Matter of Giovinco v. Lieberman

Matter of Giovinco v Lieberman 2024 NY Slip Op 31574(U) May 1, 2024 Supreme Court, Kings County Docket Number: Index No. 510767/24 Judge: Peter P. Sweeney Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

At the Special Election Part I of the Supretne Court of the State of New York, held in and for the County of Kings, at the.Courthouse, at Adarns Stteet,B rooklyn , New York, on the 1~t day of May, 2024.

PRES ENT: HON. PETER P. SWEENEY~ Justice. -------------. --. ----------- .--- ·---------------· --- . ------- .· .--------X In the Matter of the Application of STEPHANIE A. GIOVIN CO and MAIA Y. YEDIN, Petitioners-Objectors,

-against- IndexN o.: 510767/24 BENJAMIN J. LIEBERMAN, Respondent,-Candidate, BOARD OF ELECTIONS IN THE CITY OF NEWY ORK ' .

For an order~ pursuant to.sections 16-100, 16-l 02, and 16-116 of the· Election Law; declaring INVALID the designating petition ptirpo1tingto designate Respondent~ Candidate forthe Public Office of Judge of the Civil Court of the City of New York, from Kings County, City And State of New York, Assigne d Vacancy # 11, in the June 25, 2024, Republican Party Primary Election, Enjoining Respon dent BOARD OF ELECT IONS IN THE CITY OF NEW YORK from certifying thenani e Of Respondentc.Candidate as.an official candidate for Said Pt1blic Office in said Primary Election, and enjoinin g the BOARD OF ELECT IONS IN THE. CITY OF NEW YORK from printing sa:id name.011 ballots to be used at Said Primary Election.

The· followihg· e-filed papers read herein: NYSCEF Doc Nos.: Notice of Motion/Order to Show Cause/ PetitioniCtos·s Motion ·.ancl Affidavits (Affomatiorts) Annexed.·_·_ _ _ _ _ __ 1 2 4 Opposing Affidavits/Answer (Affirmatfons). _ _ __ 6 7 Affidavits/ Affirmations in Reply · Other I>apers: Letter to Court 17 Upon the foregoing papers and upqn □i'.al argument conducted on the record on April 26; 2024, petitiorters.-objectors Stephanie A . Giovinco and Maia K. Yedin (petitioners,.

objectors) petition for an order declaring invalid ·respohdei1t-candidate Benjamin. J, Li¢ben,nan ,·s designatin g p~tition for the public office of Judge of the Qivil Court of the City of New York, from Kings County, City-and State of New York, Assigned Vacancy #11, inthe June 25, 2024; Republica nPdmary Election. Responden t-candidat e moves for an order. pursuant to CPLR 32i 1 (a), dismissing the petition.

Respondep .t-candida te filed a deS:ignating petition for the ·above noted public office containing 2255 .signatures·. Thereafter , on April 8, 2024, each petitioner;..objector fited with the respondent Board··of Elections "in the City of New York (Board) a gent::ral objection in their own name, and, onAprillS ,2024, at 3:01 p.m., each objector flied s.eparate, but aside from their names and, address~s. identical specificati ons of objections With the Board, 1 These specificati ons ofobjectio ns: identified. HQward Gra1,1b~d, Esq-~ as each petitioners - objector's contact p:erson and :stated that "'[t]he• objector sub1nits the following specifications· 'in support of the General Objection to the "designating petition for'' the responden t-candidat e, and specificall y iderttified the petition volumes at issue. On the same

"i The time and elates noted herein are shown by the Board's time and date stamps visrbie on the docu.ments submitted to·the court.(see NY St Cts Elec; Filing [NYsci:·F) boc Nos. 12 & 16);

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FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024 date, at 3 :02 p;m,, petitioners-objectors filed with the Board a UPS Shipment Receipt dated April 15, 2024;, for a ''next day deHvety" from Howard Gra11bard, Esq., to Benjamin J.

Liebennan, at a residential address in Brooklyn. This receipt showed an expected delivery date of April 16, 2024, and that the package had a billable weight of five pounds. In . . . .

addition, ''KG 73/74," which are the specification identification numbers the Board assigned to petitioners-objectors' respective specifications of objections, was handwritten on the receipt Based on the petitioners-objectors' specifications of objections, Board personnel reviewed the respondent'.°candidate's designating petition and prepared a preliminary clerk's report indicating that there Were 870 valid signatures in the designating petition, which is 630 fewer than needed for place1nent on the ballot for this office (see Electiorr Law § 6-136 [2] [c]). Both petitioners-objectors and the respondent-candidate thereafter appeared by counsel at the Board 'sCommissio ners' hearing conducted on April 23, 2024.2 At the hearing~ counsel for respondent-candidate· stated that he did not have any excepti ans to the clerk's report. However, respondent-candidate's counsel did object to the service of the specifications of objections on the ground that the cover sheets for the two objectors Were attached to one set of specifications ofobjections in· a single envelope and that the proof of service made it impossible to tell which specification.s were served on the

Following the Board's meeting, the respondent-candidate made the instant motion to dismiss, arguing that the Board prnperly rejected the petitioners-objectors' specifications of objections filed with the Board and, as such, the petitioners-objectors no longer had standing to challenge the respondent-c andidate's designating petition in court. In this.

r.egard, the court initially notes that if the Board correctly rejected petitioners-objectors' objections on the ground that petitioner-objectors failed to comply '\vith. the statutory service requirements., petitioner-objectors would not have standin.g to continue this proceeding (see Matter ofSgambati v New York City Bd. of Elections, 224 AD2d 564, 564 [2d Dept 1996]; Matter of Margolis v Larkin, 39 AD2d 95J, 951-952 [2d Dept 1972], ajfd 30 NY2d 876 (1972]; see also Matter of Nicolai v Kelleher, 45 AD3d 960, 963,-964 [3d Dept2007]). The court further notes that it has no authority to review and rule upon the specifications of objections ·011 ade-novo basis as there is no petitioner-aggrieved candidate who is a party to this proceeding. However, just a:s a candidate in an Election Law l 6c 102 . .

proceeding has standing to s.eekjudicia lreview of the Board's actions inrejecting their designating petition based upon an alleged cover sheet defect (see Matter of Rayon v Greenfield, 109 AD3d 920, 921 [2d Dept 2013]; Matter ofKrance v Chiaramounte, 87 AD3d [2d Dept 2011]; Matter of Magelaner v Park, 32 AD3d 487 [2d Dept 2006]), an objector has standing to seek judicial review of the Board's actions in rejecting their specifications of objections based upon an alleged defect in service or otherwise (see

MatterofVa nStockum vCastine;218 AD2d 915,916 [3dDeptl99 5l). Accordingly, the court must determine whether the Board's action in rejecting petitioners-'objectors' specifications of objections based upon the alleged service defect was proper. The court notes that other than a submission ofa letter (NYSCEFD oc. No. 17), the Board has not appeared in this action tQ defond its actions in rejecting the specifications of objections, Election Law § 6-154 (3) (b), which sets forth the requirement s relating to the service ofspecificati ons of objections; provides, in relevant part that, "No specifications of objections to any petition ... will be considered unless the objector filing the specifications personally delivers or mails by overnight mail a duplicate copy ofthe specification to each candidate for public office named on the petition ... Proof of service shall accompany the specifications or be received by the end of two business days following the filing of the specifications, whichever is later." Also relevant to the detennination here are the Board's Designating Petition & Opportunity to Ballot Petition Guidelines for Prim&ry Elections (Guidelines), which, in addition to repeating the requirements of Election Law § 6-154 (3} (b), provide, as is relevant, that: "Acceptable proofof service includes either: 1. Ari affidavit duly notarized from the person who either personally served the specifications or whoduly mailed the·specifications. by overnight mail {stating who was served, when they were served,, what was served, ahd by what means); or 11. An overnight mailing receipt·(including date and time) from the delivei-y service showing the name and address of the overnight mail recipfont.

. . . "Proof of service of specifications must identify the specification it is related by either: L Including the borough artd Gert eral Objection/Sp ecificationnu mber·ort the proof of service; orby 11. Attaching the proof of service to a copy of the first page ofthe specification). Such proof ofservice mustbe filed in person at the Executive Office of the Board, 32 Broadway; 7th Floor, New York, N.Y. 10004" (Board Guidelines H7 & HS).

In addtessingth e parties' contentions, this court finds thatthe petitioners-o bjectors have satisfied the statutory require111ent that the "objector filing the specifications personally delivers or mails by overnight mail a duplicateqop y of the specification to each .candidate for public office named on the petition" (Election Law § 6~ 154 [3] [b]); Here, the objectors jointly mailed one set of specifications of objections to the candidate via UPS overnight mail. Indeed, there is nothing in· the express language of Election Law § 6-154 (3){b} that suggests that it is improper for two objectors, who are aligned and relying on the.identical specification s of objections before the Board, to serve their specification s of objections in a single overnight delivery. Such a view of section {j-154 (3} (b) ig; supported by the statutory rule of' construction providing that, unless suggested otherwise by the context of the language or the object of the statute, words in thesirtgular number include theplllial (seePeople v Mitchell,38 NYJd 408,414 [2022]; see alsoGeneral Construction Law§§ 35, 110). As such, the word "objector'' in the statute can be read in the plural, and under the circumstance s herein where objectors·· .· acting together rely on ic:lentical

Even assuming that the Election Law:§ 154 {3.) (b).-mustb e read to·require each objector to Separa.tely ~erve- copies of their specifications of objections, the Board's ·finding that both objectors failed to comply with that section w&~ incorrect since, arguably, at least orie of the objectors here.indiv iduaiiy served the respondertt·candidate. Furthenno re, any finding that the second objector failed to properly serve th~ responden t-candidat e is ofno consequence since the objectors_' specifications ofC)bjections were identical. .

.Contrary to respondent-cartdidate'-s ass.ertion and the-Board's-finding, the proof of servicehe te also complies with the requireme nts-of Election Law§ i54 (3).(b). Given that the statute itself does not indicate any particular means ofshowin gptoof ofservice, this collrt is not inclined to find that a receipt from a shipping provider would be_ jnsµfficientto.

s.erve a,s such proof. Moreover;- the UPS Shipment receipt showed that the ·objectors_,

--~-----·-- ----------· ·········· . 7 of 9 [* 7] FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024 through the contact person identifie4 on their specific~tions of objections, had mailed the documents to responden t-candidat e with an expected overnightd eliv~ry. 3 Sinc~_this receipt had the date--.and: time_ of the overnight mailing: and had writt~n on it the speci_fi~ation numbers assigned by the- Board, it .also ·complies with the Board's· own Guidelines for acceptable proof of service- (Guideline s § § H7 & .H8).

Accordingly; the court finds that the Board improperly found_petitioners-objectors' service of the.ir specifications of objections to be defective, Furthermo re, given that_·.counsel for respondent:-candidate sj;,ecificall_y stated atthe Commissimiers; meeting that he: had 'no exceptions to the .clerk's report showing that he. had 63'0 fewer-·vaiid signatures than the 1500 signatures required to be placed on the ballot, the Board should have confirmed the · clerk's report based on the specificatfons of objections. The Board thus erred in _placing respondent-:-candidat~ on the ballot. Therefore, the petition to invalidate- is granted, respondent-candidate.'.s designatin g petition is 9eclar~d invalid, and his name should be removed from the ballot- for the June 25, 2024 llepril:>lican primary- (see-· Matter of Van . .

Stockum v Castine, 218 AD2d 915, 916 [3d Dept 1995]). 4 Additionally, respondent- candidate' s motion to clismiss is denied.

5.Given that the statute itself does not indlcate ·any p~rticula( means of·showing.·proof of service, this c;our.t is not inclined to.find that a receipt fr.om a. shipping provider·would-be insufficie·nt to.serve as such· proof.

~-In v1e.w ofthe Board'snnding.tha't s.ervic~..ofthe specifica~iori~ of objections was invalid, and its placing respondent;- candldate .o.n the ballot; thi_s c~u~t':S determin~tion effectively reverses the Board's determfnatio_n within th~ meaning of Electi_on La"',-§ 16-102 (2). Thus, resporldent0i:andidate has :three business days from the date· of this order to coriimenc~ a proceeding to validate pursuant to Election Law§ 16-102 (2).

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Accordingly, it is ORDERED that petitioners-objectors ' invalidating petition is granted; and it is further ORDERED that respondent-candidate's motion to dismiss is denied; and it is further ORDERED that the Board shall remove respondent-candidate Benjamin J.

Liebennan 's name from the ballot for the public office of Judge of the Civil Court of the City of New York, from Kings County, City and State of New York, Assigned Vacancy #11 , in the June 25, 2024, Republ ican Primary Election.

This constitutes the decision, order and judgment of the court.

ENT E R

J.S.C. HON, PETER P. SWEENEY, J.S.C.