Davin v. Felberman

The papers filed and numbered on NYSCEF as 1 through 23 were read and considered in this special proceeding brought by Brittany Davin and Carmel Reilly, registered voters, and Michael V. Lawler, Republican Candidate, (collectively “Petitioners”) seeking an Order: “(1) Declaring insufficient, defective, invalid, null and void the Democratic Party Certificate of Substitution filed with the Rockland County Board of Elections purporting to designate and/or nominate ARON FELBERMAN as a candidate for the purported Public Office of 97th Assembly District, State of New York in the Primary Election to be held on June 28, 2022; and (2) Enjoining, restraining, and prohibiting the Rockland County Board of Elections from executing or allowing the name of ARON FELBERMAN to be printed or placed on the official ballots to be used either at the June 28, 2022 Primary Election for the Public Office of Member of Assembly, 97th Assembly District, State of New York on the Democratic Party Line; or that of any other candidate purporting to fill the vacancy occurring by reason of his disqualification upon the official ballots of said June 28, 2022 Primary Election and/or November 8, 2022 General Election on the Democratic Party Line;” and (3) granting such other and further relief as to this Court may seem just and proper. For an Order Pursuant to Article 1, 6 and 16 of the Election Law, Including Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, and CPLR Section 3001 and Article 78, Declaring Invalid the Democratic Party Certificate of Substitution Purporting to Nominate/Substitute Aron Felberman for the Public Office of Member of the New York State Assembly, 97th Assembly District, New York, in the Primary Election to be Held June 28, 2022, and to Restrain the said Rockland County Board of Elections from Printing and Placing The name Aron Felberman Upon the Official Ballots of Such Primary and/or General Election. DECISION AND ORDER For the reasons which follow, the Petition is granted to the extent that the Certificate Filling Vacancy After Declination a/k/a Certificate of Substitution (“the Certificate”), which purported to designate Respondent Aron Felberman (“Felberman”) as a candidate is declared to be invalid and is hereby nullified. The application of Respondents, Felberman, Michael J. Klatsky (“Klatsky”), Mona Montal (“Montal”), Yitchok Ullman (“Ullman”), Christian Sampson (“Sampson”) and Aron Bineth (“Bineth”), to allow Felberman the opportunity to ballot, as provided for in Election Law §6-146, is denied.¹ Background Petitioners seek an order nullifying the Certificate issued by the Committee on Vacancies appointed in Klatsky’s designating petition (“the Committee”). The Certificate purported to designate Felberman to replace Klatsky as its candidate for the office of member of the Assembly for the 97th Assembly District in the Primary Election on June 28, 2022, and the General Election on November 8, 2022. Petitioners assert that the Certificate filed by the Committee is invalid and suffers from fatal defects which render Felberman ineligible to run for the office. More specifically, Petitioners allege that the Certificate is a nullity because: (1) it contains fewer than the requisite number of signatures of the members of the Committee required for it to be valid; and (2) the signatures of those Committee members who signed the Certificate were not properly notarized, thereby making all the signatures and the Certificate a nullity. Petitioners also challenge whether Felberman’s nomination was to fill a bona fide vacancy, because Klatsky was ineligible to run for the office. Petitioners contend that Klatsky did not meet the minimum residency requirements under the New York State Constitution to be a viable candidate for the office. As such, Petitioners allege that Klatsky’s designating petitions were permeated with fraud, rendering them a nullity. Petitioners assert that, as a result, a substitute candidate could not be designated to run for the office. Facts The underlying facts are not disputed. On April 7, 2022, petitions were filed with the Rockland County Board of Elections (“the BOE”) by which Klatsky was nominated to run for the 97th Assembly District seat in the Primary Election on June 28, 2022. Those petitions designated Respondents Montal, Ullman, Sampson and Bineth as the Committee to Fill Vacancies. On April 14, 2022, Klatsky filed a paper with the BOE declining the nomination. On April 15, 2022, the subject Certificate was filed, designating Felberman as the substitute candidate to run instead of Klatsky. The Certificate was signed by Montal, Ullman and Bineth, but not Sampson. Montal signed the Certificate as a member of the Committee, and also as a notary public, attesting that Ullman and Bineth appeared before her and executed the Certificate. Montal, did not, however, affix her notary stamp or other indicia that she was qualified as a notary. Montal’s signature was not notarized on the Certificate. On April 20, 2022, Petitioners filed a proposed Order to Show Cause, with supporting papers consisting of a Verified Petition and copy of the Certificate, seeking a declaration that the Certificate is “insufficient, defective, invalid, null and void”. The Court signed the Order to Show Cause and set a return date for initial appearances on April 25, 2022. On April 25, 2022, counsel for Petitioners and Respondents, along with the BOE Commissioners and their counsel, appeared before the Court. At the appearance, Petitioners’ counsel limited their challenge to the sufficiency of the Certificate; eschewing the allegations that no vacancy existed due to Klatsky’s alleged ineligibility to run for office in New York. During discussion, Assistant County Attorney, Venita Whidbee-Jordan, Esq., counsel for the BOE, informed the Court that the Commissioners were split on whether the Certificate was valid. Thus, the BOE took no position. Ms. Whidbee-Jordan also advised the Court that in addition to the Certificate filed on April 15, 2022, several other documents were submitted to the BOE on April 19, 2022, and had been, or would be, filed on the date of the Court appearance. These included: (1) a “corrected” copy of the filed Certificate Filling Vacancy After Declaration, now containing Montal’s notary stamp, (2) a second “corrected” copy of the filed Certificate Filling Vacancy After Declaration re-signed by Montal, Ullman and Bineth and notarized on April 19, 2022, by Sharon M. Osherovitz, a person not a member of the Committee of Vacancies, (3) a new Certificate of Substitution by Committee to Fill Vacancies signed by Montal, Ullman, and Bineth and notarized by Ms. Osherovitz on April 19, 2022; (4) a copy of Montal’s notary license and (5) a printout from the NYS licensing website confirming her status as a notary.² Upon these items being submitted to the Court, the Republican Party Commissioner, Patricia A. Giblin, advised the Court that she was unaware of the submission of the additional documents, except for item 1. Ms. Giblin objected to the new items because she had not seen them and had previously voted to sustain the objection to the Certificate. The Democratic Party Commissioner, Kathleen M. Pietanza, advised the Court that she had been instructed by the State Board of Elections to allow the filing of a corrected Certificate along with Montal’s notary identification card. All counsel agreed that because Petitioners had limited their challenge to the validity of the Certificate, an evidentiary hearing was unnecessary, and the matter could be decided as a matter of law. Thus, the Court set a briefing schedule in accordance with the requirements of Administrative Order 2022-0317 of the Appellate Division: Second Department dated March 17, 2022, designating “May 11, 2022, as the day for the hearing of appeals pursuant to the Election Law pertaining to the primary elections to be held on June 28, 2022[, which must] be perfected on or before May 4, 2022…”. Petitioners’ Position Petitioners argue that the Certificate is invalid, because it was not properly signed by a majority of the entire Committee, which consists of four members, as Montal, one of the three members who signed, did not have her signature notarized or append her affidavit to the Certificate. Petitioners further argue that Montal’s signature was disqualified on the ground that she attempted to notarize the signatures of the other two members who signed the Certificate. Petitioners contend that Montal’s acknowledgment of the other two signatures was ineffectual, because she failed to provide her notary title of office, notary identification number, county of qualification, or date of expiration of her commission, and she had a disqualifying beneficial interest in the filling of the vacancy. These defects in the Certificate, Petitioners assert, could not be cured, as a matter of law, after April 15, 2022, the date the Certificate was due to be filed. Petitioners contend that Respondents cannot avail themselves of the opportunity to ballot, because that equitable remedy is available only in the case of technical defects, and it is not an appropriate remedy to address the substantive infirmities at issue with the instant Certificate. Respondents’ Position Respondents argue that this is a case of first impression and that the Court can, and should, overlook what they characterize as ministerial errors. In addition, they assert that even if the Court finds that the notary issues cannot be cured, the Court can use its equitable powers to permit Felberman to request the opportunity to ballot.³ Questions Presented Where a certificate purporting to designate a substitute candidate for elected office does not include a valid notarization, is the certificate valid? Where only two of four members of a committee on vacancies append an affidavit required by Election Law §6-148 and a third member signs the certificate but does not append an affidavit, is the designation of the substitute candidate proper? Can defects in a certificate purporting to designate a substitute candidate for elected office be cured after the deadline date for filing such certificate? Can the Court employ equity to remedy defects in a certificate designating a substitute candidate? Discussion Election Law §6-148 provides, in pertinent part: “1. A vacancy in a designation or nomination caused by declination…may be filled by the making and filing of a certificate, setting forth the fact and cause of the vacancy, the title of the office, the name of the original candidate, if any, and the name and address of the candidate newly designated or nominated. 2. A vacancy in a designation or independent nomination…may be filled by a majority of the committee to fill vacancies shown upon the face of the petition or certificate of the designation or nomination in which the vacancy occurs. 4. If the vacancy be filled by a committee named in a petition or certificate of nomination, the new certificate shall be signed by a majority of such committee…. Appended to the certificate shall be the affidavit of the persons signing the certificate that they were a majority of such committee, or such officers, as the case may be, and that the statements in such certificate are true.” Elec. Law §6-148. Thus, in order for there to be a valid substitution of candidates where the nominated candidate has declined, a certificate (1) “signed by a majority of such committee” must designate the substitute candidate and (2) the certificate must have appended to it an “affidavit of the persons signing the certificate”. Black’s Law Dictionary defines an affidavit as: “A voluntary declaration of facts written down and sworn to by a declarant, usually before an officer authorized to administer oaths.” Black’s Law Dictionary (11th ed. 2019). Executive Law §137 describes the requirements for a notary public to act in that capacity to administer an oath. That statute provides: “In exercising powers pursuant to this article, a notary public, in addition to the venue of the act and signature of such notary public, shall print, typewrite, stamp, or affix by electronic means where performing an electronic notarial act in conformity with section one hundred thirty-five-c of the executive law, beneath their signature in black ink, the notary public’s name, the words “Notary Public State of New York,” the name of the county in which such notary public originally qualified, and the expiration date of such notary public’s commission and, in addition, wherever required, a notary public shall also include the name of any county in which such notary public’s certificate of official character is filed, using the words ‘Certificate filed……County’. “ Unfortunately for the Respondents, the Certificate filed by them on April 15, 2022, fell short of the criteria required by Election Law §6-148. At first glance, the Certificate appears to have been signed by a majority of the Committee, three of the four members. However, for the signatures to be valid, the Certificate must have an affidavit of each member appended. Here, an attempt to notarize only two of the signatures is present, with the third member of the Committee, Montal, attempting to act as the notary. This is where Respondents’ fatal error occurred. The law requires a majority of the members to attest in an affidavit as to their acts. Only Ullman and Bineth went so far as to attempt to attest to their action in the Certificate. Montal appears to have confused her roles and attempted to act both as a Committee member and notary to the others, totally ignoring the fact that her signature also needed to be submitted under oath. Complicating matters, Montal did not adhere to the requirements of Executive Law §137 when she attempted to act as a notary with respect to the required affidavit from Ullman and Bineth. Montal failed to include her official title of notary public and to affix her notary stamp, or otherwise provide her identification number and the expiration date of her office as notary public, to the Certificate. Thus, their best intentions notwithstanding, both Ullman and Bineth’s signatures failed to comply with the statutory requirement of having an affidavit appended. Montal’s signature is wholly unattested. Therefore, Montal, too, failed to comply with the statutory requirement. In Matter of Burgess v. D’Apice, 112 AD2d 1058 [2nd Dept 1985], the Appellate Division rejected the suggestion that exceptions could be made to errors in a notary statement. In Burgess, the sole error assigned to the notary for the designating petition of Edward Fagan, Jr. was the use of the year 1981 rather than 1985. The Court held that defect to be fatal, stating that to “make an exception could only lead to abuse”. 112 AD2d at 1059. The court also found a second designating petition at issue in Burgess, that of Castrenze J. DiCarlo, to contain a fatal defect due to the notary’s failure to affix his notary stamp to the petition. Id. The Appellate Division held that the defect was fatal as it “fail[ed] to adhere to a mandatory requirement as to the content of the designating petition.” Ibid, (citing Matter of Sortino v. Chiavaroli, 59 AD2d 644, affd 42 NY2d 982; Matter of Hunter v. Compagni, 74 AD2d 1000; see, e.g., Matter of Ryan v. Board of Elections of City of N.Y., 53 NY2d 515). The same defect is present in this case. The law is clear that the failure of a notary to include information which would identify them as a commissioner of deeds qualified to administer an oath, such as identification number and the expiration date of their office as notary public, i.e., the information contained on a notary stamp, renders the affidavit a nullity. Fuentes v. Lopez, 264 AD2d 490 [2nd Dept 1999]; see also Streng v. Westchester Bd. of Elections, 49 Misc 3d 116 [Sup Ct, Westchester County 2015]. The Appellate Division more recently confirmed these holdings in Stevens v. Collins, 120 AD3d 696 [2nd Dept 2014], where there was a discrepancy in “[t]he date of the jurat purporting to authenticate the signatures on [an opportunity-to-ballot petition dated in June], whereas the signatures were all dated in July.” Id. at 697. The court held that the discrepancy in the dates was fatal. Id. (citing Matter of Alamo v. Black, 51 NY2d 716, 717; Matter of MacKay v. Cochran, 264 AD2d 699, 700; Burgess, 112 AD2d at 1059); see also Fonvil v. Morse, 172 AD3d 1453 [2nd Dept 2019] (affidavits of service of petition to invalidate, which were notarized by the petitioner were held to be nullities. Petitioner could not validly notarize affidavits of service by which jurisdiction was ostensibly acquired over respondents). The same fatal defects that were present in Burgess and Fuentes are present here. Montal failed to provide any information which would identify her as a commissioner of deeds qualified to administer an oath. Consequently, the signatures of Ullman and Bineth are not valid. The Certificate was fatally defective for the further reason that Montal’s signature was not acknowledged. As a result, the Certificate did not contain any valid signatures, and thus it could not fulfill either the requirement for it to include a majority of valid signatures or the requirement that an “affidavit of the persons signing the certificate” be appended thereto. Accordingly, the attempted nomination of Felberman as a substitute candidate via the Certificate fails. The Later Filed Documents Respondents contend that the later filed documents cure the defects in the Certificate and, consequently, Felberman’s nomination is viable. The Court disagrees. Simply put, documents filed after the expiration of the limitations period are of no consequence and cannot be used to cure papers which were defective. Here, an analysis of the timing involved in filing a Certificate of Substitution is appropriate. Election Law §6-158 provides as follows: “1. A designating petition shall be filed not earlier than the thirteenth Monday before, and not later than the twelfth Thursday preceding the primary election. 2. A certificate of acceptance or declination of a designation shall be filed not later than the fourth day after the last day to file such designation. 3. A certificate to fill a vacancy in a designation caused by declination shall be filed not later than the fourth day after the last day to decline. A certificate to fill a vacancy in a designation caused by death or disqualification shall be filed not later than ten days after such death or disqualification or four days before the primary election, whichever is earlier.” Applying this to the primary election of June 28, 2022, the last day to file a nominating petition was April 7, 2022 (the twelfth Thursday before the primary — subsection 1). The last day to filed a certificate of acceptance or declination was April 11, 2022 (subsection 2). The last day to fill a vacancy after a declination was April 15, 2022 (subsection 3). See New York State Board of Elections, 2022 Political Calendar, https://www.elections.ny.gov/NYSBOE/law/ 2022PoliticalCalendar [revised Apr. 1, 2022]. The last day to nominate Felberman was April 15, 2022, the day on which the defective Certificate was filed. In Election Law matters, time limitations are strictly construed and the Court lacks the authority to extend a limitations period established by statute. DeStefano v. Borkowski, 153 AD3d 817 [2nd Dept 2017]. The defect in the notarizations of the Certificate cannot be cured where “the time to amend or correct such petitions had expired…”. Stevens, 120 AD3d at 697-98 (citing Matter of Daverso v. Romeo, 89 AD2d 1054; Matter of Esse v. Chiavaroli, 71 AD2d 1046; Matter of Sortino v. Chiavaroli, 59 AD2d 644, 644 (“To be effective, these affidavits should have been filed with the respondent Board on or before the last day provided by law for filing a designating petition [sic].” (internal citations omitted)), affd 42 NY2d 982; Matter of Lyden v. Sullivan, 269 App Div 942; Matter of Sinon v. Westchester County Bd. of Elections, 29 Misc 3d 496, 504 [Sup Ct, Westchester County]; cf. Matter of Etkin v. Thalmann, 287 AD2d 775, 776). In this case, Respondents did not submit a properly notarized Certificate to the BOE until April 25, 2022, ten (10) days after the April 15, 2022 filing deadline had expired. Respondents failed to timely cure the substantive defects in the Certificate, thus, leaving it invalid and a nullity. Equity Considerations — Respondents’ Request for Opportunity to Ballot Anticipating the possibility that the Court might negate the Certificate, Respondents urged on the initial return date, and in their Memorandum of Law, that the Court exercise its discretion, as a matter of equity, to permit Felberman to proceed by opportunity to ballot pursuant to Election Law §6-164. Respondents assert that if the Court does not do so, no Democratic candidate will appear on the ballot for the 97th Assembly District, thereby ensuring a one-sided race that will anoint Lawler as member of the Assembly. They argue that the Court should prevent such inequity by permitting Felberman the opportunity to ballot. Petitioners submit that the Court cannot employ the equitable remedy requested by Respondents because the nature of the defect in the Certificate is substantive rather than technical. Ample case law exists to support Petitioners’ position. In Harden v. Board of Elections, 74 NY2d 796 [1989], the Court of Appeals, relying on its own precedent in the seminal case Matter of Hunting v. Power, 20 NY2d 680 [1967], discussed the use of the opportunity to ballot to permit a candidate to seek office even after their nominating petition was disqualified. The high Court described the circumstances under which an opportunity to ballot remedy was permissible: “The “opportunity to ballot” remedy fashioned in Matter of Hunting v. Power (20 NY2d 680) was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. (74 NY2d at 797 (emphasis added)).” The Court of Appeals stated that the opportunity to ballot “was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law. That legislatively prescribed process ensures that there is a sufficient level of support among party members eligible to vote for the office to justify placing a particular candidate’s name on the primary ballot or, in the case of a petition under Election Law §6-164, that there is sufficient voter interest to justify holding a primary election by write-in ballot.” Id. at 797. Thus, the Court of Appeals held that “courts should invoke the Hunting remedy only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters.” Ibid. (emphasis added) (citing Matter of Quaglia v. Lefever, 143 AD2d 238, Iv denied 72 NY2d 805; Matter of Santoro v. Kujawa, 133 AD2d 534, Iv denied 70 NY2d 724; Matter of Hochberg v. D’Apice, 112 AD2d 1067, affd 65 NY2d 960). Montal’s errors in attempting to notarize Ullman and Bineth’s signatures by failing to affix her notary stamp or otherwise validly identify herself as a notary public, and by failing to have her signature notarized, are substantive defects. Stevens, 120 AD3d at 698 (an “error in the jurat…cannot be considered merely technical”); Fuentes, 264 AD2d 490; Burgess, 112 AD2d at 1059; see also Streng, 49 Misc 3d 116. Had Montal “stated [her] identification number[] and the expiration date of [her] office[] as notar[y] public”, but merely failed to identify herself as a notary, that would have been a technical defect. Matter of Marchionda v. Casella, 153 AD3d 1133, 1134 [4th Dept 2017], Iv denied 29 NY3d 915 [2017] (citing Matter of Hudson v. Bd. of Elections of City of N.Y., 207 AD2d 508, 509 [1994]; see Matter of Kolken v. Mahoney, 49 AD2d 798, 798 [1975], revd on other grounds 37 NY2d 787 [1975]). In any event, even if that defect in Montal’s jurat could be overlooked and the two signatures Montal attempted to notarize were validated, Montal’s failure to have her own signature notarized means that her signature was not valid and the Certificate was signed by only two members of the Committee; one short of a majority. The resulting failure of the Certificate to meet the requirement that it be signed by a majority of the Committee is a substantive defect. Where the defect concerns “a matter of prescribed content”, it cannot constitute a technical defect, which only goes to “details of form”, and ‘”there must be strict compliance with statutory commands as to matters of prescribed content’.” Avella v. Johnson, 142 AD3d 1111, 1112 [2nd Dept 2016] (citing Matter of Hutson v. Bass, 54 NY2d 772, 774 [1981]; see Matter of Stoppenbach v. Sweeney, 98 NY2d 431, 433 [2002]; Matter of Alamo v. Black, 51 NY2d 716, 717 [1980]; Matter of Rutter v. Coveney, 38 NY2d 993, 994 [1976]; Matter of DiSanzo v. Addabbo, 76 AD3d 655, 656 [2010]; Matter of Vassos v. New York City Bd. of Elections, 286 AD2d 463, 464 [2001]; Matter of DeBerardinis v. Sunderland, 277 AD2d 187, 188 [2000]). As discussed above, neither the substantive defect in Montal’s jurat or the failure to provide signatures of a majority of the Committee was timely cured. Where there are substantive defects which invalidate a designating petition or certificate of substitution, “the exceptional equitable remedy” of an opportunity to ballot will not lie. Roberts v. Work, 109 AD3d 681, 682 [3rd Dept 2013] (quoting Harden, 74 NY2d at 798); see also Griffin, 131 AD3d 631;⁴ Garrow, 112 AD2d 1104; Hunting, 20 NY2d 680. Accordingly, Respondents’ application for such remedy must be denied.⁵ Summary of Determinations For the reasons set forth above, it is ORDERED that the Petition is granted to the extent that the Certificate Filling Vacancy After Declination a/k/a Certificate of Substitution (“the Certificate”), which purported to designate ARON FELBERMAN as a candidate is declared to be invalid and is hereby nullified; and it is further ORDERED, that the application of Respondents Felberman, Klatsky, Montal, Ullman, Sampson and Bineth to allow Felberman the opportunity to ballot, as provided for in Election Law §6-146 is denied; and it is further ORDERED that the Rockland County Board of Elections is hereby enjoined, restrained and prohibited from causing, permitting or allowing the name of ARON FELBERMAN to be printed or placed on the official ballots to be used at the June 28, 2022 Primary Election for the Public Office of Member of Assembly, 97th Assembly District, State of New York on the Democratic Party Line. The foregoing constitutes the Decision and Order of the Court. Dated: April 29, 2022