DECISION/ORDER The Petitioner, Terry L. Blosser-Bernardo, filed a Verified Petition seeking an order declaring her Independent Nominating Petition(s) valid under Article 16 of the Election Law and related relief. The Petition was duly served, and proof of service was filed with the Court. Respondents Lori Benjamin and Deanna Senyk appeared and were represented by Michael Mednick, Esq., conflict counsel for Sullivan County Board of Elections. Respondent-Objector George Nikolados appeared pro se in opposition to the Petition, and Petitioner appeared by counsel, Michael A. Burger, Esq. Upon the return date for the Order to Show Cause, counsel and Mr. Nikolados were able to reach an agreement/stipulation on exhibits to be considered by the Court in rendering its decision. Same were uploaded to the NYSCEF system and considered by the Court. The matter is currently scheduled for a continuation of the proceedings on July 6, 2023. For the reasons that follow, the Court determines that the Sullivan County Board of Elections has properly invalidated the Independent Nominating Petitions submitted by Petitioner, has determined that neither of Petitioner’s submissions contained the requisite number of valid signatures, and shall accordingly dismiss the Petitioner’s Petition forthwith. Findings of Fact On June 14, 2023, Petitioner filed an Order to Show Cause with a Verified Petition requesting emergency relief for an order declaring the Independent Nominating Petition valid under Article 16 of the Election Law, accompanied by a Memorandum of Law. On June 21, 2023, Respondents Board of Elections, Senyk, and Benjamin, filed a Verified Answer, Objections and Statement of Facts. Oral argument was held on June 22, 2023. Petitioner is a candidate for the public office of Sullivan County Legislator, District 9. Petitioner submits that over 200 registered voters have signed the Independent Nominating Petition to place Petitioner on the ballot for the November 7, 2023 General Election. May 30, 2023 was the final date for filing Independent Nominating Petitions with the Board of Elections. On May 30, 2023, the Petitioner filed her Nominating Petition, naming Petitioner as a candidate of the People First Party for the position of Sullivan County Legislature with the Respondent Board of Elections. Petitioner avers that the Nominating Petition contains “multiple volumes and names and supports multiple candidates for Sullivan County and local offices.” See 12 Verified Petition. In the Verified Answer, Respondents clarify at 13 that Petitioner, through her representative Len Bernardo, filed a volume of an Independent Nominating Petition that contained 157 signatures (hereinafter “L. Bernardo Petition”). Another individual, Paul Walsh, filed four volumes of Independent Nominating Petitions that contained signature pages for several candidates in different election districts, (hereinafter “Walsh Petition”). Respondents note that although the Independent Nominating Petitions were filed at the same time, they were filed separately by each individual representative, with separate cover sheets, but no master cover sheet. Subsequent to the filing, the Respondent Board of Elections contacted representatives Bernardo and Walsh and indicated that the submitted cover letters were incorrect because they did not indicate the volume numbers. Representatives Bernardo and Walsh amended the cover sheets to combine all the submitted volumes by writing volume numbers 1 through 4 and resubmitted the cover sheets to Respondent Board of Elections. On June 2, 2023, Respondent-Objector, George Nikolados, filed objections to the Nominating Petition. On June 6, 2023, Nikolados filed Specifications of Objections, challenging the number of valid signatures, and alleging that the cover sheet was fatally defective pursuant to Election Law Section 6-134. On June 12, 2023, Petitioner provided responses to the objections. On June 13, 2023, a hearing was held at the Board of Elections. A final determination was made by Respondent Board of Elections which invalidated the Petitioner’s Independent Nominating Petition indicating that there were not enough valid signatures included. Respondent Board of Elections alleges that the filed Petitions failed to attach proper cover sheets for each volume, and did not include a master cover sheet which would connect the volumes together. As such, the Board of Election treated each volume as a stand-alone submission. Petitioner alleges bias, and that the decision of the Board of Elections was arbitrary, capricious and in violation of Election Law Section 16-102. Conclusions of Law Because the Petitions submitted have three candidates that do not appear on each and every sheet of the Petitions submitted, a master cover sheet is required pursuant to 9 NYCRR §6215.4(b), to indicate which signatures apply to which candidate, by indicating the name of the candidate, the identification number or the volume number, and the page number of the applicable signatures. Without a master cover sheet, the separately submitted petitions could not be aggregated by the Board of Elections. Furthermore, the Walsh Petition and the L. Bernardo Petition were filed separately, by separate people with no outward indication that the Petitions were intended to be aggregated, as no master cover sheet identified the intention to do so, as required. The Board of Elections was without authority to assume that it was the intent of the filers to combine Petitions, as their review of each stand-alone Petition is limited to the four corners of each respective Petition. While the Court is mindful that the provisions of Election Law §6-134 “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” in order to avoid the disenfranchisement of voters, a candidate cannot “amend” a master cover sheet that was never filed in the first place as was the case here. Armwood v. McCloy, 109 AD3d 558 (2nd Dept. 2013). Furthermore, the three-day cure provision found in Election Law §6-134(2) which is available to cure technical violations of the regulations, does not apply to the failure to file a master cover sheet, as it is not a mere technical defect. See Seawright v. Board of Elections in City of New York, 35 NY3d 227 (2020) [holding that the failure to timely file required papers in connection with a designating petition, including a cover sheet or certificate of acceptance, is a "fatal defect" that cannot be excused]. Nonetheless, the candidate’s agents were notified in writing (by email) of defects in the Petitions. The Board of Elections was not required to notify the candidate’s representatives that the Petitions did not qualify for aggregation for failure to comply with 9 NYCRR §6215.4(b), as that would require the Board of Elections to assume that the Petitions were intended to be aggregated by the filers without a master cover sheet or any other objective indication of an intent to aggregate the Petitions. The Court has also determined that several invalidated signatures should be reinstated; however, in light of the failure to comply with 9 NYCRR §6215.4(b), aggregation of the signatures is not permitted, and the Petitioner has not submitted enough signatures in each stand-alone submission to meet the 136 valid signature requirement. The signatures that should be reinstated are as follows: “L. Bernardo” Petition Chutawan Miller/Patrick Ripa — This signature should be validated, as the corrected address error was not a material alteration requiring the signer to initial it. Election Law §6-134(6) Victor Millikov — This signature should be validated, as the corrected address error was not a material alteration requiring the signer to initial it. Election Law §6-134(6) Sheet 6 — All five signatures should be validated, as a candidate/witness who otherwise completed her address on other portions of the sheet was sufficient to identify the witness, in spite of her failure to complete the witness identification information below the witness signature line. Arcuri v. Hojnacki, 32 AD3d 658 (3rd Dept. 2006). “Walsh” Petition Sheet 18 — all five (5) signatures should be validated, as the renumbering of the page was not actually an alteration, since the purported alteration did not change what was already written. Invalid Signatures The witness statement on page 27 of the “L. Bernardo” petition is invalid, as a change to the name of the witness is a material change which should have been initialed. All the signatures on that page are invalid. Jonas v. Velez, 65 NY2d 954 (1985). The missing Witness Identification Information on page 25 renders that page invalid pursuant to Election Law §6-132, especially where the witness’s name is also illegible, and he is not a candidate-witness who is sufficiently identified elsewhere on the Petition. The signatures of Diane McDermott and Susan Garcia are invalid, as the wrong Town is listed. Stoppenbach v. Sweeney 98 NY2d 431 (2002). Since the petitions cannot be aggregated, and only seven invalidated signatures have been determined to be valid on the L. Bernardo petition (netting 133), and since only five have been restored on the Walsh petition (netting 40), the Petitioner has not met her signature requirement of the 136 valid signatures for either submission, and the Petitions fail. That in light of the foregoing, it is hereby ORDERED that the relief requested in the Petitioner’s Verified Petition filed on June 14, 2023 is denied and the Verified Petition is dismissed with prejudice; and it is further ORDERED that the hearing on this matter scheduled for July 6, 2023 is removed from the calendar. This shall constitute the Decision and Order of this Court. The original copy of this Decision and Order is being filed on the New York State Courts Electronic Filing (NYSCEF) system. Counsel are not relieved from the provisions of CPLR §2220 regarding service with notice of entry. Dated: July 5, 2023
