Opinion
2023–08585 Index No. 33825/23
10-11-2023
In the MATTER OF Mona MONTAL, etc., et al., petitioners-respondents, Town of Ramapo, intervenor-petitioner-respondent, v. Michael A. Koplen, et al., appellants, et al., respondent.
DECISION & ORDER In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a certificate of nomination naming Michael A. Koplen as the candidate of the Republican Party for the public office of Town Justice of the Town of Ramapo in a general election to be held on November 7, 2023, Michael A. Koplen, Marino F. Fontana, and Linda France appeal from a final order of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated September 14, 2023. The final order, after a hearing, denied the motion of Michael A. Koplen, Marino F. Fontana, and Linda France to dismiss the petition, granted the petition and the petition of the intervenor-petitioner, and prohibited the Rockland County Board of Elections from placing Michael A. Koplen's name on the ballot for the general election to be held on November 7, 2023, as the candidate of the Republican Party for the public office of Town Justice of the Town of Ramapo.
ORDERED that the final order is affirmed, without costs or disbursements.
On June 22, 2023, before the end of his four-year term of office, David Fried, one of the three Town Justices of the Town of Ramapo, tendered his resignation. After accepting Fried's resignation, by resolution dated July 24, 2023, the Town Board abolished one of the three Town Justice offices. Accordingly, the Town did not file a certificate of vacancy with the Rockland County Board of Elections (hereinafter the BOE) for the office of Town Justice vacated by Fried. Although no certificate of vacancy for the office of Town Justice had been filed with the BOE pursuant to Election Law § 4–106(4), on July 27, 2023, members of the Executive Committee of the Ramapo Republican Committee filed with the BOE a certificate of nomination naming Michael A. Koplen as the candidate of the Republican Party for the public office of Town Justice in a general election to be held on November 7, 2023.
The petitioners commenced this proceeding by order to show cause pursuant to Election Law § 16–102, inter alia, to invalidate the certificate of nomination naming Koplen as a candidate for the office of Town Justice. They asserted, among other things, that there is no general election for the office of Town Justice to be held on November 7, 2023, as the Town had abolished the office vacated by Fried, and that the Executive Committee of the Ramapo Republican Committee had not complied with its own rules. The petition also sought to prohibit the BOE from placing Koplen's name on the general election ballot as a candidate for the office of Town Justice.
On August 8, 2023, Koplen filed a notice of appearance stating that he was representing himself in the proceeding. On August 10, 2023, Koplen filed an affirmation in opposition to the petition in which he disputed the merits of the petitioners’ claims and argued that the BOE was not properly served with the order to show cause. However, he did not raise any contentions with respect to service of the papers upon himself. On August 11, 2023, the parties appeared before the Supreme Court. After all the parties stated that they had no objection to the application, the court granted the Town's application for leave to intervene in the proceeding.
On August 17, 2023, Koplen, Marino F. Fontana, and Linda France (hereinafter collectively the Koplen respondents) moved to dismiss the petition on the ground, among other things, that the petitioners failed to personally serve the BOE as directed in the order to show cause. They also argued that Koplen had not been served as directed in the order to show cause.
On August 23, 2023, the Town filed a petition, inter alia, to invalidate Koplen's certificate of nomination, arguing that the office for which he was purportedly nominated had been abolished and that the Town Clerk did not file a certificate with the BOE authorizing the placement of the office on the general election ballot pursuant to Election Law § 4–106. The Town also sought to prohibit the BOE from placing Koplen's name on the general election ballot as a candidate for the office of Town Justice. On September 7, 2023, the Supreme Court conducted a hearing to determine the validity of service of process upon the BOE.
In a final order dated September 14, 2023, the Supreme Court denied the Koplen respondents’ motion to dismiss, granted the initial petition and the Town's petition, and prohibited the BOE from placing Koplen's name on the general election ballot as a candidate for the office of Town Justice. The Koplen respondents appeal.
The Supreme Court correctly determined that Koplen waived any challenge to service given that he actively participated in the litigation by formally appearing, addressing the merits of the petition, and raising objections about service upon another party before raising an issue about service upon himself (see Matter of Sasson v. Board of Elections in City of N.Y., 65 A.D.3d 995, 996, 884 N.Y.S.2d 333 ; Matter of Gregory v. Board of Elections of City of N.Y., 93 A.D.2d 894, 895, 461 N.Y.S.2d 430, affd 59 N.Y.2d 668, 463 N.Y.S.2d 411, 450 N.E.2d 217 ). We note that, as per an affirmation of service, relevant papers were served upon Koplen by email after Koplen, an attorney, consented to service by email.
The Supreme Court also correctly determined that it acquired jurisdiction over the BOE. The court, after a hearing to determine the validity of service of process, found that the testimony of two process servers was consistent and credible. " ‘The Supreme Court's credibility determinations following a hearing are entitled to substantial deference on appeal’ " ( Citimortgage, Inc. v. Feder, 186 A.D.3d 1315, 1315, 128 N.Y.S.3d 905, quoting Teitelbaum v. North Shore–Long Is. Jewish Health Sys., Inc., 160 A.D.3d 1009, 1011, 76 N.Y.S.3d 185 ). We now turn to the interrelated issues of the Town's declination to certify a vacancy for the office of Town Justice and the Town's resolution abolishing the third Town Justice office. Inasmuch as the Koplen respondents now seek to challenge the resolution, this Election Law proceeding is not the proper forum to do so. Such a challenge may be brought in a CPLR article 78 proceeding (see e.g. Matter of Miller v. Kozakiewicz, 300 A.D.2d 399, 751 N.Y.S.2d 524 ). The Town essentially declined to fill the vacancy, insofar as it did not file with the BOE a certificate indicating the occurrence of a vacancy in the office of Town Justice. Filing such a certificate is a condition precedent to the filling of the vacancy at the next general election (see Election Law § 4–106[4] ; Matter of Engel v. Board of Elections of State of N.Y., 144 A.D.2d 175, 176–177, 535 N.Y.S.2d 118 ; Matter of Amato v. Epstein, 22 A.D.2d 711, 253 N.Y.S.2d 86 ; see also Matter of Vitaliano v. D'Emic, 243 A.D.2d 662, 662, 663 N.Y.S.2d 627 ). Here, however, "no such certificate was filed and [the Koplen respondents] took no steps to compel its filing at a time when other candidates could have filed certificates of nomination with respect to the vacancy" ( Matter of Engel v. Board of Elections of State of N.Y., 144 A.D.2d at 177, 535 N.Y.S.2d 118 ). Insofar as the Koplen respondents sought an office that the Town had not certified to the BOE, the Supreme Court properly determined that Koplen's certificate of nomination is invalid, and properly prohibited the BOE from placing Koplen's name on the general election ballot as a candidate for the office of Town Justice.
In light of the foregoing, we do not reach the Koplen respondents’ contention that the Town's resolution abolishing the office of Town Justice was improper because the resolution was not subject to a permissive referendum as required by Town Law § 60–a(2).
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
MILLER, J.P., MALTESE, FORD and VENTURA, JJ., concur.