates, the convention needed at least 15 delegates, but only 7 assembled, which does not constitute a quorum. Giving petitioner the benefit of every possible favorable inference, the Court finds that the Petition states a cause of action.
Necessary Parties
Respondents argue that the petitioner's failure to name The Independence Party (the State Committee Independence Party of the State of New York), the Executive Committee of the State Independence Party, the Chairman of the State Independence Party, and "any relevant committees" of the State Independence Party) as necessary parties requires dismissal. Respondents argue that the Petition directly challenges the actions of the Independence Party in constituting the Judicial Convention and allocating the delegates therefor. Respondents characterize the challenge in the Petition as one against the actions "taken in the name" of the Independence Party by convention delegates, as well as the "internal regulation and methodology of the convention." Respondents note that the number and allocation of delegates is done by the State Party and its Executive Committee is embodied in the "Party Call" signed and filed by the State Party Chairman. The Convention is constituted according to the State Party Rules, adopted by the State Committee and administered by the Officers of the State Independence Party. All rules of procedure are adopted by the State Committee. All relevant certificates authenticating the Party Rules, procedures and Party Call are executed by the State Chairman and Secretary, and filed with the State Board of Elections.
Necessary parties are those "who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." CPLR 1001(a). The Petitioner here, however, challenges none of the aforementioned regulations, methodologies, allocations, procedures, etc. The Petition does not challenge the authority and/or jurisdiction of the State Party to enact these rules or procedures, and in fact, relies upon the State Party sanctioned rules and procedures as the basis of the arguments that the delegates at the Convention failed to follow these rules. Respondents' reliance on Nicolai v. Kelleher, 21 Misc.3d 1140(A), 2007 WL 5826072 (Sup.Ct., Albany County, 2007) is misplaced. In that case, the challenge was based upon "the actions taken by the Conservative Party to constitute the convention, as well as the actions taken at the convention by the delegates." In this case, there is no challenge to any actions taken by the Independence Party of New York to constitute the convention. Paragraph 8 of the Petition specifically alleges that "[a]ccording to the Party Call and the Roll Call of elected delegates, it establishes that 28 delegates were duly elected to the judicial convention for the 9th JD." Petitioner raises no challenge to any action taken by the State Committee Independence Party of the State of New York, the Executive Committee of the State Independence Party, the Chairman of the State Independence Party, and/or any relevant committees of the State Independence Party.
The only challenge brought forth here is to the conduct of the delegates at the Convention in failing to assemble a quorum and in failing to provide for a correct and true proportionality to the votes for governor, in accordance with party rules. In Michaels v. New York State Bd. of Elections, 154 A.D.2d 873, 546 N.Y.S.2d 736 (3d Dept.1989), petitioners requested that the certificate of nomination of the Conservative Party be declared null and void. Respondents moved to dismiss the petition for failure to join the Conservative Party or its political subdivision, however, the Court held that the requested relief could be "granted completely without joining the Conservative Party and/or any subdivision, and without said party being inequitably affected by such a judgment. Petitioners' challenge is to the conduct of the convention so that direct participation of the Conservative Party as such is not essential ( CPLR 1001[a] )." (Emphasis added). Id.; see Seaman v. Bird, 176 A.D.2d 1061, 1062, 575 N.Y.S.2d 207 (3d Dept.1991) ("the invalidation of respondent's Conservative Party nomination can be achieved completely without joining either [the Conservative Party Chairman] or the Conservative Party, and without said party being inequitably affected by the judgment."); O'Brien v. Seneca County Bd. of Elections, 22 A.D.3d 1036, 803 N.Y.S.2d 830 (4th Dept.2005) (trial court erred in dismissing the petition for failure to join the chairperson of the political party committee for a town as a necessary party. The petition sought to remove the candidate from the ballot. As a result, the relief sought could have been granted without joining or inequitably affecting the party or chairperson). The above cases can be compared with other case law where the petitioner directly challenged the actions of a party it failed to name, i.e., Matter of Morgan v. de Blasio, 29 N.Y.3d 559, 60 N.Y.S.3d 106, 82 N.E.3d 447 (2017) (petitioners asserted that the Executive Board of the Working Families Party's certificate of authorization was invalid under Election Law § 6–120, the Executive Board was a necessary party) and Fusco v. Spano, 275 A.D.2d 427, 713 N.Y.S.2d 126 (2d Dept.2000) (as petition challenged the actions and authority of the Interim County Organization/ Steering Committee of the Westchester Independence County Committee, this party was necessary to the proceeding).
Accordingly, the motion to dismiss in this regard is denied.
Mootness/Impossibility
Respondents Zack and Maguire note that the local boards of Elections have already printed and distributed ballots to Military Voters and the Permanently Disabled voters for the General Election, which respondents claim renders the matter moot. Respondents also argue that the petitioner's efforts would result in the disenfranchisement of any voter in these groups who chose to vote for Respondent Murray on the Independence Party line. Respondents note that the local Boards are already printing and preparing the ballots and voting machines, and that if petitioner is successful, ballots would have to be re-printed and the voting machines would have to be re-programmed. Respondents argue that the Court "is pressing against the wall of impossibility."
Petitioner argues that if the party line is voided, Linda Murray appears on the Republican line and other lines where the Independence Party voters can cast their ballot for this candidate.
Respondent cites Matter of Hunter v. Orange County Bd. of Elections, 11 N.Y.3d 813, 815, 868 N.Y.S.2d 588, 897 N.E.2d 1071 (2008) and Matter of Pidot v. Macedo, 141 A.D.3d 680, 36 N.Y.S.3d 188 (2d Dept.2016) for the proposition that petitions for relief under the Election Law properly should be dismissed where, if the Court were to entertain the merits of the petition, it would be impossible to render meaningful relief in compliance with the Election Law. See Matter of Semple v. Laine, 121 A.D.3d 798, 994 N.Y.S.2d 542 (2d Dept.2014) ; Matter of King v. Board of Elections in City of NY, 65 A.D.3d 1060, 884 N.Y.S.2d 889 (2d Dept.2009). In this case, the election is approximately 25 days away. Mr. Long indicated that there would not be a need to add a name to the ballot, but rather, to cross out Respondent Murray's name from the ballot on this line. While potentially time consuming and difficult, the Court does not find the task impossible. Accordingly, the motion to dismiss on those grounds is denied.
In accordance with the foregoing, it is hereby
ORDERED that motion by respondent Linda M. Murray to dismiss the petition is, in all respects, DENIED; and it is further
ORDERED that the motion by respondents Dennis Zack and Susan McGuire to dismiss the petition is, in all respects, DENIED; and it is further
ORDERED that all parties, their attorneys and any necessary witnesses are directed to appear at the Rensselaer County Courthouse at 80 Second Street, Troy, New York 12180 on Tuesday, November 17, 2017 at 10:00am in order for the Court to take oral testimony.
This constitutes the Decision and Order of the Court. This Decision and Order is being returned to the attorneys for the petitioner. Copies will be sent to respondents via email based on the expediency of the matter. All original supporting documentation has been previously filed with the Albany County Clerk's Office. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Petitioner is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.