Opinion
2014-08-20
In the Matter of Ella STEVENS, et al., petitioners-respondents, v. Natile J. COLLINS, et al., appellants, et al., respondents.
In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a petition for an opportunity to ballot by providing for write-in candidates pursuant to Election Law § 6–164 in a primary election to be held on September 9, 2014, for the nomination as the Green Party candidate for the public office of State Senator for the 8th Senatorial District, in which Natile J. Collins, Kevin F. Hagan, and Gerald W. Bethea cross-petitioned, among other things, to validate the petition for an opportunity to ballot, Natile J. Collins, Kevin F. Hagan, and Gerald W. Bethea appeal from a final order of the Supreme Court, Nassau County (Driscoll, J.), entered August 8, 2014, which, after a hearing, granted the petition, inter alia, to invalidate the petition for an opportunity to ballot and denied their cross petition, among other things, to validate the petition for an opportunity to ballot.
ORDERED that the final order is affirmed, without costs or disbursements.
Natalie J. Collins, sued herein as Natile J. Collins, together with Kevin F. Hagan and Gerald W. Bethea (hereinafter collectively the appellants), filed, with the New York State Board of Elections (hereinafter the Board of Elections), a petition for an opportunity to ballot by providing for write-in candidates pursuant to Election Law § 6–164 in a primary election to be held on September 9, 2014, for the nomination as the Green Party candidate for the public office of State Senator for the 8th Senatorial District. Michael Venditto, as an aggrieved candidate, and Ella Stevens and Patricia Woodstock, as citizen-objectors, commenced this proceeding, inter alia, to invalidate the petition for an opportunity to ballot, and the appellants cross-petitioned, among other things, to validate the petition for an opportunity to ballot. The Supreme Court invalidated the petition for an opportunity to ballot on the ground that there was an insufficient number of valid signatures.
Contrary to the appellants' contention, the Supreme Court properly invalidated all of the signatures appearing on Sheet 2 of the opportunity-to-ballot petition. The date of the jurat purporting to authenticatethe signatures on Sheet 2 of that petition was “6–16–14,” whereas the signatures were all dated in July. That discrepancy was fatal to the signatures appearing on that page ( see Matter of Alamo v. Black, 51 N.Y.2d 716, 717, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of MacKay v. Cochran, 264 A.D.2d 699, 700, 695 N.Y.S.2d 113; Matter of Burgess v. D'Apice, 112 A.D.2d 1058, 1059, 493 N.Y.S.2d 44). The hearing testimony of the notary that he in fact authenticated the signatures on Sheet 2 in July, and that the date marked was an inadvertent mistake, did not serve to correct the defect, inasmuch as the time to file petitions with the Board of Elections, as well as the time to amend or correct such petitions, had expired by the time the hearing was held ( see Matter of Daverso v. Romeo, 89 A.D.2d 1054, 454 N.Y.S.2d 560; Matter of Esse v. Chiavaroli, 71 A.D.2d 1046, 420 N.Y.S.2d 798; Matter of Sortino v. Chiavaroli, 59 A.D.2d 644, 398 N.Y.S.2d 385, affd. 42 N.Y.2d 982, 398 N.Y.S.2d 415, 368 N.E.2d 37; Matter of Lyden v. Sullivan, 269 App.Div. 942, 57 N.Y.S.2d 657; Matter of Sinon v. Westchester County Bd. of Elections, 29 Misc.3d 496, 504, 906 N.Y.S.2d 493 [Sup.Ct., Westchester County]; cf. Matter of Etkin v. Thalmann, 287 A.D.2d 775, 776, 731 N.Y.S.2d 248).
Contrary to the appellants' further contention, the Supreme Court did not improvidently exercise its discretion in denying their request for an opportunity to ballot on equitable grounds. The opportunity to ballot may be afforded as an “exceptional equitable remedy” where a designating petition manifests an ostensibly viable candidacy but is nullified on the ground of a technical defect, leaving the political party without a designated candidate for a given office (Matter of Harden v. Board of Elections in City of N.Y., 74 N.Y.2d 796, 797–798, 545 N.Y.S.2d 686, 544 N.E.2d 605; see Matter of Hunting v. Power, 20 N.Y.2d 680, 681, 282 N.Y.S.2d 548, 229 N.E.2d 227; Matter of Gray v. Hochberg, 175 A.D.2d 892, 573 N.Y.S.2d 742). Here, since the requirement that the notarial statement accurately reflect the date of the authentication is one of substance, not form ( see Matter of Alamo v. Black, 51 N.Y.2d at 717, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of MacKay v. Cochran, 264 A.D.2d at 700, 695 N.Y.S.2d 113; Matter of Burgess v. D'Apice, 112 A.D.2d at 1059, 493 N.Y.S.2d 44), the error in the jurat on Sheet 2 cannot be considered merely technical ( see Matter of Bowen v. Ulster County Bd. of Elections, 21 A.D.3d 693, 695, 800 N.Y.S.2d 245). Moreover, the opportunity-to-ballot remedy is “intended to permit voters to write in the name of the candidate whose designating petition failed to comply with the technical dictates of the Election Law” ( Matter of Hochberg v. D'Apice, 112 A.D.2d 1067, 1068, 493 N.Y.S.2d 47, affd. 65 N.Y.2d 960, 961, 494 N.Y.S.2d 107, 484 N.E.2d 136 [emphasis added] ). Where, as here, the defective petition itself was for an opportunity to ballot pursuant to Election Law § 6–164, and the signers of the petition had not previously indicated their support for a specific candidate, the remedy is unavailable ( see Matter of Hochberg v. D'Apice, 112 A.D.2d at 1068, 493 N.Y.S.2d 47). Indeed, awarding the appellants the opportunity to ballot by write-in as an equitable remedy would permit them to obtain relief identical to that which they sought under the statute despite their failure to comply with the substantive statutory requirements. “The ‘opportunity to ballot’ remedy ... was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law” ( Matter of Harden v. Board of Elections in City of N.Y., 74 N.Y.2d at 797, 545 N.Y.S.2d 686, 544 N.E.2d 605). DILLON, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.