Opinion
714972/21
08-04-2021
In the Matter of the Application of Vickie PALADINO, Petitioner, as nominated for the public office or party position of Member of the New York City Council from the 19th NYC Council District, Queens County, City of New York Petitioner, v. John KYRIAKIDES, Objector-, Respondent, Commissioners of Elections of the City of New York and the Board of Elections in the City of New York, Respondents.
Attorney for Petitioner, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880, mitchalter48@hotmail.com Attorney for Respondent - John Kyriakides, John Ciampoli, Esq., Messina, Perillo and Hill LLP, 285 W Main Street, Ste 203, Sayville, New York 11782, (631)582-9422 ciampolilaw@yahoo.com, jciampoli@mphlawgroup.com Attorney for Respondents — Commissioner of Elections of the City of New York and the Board of Elections in the City of New York, Stephen Edward Kitzinger, Esq., NYC Law Department 100 Church Street, RM 2126 New York, NY 10007-2601, (212) 356-2087, SKitzing@law.nyc.gov
Attorney for Petitioner, Bernard Mitchell Alter, Esq., Alter & Barbaro, Esqs., 26 Court Square, Suite 1812, Brooklyn, New York 11242, (718) 237-0880, mitchalter48@hotmail.com
Attorney for Respondent - John Kyriakides, John Ciampoli, Esq., Messina, Perillo and Hill LLP, 285 W Main Street, Ste 203, Sayville, New York 11782, (631)582-9422 ciampolilaw@yahoo.com, jciampoli@mphlawgroup.com
Attorney for Respondents — Commissioner of Elections of the City of New York and the Board of Elections in the City of New York, Stephen Edward Kitzinger, Esq., NYC Law Department 100 Church Street, RM 2126 New York, NY 10007-2601, (212) 356-2087, SKitzing@law.nyc.gov
Robert I. Caloras, J.
The following numbered papers EF1-2, EF6-9, EF12 read on this motion by petitioner for an order declaring valid, the nominating petition which nominated her as an independent candidate for the public office or party position of Member of the New York City Council from the 19th New York City Council District in the General Election to be held on November 2, 2021.
Papers Numbered
Order to Show Cause - Affidavits - Exhibits. EF 1-2, EF 6-9
Answering Affidavit EF 12
Upon the foregoing papers it is Ordered and Adjudged as follows:
In this proceeding, petitioner seeks to challenge the determination of the respondent Board of Elections in the City of New York (Board) made on June 29, 2021, and further seeks an order declaring her petitions valid and restoring her name to the ballot.
The Board ruled that the petition was invalid on the grounds that petitioners’ certificate of acceptance did not include the date of the election in which she seeks to run. On its face, the certificate of acceptance indicates that petitioner seeks to run in the "General Election" and does not include the date thereof, being November 2, 2021.
Election Law § 6-146, entitled "Nomination and designation; declination or acceptance" provides:
"1. A person designated as a candidate for nomination or for party position, ... shall, in a certificate signed and acknowledged by him, and filed as provided in this article, accept the designation or nomination as a candidate ..."
At the hearing of this matter, the respondent Board maintained that the failure to include the date of the election presented the possibility that certificates of acceptance could be used again. Respondents argued that a certificate of acceptance could potentially be used where a candidate sought to run for the same office in the same year, as could occur in the event of a special election. It was uncontroverted that petitioner did not use the sample forms provided by the Board, and fashioned her own form of a certificate of acceptance. Respondents maintain that this was a fatal defect, and that had petitioner used the form promulgated by the Board, it would have been presumptively valid. However, it is noted that at the hearing it was conceded that the petitions were otherwise proper and sufficient, and contained the valid number of required signatures. Moreover, both the petitions and the cover sheet properly indicated the date of the election.
Following oral arguments, counsel for respondent John Kyriakides requested leave to submit answering papers for the stated purpose of distinguishing the case law cited by petitioner. However, no argument raised in the answering papers addresses, much less distinguishes, the clear authority of Conklin v Canary (112 AD2d 1062 [2nd Dept 1985], affd 65 NY2d 952 [1985] ). "The Election Law does not require that the certificate of acceptance ... specify the date of the primary election." ( Id. at 1062.)
Plainly, an "immaterial and ministerial" error does not rise to the level of a fatal omission. ( Reagon v LeJeune , 307 AD2d 1015 [2nd Dept 2003] ; cf. Matter of Sortino v Chiavaroli , 59 AD2d 644 [4th Dept 1977], affd 42 NY2d 982 [failure to include a notary and jurat on a petition is fatal].) Where "there has been no showing of any intention on the part of the candidate to confuse, and no showing that any of the voters were confused," the defect does not warrant invalidation of the petitions. (Reagon v LeJeune, at 1015.) Here, as in Matter of Finn v Sherwood (87 AD3d 1044 [2nd Dept 2011] ), the petitioner filed a certificate of acceptance containing her "complete and correct name, [her] correct address, the correct political party, the correct office ... [and] the said certificate was duly acknowledged by a notary public." ( Id. at 1045-1046.) In Finn , where the certificate of acceptance made reference to the general election rather than the primary election, the Court found that such an "error presents no basis to invalidate the designating petition." ( Id. at 1046.)
In a recent, analogous case, Matter of Kowal v Bargnesi (194 AD3d 1489 [4th Dept 2021] ), the Court found that the failure to state the date of the election on a certificate of authorization was still in substantial compliance with the statute. The absence of the date of the election was not a defect sufficient to warrant invalidation where "the statute does not specifically prescribe that the date of the election be specified and was not a matter presenting an opportunity for prejudice or possibility of fraud." (Id. at 1490.) Certificates of Authorization are governed by Election Law § 6-120, "[A] certificate of authorization shall be signed and acknowledged by the presiding officer and the secretary of the meeting at which such authorization was given."
Pursuant to section 6-146, a certificate of acceptance must be signed and acknowledged. This is an element of prescribed content that must be strictly complied with, and is not a matter of mere form. (Matter of Rhodes v Salerno , 90 AD2d 587 [3rd Dept 1982], affd 57 NY2d 885 [1982].) The "clear mandate" of the statute and the "obvious purpose" thereof, is to prevent a fraudulent acceptance or declination of a nomination." ( Id. at 588.) In this case, there is no allegation that the failure to include the date of the election on the certificate of acceptance implicated any risk of fraud upon the voters. Rather, based upon the import of the holding in Conklin, nothing in petitioner's de minimus exclusion of the date from the certificate of acceptance interferes with the purpose of the statute.
It is respondents’ contention that the failure of petitioner to use the sample forms provided by the Board warrants dismissal. This argument is without merit. "While no particular form is mandated, the data must be set forth in a manner reasonably calculated to give the requisite notice and information to the reader." (See generally , Matter of Ruiz v Saez , 68 NY2d 154, 161 [1986] ; Matter of Giansante v Lowenst ein 133 AD2d 194 [2nd Dept 1987] [inclusion of a statement on a cover sheet did not invalidate the petition where it conveyed a meaning similar to the preferred language]; Matter of Ardesia v Seidel , 242 AD2d 343 [2nd Dept 1997] [cover sheets and attached schedules substantially complied with State and City Board of Elections regulations].) Respondents seek dismissal on this ground, but cite no statutory authority, case law or regulation requiring that the sample forms, or even those adopted by the New York State Board of Elections (State Board), are mandatory in use.
Finally, respondents argue that the petition must be dismissed on the grounds that the State Board was not named as a necessary party. However, there is no challenge as to any actions taken by the State Board, and no judgment on this issue could inequitably affect its interests. (Cf Matter of Morgan v de Blasio , 29 NY3d 559 [2017].) This argument was improperly made for the first time in answering papers, yet respondents have been aware of all parties named in this action since its inception, and further failed to raise this issue at the hearing. As such, this belated claim is without basis.
Accordingly, it is
ORDERED and ADJUDGED that the petition is granted, and it is further
ORDERED and ADJUDGED that the nominating petition which designated the petitioner as an independent candidate for the public office or party position of Member of the New York City Council from the 19th New York City Council District in the General Election to be held on November 2, 2021, is declared valid, and it is further
ORDERED and ADJUDGED that the respondent Board of Elections in the City of New York is directed, required, and commanded to place and print the name of the petitioner VICKIE PALADINO, as nominated as an independent candidate for the public office or party position of Member of the New York City Council from the 19th New York City Council District, Queens County, City of New York, on the official ballots to be used in and for the General Election to be held on November 2, 2021; and it is further
ORDERED and ADJUDGED that the respondent Board of Elections in the City of New York is enjoined and restrained from printing, issuing or distributing for use during the said General Election aforementioned, any official ballots upon which the name of the petitioner VICKIE PALADINO, as nominated as an independent candidate for the public office or party position of Member of the New York City Council from the 19th New York City Council District, Queens Country, City of New York does not appear, and shall not print any ballot if the name of VICKIE PALADINO does not appear as an independent candidate for Member of the New York City Council from the 19th New York City Council District, Queens County, City of New York, for a General Election to be held on November 2, 2021.