Referee Report in Matter of Gerson v BOE

8/14/2019 Referee Report in Matter of Gerson v BOE

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SUPREME COURT OF THE STATE OF NEW YORK THE STATE OF NEW YOCOUNTY OF NEW YORK NEW YORK, NY 10013.3831KIn the Matter of the Application of vAlan J. Gerson Tndex No. 110759 /09Petitioner,

For an Order pursuant to the Election law of the Stateof New York, declaring valid petition designatingPetitioner as a Candidate for the Democratic REFEREES REPORT &nomination for the Public Office of Council Member RECOMMENDATIONSfrom theV City Council District, Borough of Manhattan.City ofNew York and directing the said Board of $L%E S. LOWENSTEINElections to print and place the name of Petitioner upon -.SPECW.L REFEREEthe ballot to be used at the forthcoming PrimaryElection of the Democratic Party to be held. onSeptentbcr 15, 2009 1AUG

-againstThe Board of Elections in the City ofNew York,Respondent xAppearances:Petitioner by,Kantor Davidoff Wolfe Mandelker Twomey & Gallanty, P.C. by,LawTence A. Mandelker. Esq. andDan iel S. Kokhba, Esq.51 Eas t 42id StreetNew York, NY 1001 7Peter GJ.eason by,Dunnington Bartholow & Miller, LLP by,Raymond .1. Dowd, Esq.1359 BroadwayNew York, NY 10018TO TIlE SUPREME COURT: NEW YORK COUNTY IA PART19

By decision and order of Justice Edward H. Lchner the undersigned was assigned as a SpecialReferee to hear and report with recommendationswith respect to the issues raised in the Order to ShowCause of July 29 , 2009 to validate the desiating petition filed by Alan 3. Gerson as a candidate for


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the Democratic nomination for the Public Office of Council Member from tb.e 1 City Council Districtin the Borough of Mantattan, City of New York.

In July of 2009 petitioner Alan I (3erson (hereinafter candidate) filed a designating petition for tbeaforementioned elected office with respondent Board ofElections in the City ofNew York (hereinafterBoard of Elections). The petition contained a SUffiCCflt number of signatures to qualify the candidatefor a place upon the ballot As such the number of valid signatures within the thirteen volume petitionfiled by th.e candidate was never brought into issue in this reference. No objections were ever filed asagainst the candidates designating petition.

On July 2], 2009 the Board of Elections advised the candidate that the cover sbeet for hisdesignating petition was inval id because of a defect in Volume NY 0900031 2 wherein a number ofpages in the petition containedan incorrect address of the candidate, 1505 LaGuardia Place, New York,NY 10012 which in turn did not match the candidates actual address of 505 LaGuardia Place, NewYork. NY 10012. Uh.e Board of Elections :ftirther informed the candidate that this defect must be curedwithi.n three days of the date of the letter by the filing of an amended cover sheet. A failure to timelycure the defective cover sheet would result in the invalidation of the entire designating petition.

On .TuJy 22 , 2009 the Board of Elections made a hither deteni,ination that certain hand madecorrections on a number of petition sheets in another petition volume. \olutne NY 0900242 whereinthe above noted address correction had been made in writing were questionable, inasmuch as the Boardof Ejections could not determine whether the modifications had been made prior to obtaining thesignatures on said petition sheets or subsequent thereto.

On July 24 , 2009 the candidate filed an amended cover sheet wherein a statement was attachedexpJaining that the incorrect address printed on certain sheets in petition Volume NY 0900312 was theresult of a printef s error and that said filing was no t intended to promulgate fraud or deception with

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regard to the candidates designating petition.On July 24, 2009 a second amended cover sheet (hereinafter later cover sheet) was filed which

contained other data relative to the candidates designating petition. The amended later cover sheet setforth that the candidates designating petition containedtwelve volumes. Petition VolumeNY 0900312was deleted from mention on the second amended cover sheet. The amended later cover sheet didcontain a reference to petition Volume NY0900242 as being part of the candidates petition.

On July 28 , 2009 the Board of Elections deteriined that the candidates petition was in..vaJid as theresult of a defective cover sheet. A.t a hearing held on August 5, 2009 the Board ofElections ruled thatpetitioners cover sheet was defective and that the candidates entire designating petition was thusinvalid. There has been no contention asserted by any party to this proceeding that if both petitionVolumes NY09003 12 andNYO900 242 wel-e to be excluded from the candidates designating petitionthat the candidate would not have a sufficient number of valid signatures within the remainder of hispetition. so that he would he entitled to have his name placed upon the ballot as a candidate for the CityCouncil from the l. City Coun.ci.1 District in the Democratic Primary Election on September 15, 2009.

The Order to Show Cause in this proceeding was made returnable before Justice Edward H.T..ehner on August 3, 2009. The parties appeared before Justice Lehner on Ausust 3, 2009. The courtreferred to the undersigned to hear and report with recommendations the issue of whether thecandidates designating petitionwas suff5 ciently valid so that his name should be placed upon the ballotfor the September 15, 2009 Democratic Primary Election for the Public Office of Council Memberfrom the P City Council District ofNew York. Borough ofManhattan, City of New York.

On August 3, 2009 the parties appeared before the undersigned as denominated above, at Room300 of Supreme Court New York County at 71 Thomas Street. A hearing was held and completed inthis reference on August 4. 2009. The complete transcription of this proceeding is filed together with

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this report.At the hearin.g tile undersigned received into evidence a number of documents (exhibits) The

exhibits are filed together with the instant report and recommendations of the undersigned.Respondent Board of Elections did no t appear at thc hearing on August 4, 2009, The undersigned

mindflul of the expedited court calendar applicable to Election Law matters proceeded immediatelyupon the issue referenced for hearing by the court. The referenced issue was heard and same is reportedupon as indicated below.

HEARINGAt the hearing each of the parties offered an opening statement. A document was then moved into

evidence by the candidate wherein it was set forth that the records of the Board of Electionsdemonstrate that 1505 LaGuardia Place, in New York County is a non existent address.

Thereafter petitioner, candidate Alan Gerson was called as a witness for the petitioncr.The witness initially testified that he is a member of the City Council in New York City. The

witness described the geographic boundaries of LaGuardia Place. The witness then offered testimonyasto an amended cover sheet filed withBoard of Elections relative to the witness designating petition.The amended cover sheet specifically stated that 1505 LaGuardia Place in New York County was a nonexistent address. The document bore a Board of Elections date stamp of July 24,2009 and requesteda withdrawal ofthe Board of Elections objection as to Vol.u.meNYO9003l2 ofthewitness petition.

Upon completion of the direct examination a cross exam ination of the witness took place.In the context of cross examination testimony was adduced of th.e witness wherein he described the

circumstances surrounding the creation and tiling of the amended cover sheet. Th.e witness was farther

The parties were permitted in lieu of a summation to submit for the undersignedsconsideration a post hearing memorandum of lawby August 7. 2009. Each party timely submitted a post hearing memorandum which is filed together with the instant report of theundersigned.

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queried, as to the circumstances of how he learned of the existence of problems with his petition.The witness was additionally queried as to the manner in which the cover sheet issue was deal t withby the witness canipaign The witness specified that he authorized Mr. Dudley Gaffin to file hisamended covet sheet. The sum and substance ofthe testimony adduced ofthe witness in th is regardwasthat his campaign filed two amended cover sheets with the Board of Elections. A later filed amendedcover sheetwhich deleted Volume NY090031. 2 from the designating petition, while the first amendedcover sheet filed by the campaign sought to clarify to the Board of Elections the nature of the incorrectadd ress that appeared within the context of the witness designating petition.

Upon completion of the cross examination the testimony in this proceeding was concluded.FINDiNGS OF FACT /CONCLUSIONS OF LAW

In considering the issue of whether the defect in the candidates cover sheet was defective to thepoint where same invalidated the candidates entire designating petition the undersigned has reviewedthe proo f; testimony and evidence adduced at the hearing. Upon such review the undersigned sets forthhis findings as indicated below.

The candidate in this action initially filed a cover sheet wherein it was se t forth that the candidatespetition consisted of thirteen volumes. There were two volumes within the petition which containedpe tition shee ts that had an inco rrec t address for the cand idate printed thereon. They were iden tifiedwithin the context of the hear ing as Volume NY09003 12 and Volume NY 09000242.

The candidate filed two amended cover sheets in order to cor rect the petitions defects tha t resultedfrom the misprinted address. The first am ended cover shee t sough t to expla in the nature of the incorrectaddress and fUrther set forth that there was no intent by the candidate to com mit any fraud. The secondamended cover sheet gave details relative to the cand idates des igna ting petit ion and deleted petitionVolume NY0900312 from the sam e.


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The flies of the Board. of Elections as se t forth at 9 NYCRR 6215 set forth a number of itemswhich must appear upon a petition cover sheet. Pursuant to said rules a cover sheet must inter aliainclude items such as the name and address of the candidate and the total number of volumes in thepetition.

Election Law 6-1 34(10) provides in pertinent part that the mles relative to designating petitionsshall be liberally construed and that there should be substantial compliance with said rules. Theessential premise of th.e statute is that enors in a petition which are not deemed, to have been intendedto create fraud or cothision. should be viewed in a context wherein it should be determined whethersame were intended to or could cause fraud or confusion in the petitioning process. The legislativeintent relative to this statute as amended in 1996 was to permit a serious candidate forpublie office theopportunity to establish substantial statutory compliance with Election Law 6-134, rather than topermit the invalidation of the candidates entire designating petition

En the matter at hand the undersigned notes upon a review of the testimony, proof and evidenceadduced upon the hearing held before mc that the first amended cover sheet filed by the candidate onJuly 24, 2009 contained insufficient information so as to be in substantial compliance with rules of theBoard of Elections as cited above. This amended cover sheet is therefor considered to be a nullity asa matter of law and fact.

The undersigned ffirther notes that the second and later filed amended cover sheet did containsufficient information so that same could in fact be deemed to be an amended cover sheet incompliance with the rules of the Board of Elections as se t forth above aiid within the statutoryrequirements set forth at Election Law 6-134(2). It is of some note that the Board of Elections did notappear in this action to offer proof, testimony or evidence that would establish that the candidate could

Sce Legislature Memoranda, Memorandum in Support, New York Stste Senate Chapter 709 Laws of t996.McKinneys 1996 Session Uws of New York.

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not file the later cover shee t on July 24, 2009. The unde rsigned therefor finds that the later cover sheetwas timely fi led within the three day time period that was allotted, for the filing of an amended coversheet. It is thither noied that the Boa rd of Elections presen ted no proof, testimony or evidence toestablish that the later cover sheet was in fac t filed with an intent to create confusion or promulga te afraud upon the public or the Board of Elec tions.

As such th.e undersigned finds that later flied am ended cove r sheet as filed on July 24, 2009 wasin fact the am ended cover sheet relative to the candidates petition . The undersigned therefore findsthat Volume NY09003 12 of said petition was no longer part of the candidates pe tition upon the filingof the amended cover shee t on July 24, 2009. The undersigned.th us de termines that the petit ion sheetscontained in Volum e NY09003 12 and the signatures con tained thereon are not part of the candidatesdes ignating petition.

Wha t remains for con sideration is whether the seven petition shee ts contained in VolumeNY0900342 of the candidates des ignating pet ition wherein the candidat&s address is rn isprinted andwhich contains alte rnations which am ended the address to the cand ida tes correct add ress and whichvolume was included in the later am ended cover sheet constitu ted a suff icient defect in said amendedcover shee t so as to render invalid the candidates ent ire designating petition.

In consideration of the foregoing it is once again noted that the issue of whether the remainingtwelve volumes of the candidates petition contained sufficient valid signatures so as to allow thecand ida tes nomination to go forward was never placed into issue. Indeed there was no argumentoffered at the hea ring to establish that were pe tition Volume NY0900342 to be excluded in. its entiretyfrom the remainder of the cand ida te s des igna ting petition that the cand idate would still not haveenough valid signa tures to perm it the candidacy to go forward.

The entire argumen t seek ing to void the candidates designating petition appears to rest upon the

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Board ofElections determination that the original cover sheet or the amended cover sheet if same wasachially deemed to be accepted. by the Board of Elections was so violative of ti-ic rules of the Board ofElections so that the candidates entire petition should he voided.

The undersigned upon due examination of the proof, testimony and evidence adduced at the hearingfinds that to the extent that enors exist in the candidates address on seven petition sheets withinVolume NY0900342 that same is in fact an error without substance.

It has been held as a matter of law that where there is an innocent and inconsequential violation(error) of the rules set ou t at Election Law 6-134 with respect to a petition cover sheet such that it isclear that tlj.e candidate has nothing to gain from the violation and where the violation is such that thereis no potential for fraud or prejudiec, same will no t be a basis for the invalidation of an entiredesignating petition [Fromson v. Lefever 112 Ad2d 1064 (2 Dept. 1985) affirmed at 65 NY2d 946(19S5)j.

In the matter at hand, as previously stated, the proof. testimony and evidence adduced at the hearingin this reference more than amply establishes that of the twelve petition volumes that remained of theoriginal thirteen volumes filed by the candidate with the Board of Elections same contained sufficientvalid signatures so that the candidates designating petition was in compliance with the numericalrequirements relative to the same. In addition even ifpetitiou VolumeNY0900342 were excluded fromthe candidstes designating petition there would yet be sufficient signatures within the designatingpetition to validate the candidates designating petition. Moreover there is nothing in the record of thisreference that would establish that the error in the seven pages wherein the candidates address wasmisprinted in petition Volum.e NY0900342 was such that the candidate stood to gain any benefittherefrom or that this error was intended to cause some type of fraud, conflisiot or prejudice to thenomination process. As such to the extent that the foregoing resulted in an error in the later amended

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cover sheet f lied on July 24. 2009, said error is determined by the undersigned to be an error withoutsubstance.

The undersigned therefore detent ines that the candidates later amended cover sheet as submittedon July 24,2009 withrespectto the desiating petition at issue herein is in fact a sufficiently valid andappropriate cover sheetfor said nominatingpetitionwirhin the meaning ofElection Law 6-134(2). Theundersigned further determines that the candidates nominating petition is otherwise valid in that itcontains a sufficient number of signatures for a valid designating petition for the Public Office of CityCouncil and that there is no permeation of fraud therein.Accordingly the undersigned determines that respondent Board of Elections was in error as a matter

of law and fact when it determined to invalidate the designating petition. of th.e candidate in thisreference.

RECOMMENDATIONSThe undersigned having conducted th.e above noted proceeding an.d having found that respondent

Board of Elections was in error when it invalidated the nominating petition of the candidatei-ecommends that upon confirmation of the in.stan.t report that the court issue an order directing theBoard of Elections to validate the designating petition of the candidate and place the candidate on theballot as a candidate in the primary election of September 15, 2009, for the Democratic nomination forthe Public Office of Council Member from the 1M City Council Disirict, Borough of Manhattan, Cityof New York.

The parties if so advised shall contact the Clerk of IA Part 19 [(646)386- 3277] for the purpose ofcalendering a motion to confirm/vacate the report and recommendations of the undersigned.

The parties are furthermore advised that f inal day that Election Law matters will be considered

iSce thc undersigneds report n the reference heiring index #110(588/09.9


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in the Appellate Division is August 18, 2009.This constitutes the report and recommendations of the Special Referee.

Respectfully submitted,LESLIE S. LOWENSTEW4

DaSPECIALREFERE -;Leslie S. LowensteinSpecial Referee

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Documents

Referee Report in Matter of Gerson v BOE