DECISION AND ORDER This is a proceeding pursuant to Election Law §16-106 to review Respondent Board of Elections’ rulings as to the validity of absentee ballots in the 2021 General Election for the Town of Washington Town Board. The following papers were considered: NYSCEF documents 1-4, 6-7, 9, 11-12, 14-15, 19-31, 33-34, 40-43, 45, 46, 51-55, 60, 61 and 63. Procedural Background A detailed recitation of the procedural history of this case is necessitated by the nature of the applications currently pending before the Court. Petitioners, Leslie B. Heaney (“Heaney”) and Douglas J. Giles (“Giles”) filed a Petition and Order to Show Cause on November 9, 2021. A virtual appearance was scheduled by the Court for November 22, 2021, at which point all parties appeared through counsel. At that time, this Court granted, on all of the attorneys’ request, an order enjoining the certification of the election results pending a possible hearing on the absentee ballots. A hearing was scheduled for December 2, 2021. Counsel for Petitioners and Respondents appeared on December 2, 2021 and indicated that they were requesting rulings on certain absentee ballots. When the Court advised that the Petition only requested the safeguarding of the ballots, counsel stipulated that the Petition be amended to include court review of the Board’s decisions as to those ballots.1 The parties then stipulated to the submission of 17 absentee ballots for court determination as to their validity. Counsel for the Petitioners and counsel for Respondent Candidates Steven V. Turletes (“Turletes”) and Michael E. Murphy (“Murphy”) set forth their clients’ respective positions as to each ballot. For five of the ballots, the Court made a determination immediately after hearing from the attorneys (Board Exhibits A, C, E, G, and J). Five other ballot issues were resolved either by stipulation of the attorneys or through withdrawal of the objection (Board Exhibits B, I, K, O and P). The Court reserved decision on five of the ballots (Board Exhibits D, F, H, Land N), and, after a brief recess, the Court issued decisions as to those ballots, which included sustaining the objection as to Board Exhibit D. The approved ballots were counted. The Court further indicated that the hearing would continue as to the last ballot (Board Exhibit Q) on the issue of whether the absentee ballot cure affirmation was timely mailed. The hearing was adjourned to the next day, December 3 at 2:30 pm. After the parties left on December 2, the Court reviewed Board Exhibit Q and emailed the parties asking if the language contained in the Board of Elections’ cure affirmation form as to the date of mailing resolved the question of timeliness. After receiving this Court’s correspondence, counsel for Respondent Candidates withdrew his objection to the cure document and requested that the ballot be open and counted. Counsel for the Petitioners, Daniel Pagano, also sent an e-mail that evening which advised that he sought to make an offer of proof regarding Board Exhibit D and requested that the Court permit P.G., the purported voter for the absentee ballot marked as Board Exhibit D, to testify as a witness at the hearing on December 3, 2021.2 Counsel submitted numerous emails throughout Friday. December 3, 2021, prior to the scheduled continuation of the hearing that afternoon. This included further affidavits from Ms. G. and Ms. Pagano, as well as the objection by counsel for Respondent Candidates to Ms. G.’s testimony. The hearing continued virtually on December 3, 2021 at 2:30 pm, at which time Board Exhibit Q was opened and canvassed, which resulted in a tie between Respondent Turletes and Petitioner Heaney. The Court directed that the attorneys submit papers by the end of the day addressing Petitioners’ request to present Ms. G.’s testimony. The case was adjourned to December 10 due to the Court’s on-going jury trial and scheduling conflicts on the part of the attorneys. On the evening of December 3, 2021, Petitioners’ counsel filed a proposed Order to Show Cause, seeking to renew and/or reargue the Court’s decision on Board Exhibit D. The Court signed the Order to Show Cause on December 6, 2021 and directed that Respondents submit opposition by 5:00 pm December 6, 2021 and any Reply was due by 9:30 am on December 7, 2021. By Court Notice dated December 8, 2021, the parties were directed to report for an in-person appearance on December 10, 2021, at which time the Petitioners were to be prepared to present testimony from all witnesses, including witnesses as to the efforts to contact Ms. G. prior to the December 2, 2021 hearing. The Board of Elections was directed to bring Board Exhibit D to the appearance. On December 10, 2021, Ms. G. testified before this Court. In the interest of judicial economy and for the convenience of the witness, but over the objection of counsel for Respondent Candidates, the Court permitted her testimony as to her signatures on the ballot envelope and her registration form as well as her illness prior to the hearing on December 2, 2021.3 However, during the testimony of Ms. G., the Court noticed that there was an issue with the envelope containing the absentee ballot. The Court spoke with the attorneys and showed them the ballot envelope which appeared to be open. Counsel agreed that the envelope was sealed at the December 2, 2021 hearing. The Court asked that the County Attorney, as counsel for the Board of Elections, come to court. Direct and cross-examination of Ms. G. proceeded and the Court sustained objections to Ms. G. opening the absentee ballot envelope. Assistant County Attorney, Christian Cullen, appeared at the conclusion of the testimony of Ms. G. The Court requested that he speak with his clients, the Commissioners of the Board of Election, as to the condition of the envelope. Counsel indicated that he did not need to speak with his clients as he had been in sole possession all of the Board’s Exhibits that the Court had ruled would not be canvassed since the hearing on December 2. Counsel for Petitioners and Respondent Candidates both posed questions to Assistant County Attorney Cullen on the record. The hearing concluded at approximately 4:30 pm and the Court requested submissions regarding the condition of Ms. G.’s ballot envelope. After review of the submissions, the Court ordered that the hearing would continue on December 16, 2021 at which time the Court would hear the testimony of Ms. G. as to authentication of her ballot. The Board of Elections was directed to have representatives present at her home, in the event Ms. G. testified virtually, in order to safeguard the ballot and witness the opening of the envelope. The court notice indicated that the Court was cognizant of the arguments made by Respondent Candidates but that any objections were reserved as the Court intended to decide all of the applications in toto at the conclusion of the case. On December 16, 2021, new counsel appeared for the Petitioners as Mr. Pagano would also be testifying in support of their applications. Ms. G. testified virtually. Her ballot was immediately thereafter secured by Board of Elections personnel and remains in their possession. Mr. Pagano also testified and the Petitioners rested. Counsel for Respondent Candidates stated that he wished to call both Petitioners but that neither was present. The parties stipulated that Mr. Giles did not make any effort to contact Ms. G. and that Ms. Heaney would testify Monday, December 20, 2021. Respondent Candidates’ attorney further indicated that he may file an application. On Friday afternoon, December 17, 2021, an Order to Show Cause for Renewal and Reargument was filed by Respondent Candidates. The Court signed it and made the application returnable Monday, December 20, 2021. The order required the appearance of Mr. Giles. On December 20, 2021, the matter concluded with the testimony of both Petitioners and summations by counsel for the Petitioners and Respondent Candidates. FINDINGS OF FACT Two witnesses testified as to Petitioners’ application, Ms. G. and Petitioners’ original attorney, Mr. Pagano. Ms. G. testified on December 10, 2021. She had requested an absentee ballot for the general election as she had major cancer surgery scheduled for October 22 so she could not early vote. Ms. G. identified her signature on the absentee ballot envelope (Board Exhibit D). She had signed her full name on the envelope. She also identified her signature on her voter registration record. She explained that she used initials on the registration as that is how she customarily signed documents. The initials were “TM” which stand for “Trish” and the first letter of her maiden name. Ms. G. testified that both the envelope and the registration record bear her signature. She signed her full name on the absentee envelope as it was her legal name and she wanted to be particularly careful as she had never voted absentee before. She also stated that she did not receive a cure affidavit from the Board of Elections. Ms. G. further testified that she turned off her ‘land line’ from November 15, 2021 until December 2, 2021. Calls would not go to voice mail. Her cell phone was set to “do not disturb.” She also noted that the Board of Elections voter registration form did not contain her accurate cell phone number. Ms. G. explained that her initial recovery period from her surgery went well but after ten days, the situation changed and her recovery became “protracted.” She restricted her activities; she did not see any visitors or talk on the phone. She was on pain medication and she was fatigued so she did “a lot of sleeping.” She spoke with Mr. Pagano on the evening of December 2, 2021. She reviewed, on cross examination, affidavits signed by her and indicated that Mr. Pagano drafted the affidavits for her signature after speaking with her. She had one of the affidavits (NYCEF Doc. No. 20) notarized at a local bank. Ms. G. testified again on December 13, 2021. This testimony was via TEAMS. She was questioned by Respondent Candidates’ counsel as to any markings or items in her ballot which would enable her to state with certainty that the ballot was hers. She indicated that she wrote in a name for one office and that she did not vote for another office. Then, in the presence of Board of Elections employees, Ms. G. opened the ballot contained in the absentee envelope signed by her. She identified the ballot as her ballot stating that she recognized her handwriting for the write-in. The ballot also contained a blank for the race in which she declined to vote. The Court fully credits the testimony of Ms. G. Ms. G. is recovering from major surgery yet she appeared in court to make it clear that she wished her ballot to be counted. Her testimony was in all respects credible, competent, and coherent. Mr. Pagano testified next for the Petitioners. He stated that he personally attempted to contact Ms. G. by calling her on November 29, November 30 and December 1. He only reached Ms. G. after his client gave him her number. His son also tried two to three times to call Ms. G. Mr. Pagano further conducted some internet searches in an effort to contact her. Mr. Pagano did not go to the G. home as he did not think anybody was there. On cross-examination, Mr. Pagano acknowledged that he made numerous mistakes with his paperwork, including errors in notarizing and uploading documents to NYSCEF. He also failed to use the language “upon information and belief” in his affirmation. Mr. Pagano’s testimony was credible and earnest. While his legal work was frequently sloppy, it cannot be said that Mr. Pagano was dishonest or attempting to mislead this Court.4 Respondent Candidates called both Petitioners as their witnesses. Ms. Heaney testified on Respondent Candidates’ opposition to the Petitioners’ application to reopen the hearing. Mr. Giles testified on Respondent Candidates’ order to show cause. Ms. Heaney testified that she did not participate in the recanvass of the ballots at the Board of Elections. She became aware that there was a challenge to seven ballots and, while she was told of the challenge to Ms. G.’s ballot, she thought it was a political challenge without any “real basis” as Ms. G. was a public supporter of Ms. Heaney’s. It was not until the hearing on December 2nd that she understood that the issue as to Ms. G.’s ballot was a question of unmatched signatures. She told her attorney that she could reach Ms. G. and the attorney told her that he had already been trying to reach her without success. Ms. Heaney’s testimony was credible and provides a reasonable explanation for why she did not personally reach out to Ms. G. sooner.’ Mr. Giles testified that after the election he received a text message from Andrew Heaney stating that a petition would be filed on behalf of the “My Millbrook” slate in order to have an attorney present during the recount. He stated that he did not really pay much attention to the proceedings as he was behind in the count and did not believe that the gap could be made up in the recount. He indicated that he said “OK” or “thank you” to the filing of a petition and he understood that he would be “peripherally” involved. Mr. Giles may have received papers from his attorney but he was not sure. Mr. Giles was forthright and careful to be precise when his memory failed or when answering questions as to his understanding about the election legal proceeding to which he assented. The Court finds Mr. Giles’ testimony credible and notes that the Respondent Candidates’ Order to Show Cause appears to be the product of local rumor in Millbrook Republican circles that there was a lawsuit about election fraud commenced by Petitioners. DISCUSSION The primary issues before this Court are quite simply stated; should the Court hear and consider Ms. G.’s testimony as to Board Exhibit D, her absentee ballot, when the Court ruled that the ballot could not be canvassed as the signatures did not match? And if the Court will consider her testimony, should her absentee ballot be counted? While the Court understands that this case has been hard fought, given that Ms. G.’s ballot will most likely be determinative in this tied race, and that there has been much legal argument and submissions due to complexities born from the unique facts in this case, the answers are equally simple: Yes. G. Testimony Whether to permit Ms. G. to testify is a discretionary decision by the Court. Kay Found. v. S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499 (2d Dept. 2006); Sweet v. Rios, 113 AD3d 750 (2d Dept. 2014); Evangelinos v. Reifschneider, 241 AD2d 508 (2d Dept. 1997). In determining a motion to re-open testimony, a “trial court should consider whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” Kay Found, 31 AD3d at 501. Based on the facts of this case and in light of the case law favoring the rights of voters to cast their ballots,5 the Court grants the Petitioner’s application to present Ms. G.’s testimony as to her signatures on the Board of Elections records and her absentee envelope. Notably, there was no delay in the proceedings. In fact, Ms. G. was prepared to testify on December 3 and the hearing was not closed when the application was made. Another ballot, Board Exhibit Q, had not yet been opened and counted. As of today, the election has not yet been certified. The application was made shortly after the Court made a ruling on the G. ballot. Petitioners made an offer of proof as to the import of the testimony and have shown why they were unable to present Ms. G. on December 2 — as detailed herein, Ms. G. was ill and not taking calls.6 Certainly, there could have been more efforts to contact her. But, while counsel for the Petitioners made only a handful of calls to Ms. G. and he did not make a record at the time the G. ballot was being reviewed by the Court, Respondents have not shown any real prejudice to them in permitting the testimony. Of course, there needs to be a point in time when litigation concludes. However, based on the factors discussed above, this case was not yet at that point. Petitioners first made application by email to permit the G. testimony and then made a more formal application by way of an Order to Show Cause to renew and/or reargue the Court’s determination as to Exhibit D. While it may be unnecessary to decide this motion given the foregoing, the Court notes the determination is the same. Renewal is granted in the discretion of the Court. Petitioners offer new facts, in the form of Ms. G.’s proposed testimony, which would change the Court’s prior determination. CPLR 2221(e)(2). The Court had ruled that the signatures did not correspond but testimony from the voter is clearly relevant to this issue. See e.g., See Matter of Stewart v. Rockland County Bd. of Elections, 41 Misc. 3d 1238(A) (Rockland Cty Sup. Ct. 2013), aff’d 112 AD3d 866 (2d Dept. 2013). Petitioners have provided a reasonable justification for their failure to present these facts. CPLR 2221(e)(3). A renewal motion “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Jovanovic v. Jovanovic, 96 AD3d 1019, 1020 [2d Dept. 2012]. Respondent Candidates argue that the Petitioners made a “strategic” decision to not call Ms. G. but the Court disagrees. Here, when considered against the backdrop of expediency in which election matters must proceed, Petitioners’ attorney exercised due diligence in attempting to locate Ms. G. in order to ascertain whether she had relevant information to provide to the Court. Again, while it would have been the better course for Mr. Pagano to have made a record as to his attempts to locate this witness before the Court issued its ruling on the ballot, the Court finds that Mr. Pagano’s efforts to contact her were sufficient. Finally, it bears mention that the propriety of this kind of application cannot be challenged by Respondent Candidates as they brought their own renewal/reargument application which is addressed below. Thus, the Court will permit the testimony of Ms. G. and determines that the signatures correspond.7 See Matter of Stewart v. Rockland County Bd. of Elections, 112 AD3d 866 (2d Dept. 2013); Matter of Teets v. Belcher, 42 Misc. 3d 513 (Orange Cty. Sup Ct. 2013). G. Ballot The Court must next determine whether Ms. G.’s absentee ballot can be cast in light of the fact that the ballot envelope appears to have been opened after her December 2 testimony. The Court and all parties examined the envelope on December 2 and it was sealed at that time. However, at some point after the hearing concluded on December 2 and before December 10, the envelope opened while it was in the possession of counsel for the Board of Elections. Counsel for the Board indicated that the Exhibits, which had been given to him after the Court ruled on them, were in the case file on his desk in his office “right in front of him” from December 2nd through the 10th “as the case remained pending.” He stated the file was in the same place and did not appear to have been touched. He was unable to offer an explanation for what happened to the envelope. The voter submitted her absentee ballot, in conformity with the Election Law and in a sealed envelope. Election Law §7-122. She did her part. Through no fault of Ms. G., the envelope was unsealed while in the custody of the Board of Elections attorney. The Elections Law provides that actions by the board of elections should not invalidate an otherwise valid ballot. See Panio v. Sunderland, 4 N.Y.3d 123, 127-128 (2005) (“When a ballot is contested in a judicial proceeding, the court must, after determining that the person who cast the ballot was entitled to vote, order the ballot to be counted ‘if the court finds that ministerial error by the board of elections or any of its employees caused such ballot envelope not to be valid on its face.’” (citing Election Law §16-106 [1]; see also Election Law §9-209 [2] [a] [2]); 9 NYCRR 6210.13(a)(8) (“Ballots that are damaged, torn by the Board of Elections or its agents…as submitted by the voter, shall be manually counted by a bipartisan team of election inspectors and such vote totals shall be added to the canvass of such other valid ballots for the respective office(s) and ballot questions.”). Obviously, the integrity of the envelope is important so that the Board can be sure that the ballot contained therein is the true ballot of the voter. Here, we know that the envelope holds the ballot of Ms. G. based her testimony. She testified with certainty while identifying and authenticating her ballot. She provided sound reasons why she knew the ballot to be hers. Respondent Candidates’ Order to Show Cause On Friday evening, December 17, 2021, Respondent Candidates filed an Order to Show cause seeking renewal and reargument “on the question of dismissing all matter asserted by the Petitioners herein relating to the general election held on November 2 2021….” in short, the application argued that the Petition should be dismissed because Petitioners’ counsel falsely verified the Petition on behalf of Petitioner Douglas J. Giles without his knowledge or authority. According to Respondent Candidates’ attorney, Petitioners’ attorney permitted him to speak with Mr. Giles. As a result of that conversation, counsel came to believe that the verification for the Petition was false. The Court heard testimony from Mr. Giles on December 20, 2021, the return date of the Order to Show Cause. The application to dismiss the Petition is denied. First, this Court did not issue any rulings relative to the sufficiency of the Petition to be renewed or reargued. In any event, even if the Court grants renewal, the testimony of Mr. Giles does not support the allegations of Respondent Candidates. Rather, the testimony of Mr. Giles establishes that he did have knowledge that a petition was being pursued on behalf of the My Millbrook candidates, of which he was part, relative to the counting of the ballots. Consistent with Mr. Giles’ testimony, the original Petition sought only an order to preserve the ballots in order to allow the candidates to review and object to the casting of said ballots. Moreover, even accepting the Respondent Candidates’ allegations as true, they provide no case law demonstrating that the underlying Petition is subject to summary dismissal. Respondent Candidates fail to demonstrate how the commencement of such an action without the knowledge of one of the Petitioner Candidates is fatally defective.8 In addition, Respondent Candidates mischaracterize the language in the verification that was signed by Mr. Pagano. Mr. Pagano did not affirmatively state that he spoke to his clients. Instead, the full sentence reads “Deponent further says that the grounds of his belief as to all matters in the Petition not stated to be upon his knowledge are based upon my investigation and communications with my clients and information provided by the Dutchess County Board of Elections.” Conclusion This Court has no question that the ballot contained in Exhibit D is the lawfully cast ballot of Ms. G. There is no legal ground to disenfranchise this voter. By this decision and throughout these proceedings, this Court has endeavored to ensure the integrity of the ballot at issue as well as the election process as set forth in the Election Law. The absentee ballot marked as Exhibit D shall be cast and canvassed. The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied. Accordingly, it is hereby ORDERED that this Court’s Order staying the certification of the election results for the Town of Washington is hereby vacated; and it is further ORDERED that Petitioners’ application to reopen the testimony is granted as set forth herein; and it is further ORDERED that Petitioners’ motion to renew is hereby granted as set forth herein; the motion for reargument is denied; and it is further ORDERED that the Respondent Candidates’ application for renewal is granted and, upon renewal, it is denied. The application for reargument is denied; and it is further ORDERED that the Commissioners of the Dutchess County Board of Elections shall cast and canvass the affidavit absentee ballot marked as Board Exhibit D and immediately certify the General Election result for the Town of Washington; and it is further ORDERED that Respondent Candidates’ application for a stay is denied. This constitutes the Decision and Order of this Court. Dated: December 22, 2021
