Auerbach v. Suffolk Cnty. Comm. of the Conservative Party, 2019–02019

• Decision Date: 03 April 2019
• Docket Number: 2019–02019,Index No. 5320/18
• Citation: 171 A.D.3d 731,96 N.Y.S.3d 323
• Parties: In the Matter of Kenneth A. AUERBACH, etc., et al., petitioners-respondents, v. SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY, et al., appellants, et al., respondents.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 731

96 N.Y.S.3d 323

In the Matter of Kenneth A. AUERBACH, etc., et al., petitioners-respondents,

v.SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY, et al., appellants, et al., respondents.

2019–02019

Index No. 5320/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 29, 2019

April 3, 2019

DECISION & ORDER

In a proceeding pursuant to Election Law article 16, the Suffolk County Committee of the Conservative Party, the Executive Committee of the Suffolk County Committee of the Conservative Party, and the individual committee officers and executive members named as respondents in this proceeding appeal from a final order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 1, 2019. The final order, after a hearing, denied the appellants' motion to dismiss the petition, granted the petition, invalidated the organizational meeting of the Suffolk County Committee of the Conservative Party held on September 26, 2018, and a certificate of nomination filed thereafter with the Suffolk County Board of Elections, and directed a new organizational meeting in the presence of a monitor.

ORDERED that the final order is modified, on the law and the facts, (1) by deleting the provision thereof denying that branch of the appellants' motion which was to dismiss, for lack of standing, so much of the petition as sought to invalidate the nominations of individuals for various party offices, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provisions thereof granting the petition, invalidating the organizational meeting held on September 26, 2018, and the certificate of nomination, and directing a new organizational meeting in the presence of a monitor, and substituting therefor a provision denying so much of the petition as sought to invalidate the nominations of individuals for various party offices as academic and otherwise denying the petition and dismissing the proceeding; as so modified, the final order is affirmed, with costs to the appellants.

On September 26, 2018, the Suffolk County Committee of the Conservative Party (hereinafter the County Committee) held an organizational meeting to select members to fill vacancies in the County Committee arising after the primaries at which members of the County Committee had been elected (see Election Law §§ 2–106, 2–118[1] ) and to nominate officers for the biennial election cycle then commencing.

The respondent Frank A. Tinari chaired the meeting and conducted the bulk of its business. At the beginning of the meeting, and following the agenda for organizational meetings set forth in article IV, section 1, of the rules of the County Committee (hereinafter the rules), Tinari had attendance reports filed with the secretary, utilizing sign-in sheets. While the rules require that the next action be the "Call of the Roll," Tinari, instead, made a motion to dispense with a roll call for the purpose of establishing that a quorum was present, taking note of the signatures set forth on the sign-in sheets. The rules provide that one-quarter of the whole membership of the County Committee constitutes a quorum. The petitioner Kenneth A. Auerbach and others objected to dispensing with a roll call on whether a quorum was present. Tinari held a voice vote on the motion which, by his ruling, was carried. At the meeting, neither Auerbach nor anyone else disputed the presence of a quorum, and in this proceeding, it is undisputed that a quorum was present.

Tinari proceeded to the next item of business as specified in the rules of the County Committee, the filling of vacancies on the County Committee. Tinari called to the podium various persons who read to the meeting a lengthy list of names of candidates to fill vacancies, by town. During this process, there were repeated objections by Auerbach and others to the effect that vacancies could only be filled by roll call vote of the members of the County Committee elected at the primary election, weighted in proportion to the party vote for governor at the last preceding gubernatorial election in each member's election district (see Election Law §§ 2–104[1] ; 2–118[1] ). However, no rival candidates were nominated, though an opportunity to nominate opposing candidates was provided. The unopposed slate of nominees to fill vacancies was put up for approval by voice vote and, by Tinari's ruling, was elected. Similarly, the rules of procedure adopted by the prior County Committee were adopted by the present County Committee by voice vote, again with interspersed objections by Auerbach and others.

Tinari then called for a motion to nominate a slate of candidates (including himself as Chair) for officers and executive members of the County Committee. After that motion was made and seconded, Auerbach inquired as to whether Tinari would provide for the nomination of officers by only elected County Committee members (thus excluding County Committee members just appointed to fill vacancies), voting by a weighted roll call vote. When Tinari declined to provide for such a procedure, Auerbach stated that, while he had intended to propose a rival slate of candidates, he would not do so. While Tinari repeatedly invited additional nominations, none were forthcoming. Tinari then held a voice vote and declared that the motion to accept the only nominated slate had carried.

Auerbach and others (hereinafter collectively the petitioners) commenced this proceeding pursuant to Election Law article 16, seeking to invalidate the September 26, 2018, organizational meeting, to invalidate the certificate of nomination filed with the Suffolk County Board of Elections (hereinafter the Board of Elections) following the County Committee meeting, and for a new organizational meeting to be held with a court-appointed monitor. The County Committee, the Executive Committee of the County Committee, and the individual committee officers and executive members named as respondents (hereinafter collectively the appellants) moved to dismiss the petition pursuant to CPLR 1001(a), 3013, 3016, and 3211(a), and Election Law § 16–102(1). The Supreme Court held the motion in abeyance, and after a hearing on the petition, the court denied the appellants' motion to dismiss, granted the petition, invalidated the September 26, 2018, organizational meeting and the certificate of nomination filed thereafter, and directed that a new organizational meeting be convened in the presence of a monitor.

Initially, to the extent that the petitioners sought to invalidate the nominations of individuals, including Tinari, for various party offices, the petitioners lack standing to maintain the proceeding. Pursuant to Election Law § 16–102(1), the nomination of a person to a party position may be contested in a court proceeding only by an aggrieved candidate, the chair of a party committee, or a person who has filed objections with the board of elections. Here, none of the petitioners were party chairs, had filed objections, or put themselves forward as candidates for election to party offices at the subject County Committee meeting (see Matter of Dekom v. Mondello, 110 A.D.3d 799, 800, 971 N.Y.S.2d 893 ). Accordingly, that branch of the appellants' motion which was to dismiss so much of the petition as sought to invalidate the nominations of individuals for various party offices should have been granted.

On the other hand, with regard to so much of the petition as sought to invalidate the September 26, 2018, organizational meeting and to challenge the manner in which vacancies on the County Committee were filled, members of a county committee "have standing to challenge the manner in which vacancies on [a] County Committee [are] filled at [an] organizational meeting" ( Matter of Klein v. Garfinkle, 12 A.D.3d 604, 605, 786 N.Y.S.2d 77 ; see Matter of Katagas v. Berman, 21 A.D.3d 913, 914, 800 N.Y.S.2d 519 ; Matter of Bauman v. Fusco, 21 A.D.2d 470, 472, 251 N.Y.S.2d 166 ). Since each of the petitioners is an elected member of the County Committee, they have standing to maintain this portion of the proceeding. We also disagree with the appellants' contention that the petitioners were required to name and serve the individuals who were selected to fill vacancies at the September 26, 2018, organizational meeting as necessary parties to this proceeding. No written list of such persons was provided at the meeting, the addresses of such persons were not stated at the meeting, and no list of such persons was set forth in the certificate of nomination filed with the Board of Elections. Given the impracticability, if not impossibility, of properly identifying and joining all of such individuals, particularly given the brief time limits applicable to Election Law cases, we decline to view such persons as necessary parties (see Matter of Brayman v. Stevens, 54 Misc.2d 974, 978–979, 283 N.Y.S.2d 933 ...