You are here: / Election Law
,

“Nailing” of Petition on Next to Last Day for Service, and Mailing on the Last Day, Was Sufficient—Respondent, Who Initially Declined Designation as a Candidate, Could Not Subsequently Accept Designation as a Substitute Candidate

The Fourth Department, over a two-justice dissent, determined that the petition seeking invalidation of respondent’s designating petition was timely served by “nail and mail” because the nailing occurred on the day before the last possible date for service and the mailing occurred on the last possible day for service. The fact the petition could not have been “received” by mail by that date was not determinative. On the merits, the court determined respondent could not be the substitute candidate for a vacancy he himself had created by initially declining the designation. With respect to the service issue, the court wrote:

… [T]he petitioner must effectuate ” actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced’ ” … . In other words, the respondents must “receive delivery” of the order to show cause and the verified petition “within the [statute of limitations] period” … . That requirement operates irrespective of the court’s specific service directions under section 16-116 … .

Contrary to the view of our dissenting colleagues, we conclude that petitioner effectuated “actual delivery” of the commencement papers when they were affixed to respondent’s front door. It is well established that because “the [commencement] papers were timely affixed to the front door, the fact that the papers mailed were not received on [or before the statute of limitations date] was not a jurisdictional defect” … . Matter of Angletti v Morreale, 2015 NY Slip Op 06616, 4th Dept 8-19-15

 

,

Candidate Designating Petition Deemed Invalid Due to Fraud (Unwitnessed Signatures)

The Second Department determined a candidate-designating petition was invalid because the subscribing witness did not in fact witness all of the signatures on the petition. The petition was invalid with respect to the candidate who was aware of the fraud, and the candidates who were not aware of the fraud (because there were not enough signatures after the invalid signatures were struck):

A candidate’s designating petition will be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud … , or where the candidate has participated in, or is chargeable with, knowledge of the fraud… , even if there are a sufficient number of valid signatures on the remainder of the designating petition … .

Here, the Supreme Court determined that Shapiro, the subscribing witness with respect to 147 signatures, had fraudulently and knowingly signed and submitted false witness statements, and that Spring [one of the candidates] was a party to the fraud. * * * . Moreover, we agree with the court’s determination that Shapiro fraudulently and knowingly signed and submitted false witness statements . Therefore, the court correctly determined that Spring participated in, and was chargeable with knowledge of, the fraud, and properly granted that branch of the petition which was to invalidate the designating petition as to him … .

However, since the Supreme Court determined that Shapiro’s witness statements on the contested sheets were false, the court erred in denying those branches of the petition which were to invalidate the designating petition as to the other two candidates, Perillo and Milner … .  Shapiro was the subscribing witness with respect to 147 of the 343 total signatures, and her false witness statements render those signatures invalid. Although Perillo and Milner did not engage in candidate fraud, the invalidation of 147 of the 343 collected signatures leaves them with an insufficient number of valid signatures. Thus, the designating petition should have been invalidated with respect to all three candidates … . Matter of Sgammato v Perillo, 2015 NY Slip Op 06630, 2nd Dept 8-19-16

 

,

Election Poll Worker Not an Employee—Not Entitled to Unemployment Insurance Benefits

The Third Department determined an election poll worker was not an employee entitled to unemployment insurance benefits:

“An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means [used to achieve those results] is the more important factor to be considered” … .

Here, claimant testified that she responded affirmatively to a card received in the mail from the Board of Elections asking if she was available to work on election day; she thereafter received training and was assigned to a polling place, where she worked as a poll worker or inspector on election day. Her duties included setting up and overseeing tables, signing in voters, showing them how to use the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were reported to the Board of Elections.

Poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections (see Election Law §§ 3-400, 3-402, 3-404, 3-412, 3-420; see also Election Law § 3-102). In the City of New York, they are compensated at a per diem rate established by the Mayor (see Election Law § 3-420 [1]). While, pursuant to those governing statutes, the Board of Elections may have exercised some supervision over the poll workers and their training, this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute … . Matter of Chorekchan (New York City Bd. of Elections–Commissioner of Labor), 2015 NY Slip Op 04552, 3rd Dept 5-28-15

 

,

Seasonal Residents Properly Deemed “Residents” of a Town for Election Purposes

The Third Department, in a full-fledged opinion by Justice Peters, determined that seasonal residents of a condominium were properly deemed “residents” of the town where the condominium is located for voting purposes under the Election Law. The court noted that, under the Election Law, a voter may have two residences and choose one of them for election purposes. The Election Law requires only that the voter have legitimate, significant and continuing attachments to the residence and there be no “aura of sham:”

The [County Election] Board’s determination upholding the voter registrations at issue constituted presumptive evidence of the … voters’ residence for voting purposes; thus, petitioner was saddled with the weighty burden of proffering sufficient evidence to overcome that presumption (see Election Law § 5-104 [2]…). The Election Law defines “residence” as “that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (Election Law § 1-104 [22]…). As the courts of this state have repeatedly explained, the Election Law “does not preclude a person from having two residences and choosing one for election purposes provided he or she has ‘legitimate, significant and continuing attachments’ to that residence” … . “The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence ‘without any aura of sham'” … . Matter of Maas v Gaebel, 2015 NY Slip Op 04353, 3rd Dept 5-21-15

 

,

Nail and Mail Service Not Valid—Not Calculated to Give Timely Notice of Order to Show Cause Challenging an Independent Nominating Petition

The Third Department determined that the method of service used for petitioner’s order to show cause challenging an independent nominating petition (naming a Libertarian Independent Party candidate for state senator) was not valid and reversed the granting of the application:

The manner of service provided in the order to show cause was not “‘reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory 14-day period for commencing a proceeding concerning the validity of a designating petition'” … . To institute a proceeding “under Election Law § 16-102,” a petitioner “must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to complete service, actual delivery must occur … . The Court of Appeals has held that the method of service employed here — affixing the order to show cause and papers to Bowman’s residence and mailing the same on the last day permitted for commencing a proceeding — is not a method of service reasonably calculated to give timely notice … . Contrary to petitioners’ assertions, our decision in Matter of Grimaldi v Board of Elections of the State of N.Y. (95 AD3d 1644 [2012]) is distinguishable. In that case, we concluded that service by affixing the papers to the respondent’s residence and either faxing or leaving a copy at the office of the respondent’s counsel on the last day to commence a proceeding was permissible; we did not permit affixing the papers to a residence and mailing the same on the last day to commence (id. at 1645-1646). Inasmuch as service was not completed within the time limit set forth in Election Law § 16-102 (2), the proceeding must be dismissed … . Matter of Wilson v Bowman, 2014 NY Slip Op 07289, 3rd Dept 10-24-14

 

Election Law Which Restricts Where Certain Candidates’ Names May Appear on the Ballot (Election Law 7-104 (4) (c)) Declared Constitutional

The Third Department determined that Election Law 7-104 (4) (c) was not unconstitutional as applied to petitioners, candidates for state office nominated by the Stop Common Core Party:

Petitioners commenced this proceeding seeking a declaration that Election Law § 7-104 (4) (c) is unconstitutional as applied to them because it violates their rights to freedom of speech and association guaranteed by the 1st and 14th Amendments of the US Constitution. Although petitioners did not dispute that respondents complied with section 7-104 (4) (c), they asserted that strict enforcement of that provision creates a patch-worked and illogical ballot that promotes voter confusion, makes it more difficult for Stop Common Core Party supporters to locate petitioners, and impinges upon petitioners’ right to associate and express themselves as a party slate of candidates who share common ideals. Petitioners further sought to compel respondents to place their names on the Stop Common Core Party line … . * * *

[In overruling the line of cases relied upon by the petitioners, the] Court [of Appeals] …  stated that the prior version of the statute — which is not meaningfully distinct from the present version before us (see Election Law former § 248) — “is clear and constitutional” … . Addressing its prior cases … which found a strict application of the statute to be unfair and prejudicial in cases similar to this one, the Court stated that “‘[u]nfair and prejudicial’ must mean something beyond detriment or inconvenience since the Legislature itself has said that fairness calls for the prohibition of a third column” to candidates nominated by independent bodies when those candidates already appear on the ballot as the nominees of two or more major parties (Matter of Battista v Power, 16 NY2d at 201). The Court clarified that “[t]he kind of unfairness and prejudice which would make the section unconstitutional as to a particular group must be of such character as to deprive that group of proper representation on the voting machine or otherwise make it practically impossible for the members of that group to vote as such” (id.).

In our view, Matter of Battista v Power (supra) is controlling, particularly after the Court of Appeals expressly indicated that it had overruled the last of the prior, inconsistent line of cases …. Under Battista, Election Law § 7-104 (4) (c) is not unconstitutional as applied to petitioners—their names appear twice on the ballot in separate major party lines and the ballot further designates them as candidates of the Stop Common Core Party, albeit in a less prominent fashion than they seek … . Matter of Cahill v Kellner, 2014 NY Slip Op 06886, 3rd Dept 10-10-14

 

Petition for the Opportunity to Ballot Not Demonstrated to Have Been Permeated by Fraud

The Second Department determined that a petition for the opportunity to ballot was not so permeated with fraud to justify granting a petition to invalidate it:

As a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud … or, if not permeated with fraud, where a potential candidate who stands to benefit from the validation of the petition for an opportunity to ballot has participated in or is chargeable with knowledge of the fraud … .

Here, the petitioners did not sustain their burden of establishing by clear and convincing evidence that the totality of the instances of forged signatures on the subject petition for an opportunity to ballot rose to the level at which it could be said that the petition was permeated with fraud … . Matter of Steinert v Daly, 2014 NY Slip Op 04206, 2nd Dept 6-11-14

 

, , ,

Prohibition Proceeding Was the Proper Vehicle to Contest the Appointment of a Special Prosecutor—the District Attorney Had Disqualified Himself from an Election-Related Investigation and Successfully Applied for the Appointment of a Special Prosecutor

The Court of Appeals determined an Article 78 proceeding sounding in “prohibition” was the appropriate vehicle to contest the appointment of  a special prosecutor. The district attorney sought to disqualify himself from an election-related investigation and successfully applied to the Deputy Chief Administrative Judge for the NYC Courts for an appointment of a special prosecutor.  The petitioner then brought the prohibition proceeding to contest the appointment.  The appellate division dismissed the petition finding the “prohibition” action inappropriate.   The Court of Appeals determined prohibition was the correct action and the special prosecutor was validly appointed:

The Appellate Division denied the petition and dismissed the proceeding. It held that relief by prohibition was unavailable because the conduct that petitioner was seeking to prevent was not “the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice” but rather a “purely investigative function” that was “executive in nature” (Working Families Party v Fisher, 109 AD3d 478, 480 [2d Dept 2013]). * * *

The Appellate Division erred in holding that an article 78 proceeding in the nature of prohibition is an inappropriate remedy in this case. We recently restated the rule that “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court” … . While the power to grant prohibition should be exercised sparingly, its availability in cases like this serves an important purpose. When the validity of the appointment of a prosecutor is in question, the question should where possible be given a prompt and definitive answer. It is not in the public interest to allow a prosecutor to carry out a lengthy investigation when there is doubt that his or her appointment is valid, and to run the risk that the process will have to start all over again with a different prosecutor. Matter of Working Families Party v Fisher, 2014 NY Slip Op 04116, CtApp 6-10-14

 

Substitution of Candidate Invalid

The Second Department determined a substitution of a candidate for the county legislature, based on the failure of the initial candidate (Roth) to meet residency requirements, was invalid because the substitution was made by the Committee to Fill Vacancies and not pursuant to Election Law 6-148(3):

The vacancy at issue here was created at the time of Roth’s nomination, when he still did not reside in the district. This constituted a vacancy in nomination rather than in designation. Election Law § 6-148(3) states, in relevant part, as follows: “A vacancy in a nomination made at a primary . . . may be filled by a majority of the members, of the party committee or committees last elected in the political subdivision in which the vacancy occurs.”

Here, since Roth’s disqualification created a vacancy made in a nomination at a primary, any substitution should have been made pursuant to Election Law § 6-148(3), not by the Committee to Fill Vacancies. “After the primary election has been held the committee named in the designating petition has no function and is without authority” … . The “statute is explicit” that the procedure outlined in Election Law § 6-148(3) governs a vacancy in a nomination that has been made at a fall primary … . Since the purported substitution was not made in accordance with Election Law § 6-148(3), it was invalid.  Matter of Venditto v Roth, 2013 NY Slip Op 06699, 2nd Dept 10-16-13

 

Provision Requiring Nonincumbents to Reside in District Does Not Violate Equal Protection

The Second Department determined that a charter provision requiring nonincumbents (here, Shapiro) to reside in the legislative district at the time of their nomination for the county legislature does not violate the equal protection clause:

Shapiro contends that the residency requirement for nominees as set forth in the Charter is unconstitutional and, thus, he should not have been disqualified. In particular, Shapiro challenges § 112(3) of the Charter, which grants incumbents one year to move into a newly drawn district following a “readjustment or alteration of the county legislative district.” Shapiro argues that the Charter, in requiring nonincumbents to reside in the legislative district at the time of their nomination, does not afford nonincumbents the same opportunity. “Legislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute’s invalidity beyond a reasonable doubt'”… . Based on the record before us, Shapiro failed to meet his initial burden of demonstrating beyond a reasonable doubt that the Charter’s residency provisions violated the Equal Protection Clauses of the United States Constitution (US Const, 14th Amend, § 1) or the New York Constitution (NY Const, art I, § 11). Matter of Becker v Shapiro, 2013 NY Slip Op 06679, 2nd Dept 10-16-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy