Destefano v. Borkowski, 558/2017.
| Decision Date | 16 August 2017 |
| Docket Number | 558/2017. |
| Citation | 57 Misc.3d 498,62 N.Y.S.3d 702 |
| Parties | Andrew DeSTEFANO, an aggrieved Republican Candidate for the Office of Putnam County Sheriff, Petitioner, v. James BORKOWSKI, as Chairman, Putnam County Democrat Party Objector, Patrick Perry, Objector, and Donald Smith, Republican Candidate for Sheriff of Putnam County, Respondent–Objector–Democrat Party Chair, Respondent–Objector, and Respondent–Republican Candidate, and Putnam County Board of Elections, Anthony Scannapieco, Jr., Republican Election Commissioner, Catherine P. Croft, Democrat Election Commissioner, Respondents. |
| Court | New York Supreme Court |
57 Misc.3d 498
62 N.Y.S.3d 702
Andrew DeSTEFANO, an aggrieved Republican Candidate for the Office of Putnam County Sheriff, Petitioner,
v.
James BORKOWSKI, as Chairman, Putnam County Democrat Party Objector, Patrick Perry, Objector, and Donald Smith, Republican Candidate for Sheriff of Putnam County, Respondent–Objector–Democrat Party Chair, Respondent–Objector, and Respondent–Republican Candidate, and Putnam County Board of Elections, Anthony Scannapieco, Jr., Republican Election Commissioner, Catherine P. Croft, Democrat Election Commissioner, Respondents.
558/2017.
Supreme Court, Putnam County, New York.
Aug. 16, 2017.
John M. Zarcone, Jr., Esq., Putnam Valley, Attorney for Petitioner.
James W. Borkowski, Esq., Objector, White Plains, Shannon S. Brady, Esq., Sr. Deputy County Attorney, Putnam County Department of Law, Carmel, Attorneys for Respondents Anthony G. Scannapieco, Jr. and Catherine Croft, as Commissioners of the Putnam County Board of Elections.
PAUL I. MARX, J.
This Election Law proceeding was brought by Order to Show Cause filed with the County Clerk on July 31, 2017 and signed by this Court on August 2, 2017. Petitioner, Andrew DeStefano ("DeStefano" or "petitioner") seeks an order: (1) "declaring valid, proper, sufficient and legally effective the Designating Petition heretofore filed with the Respondent Board of Elections, and all signatures contained therein, for each, any and all of the reasons set forth in [the] Petition and its supporting papers, designating Petitioner–Candidate as candidate for the public office of Putnam County Sheriff in the Primary Election to be held on the 12th day of September, 2017"; (2) "Directing, requiring and commanding Respondent Board of Elections to print and/or place the name of Petitioner–Candidate aforesaid as candidate for the public office of Putnam County Sheriff in the Primary Election to be held on the day [sic] 12thof September, 2017, on the official ballots to be used at the public office of Putnam County Sheriff in the Primary Election to be held on the day [sic] 12th of September, 2017;" (3) "Enjoining and restraining Respondent Board of Elections from printing, issuing, or distributing for use during the Primary Election to be held on the 12th day of September, 2017, any and all official ballots used in the said Primary Election upon which the name of Petitioner–Candidate does not appear as candidate for the public office of Putnam County Sheriff"; and (4) "Granting Petitioner–Candidate such other and further relief as this Court deems just and proper."
For the reasons set forth below, the Petition is decided as follows:
FACTS
On July 13, 2017, DeStefano filed a Designating Petition1 with the Putnam County Board of Elections by which he claimed entitlement to be placed on the ballot as a candidate for the office of Putnam County Sheriff in the primary election set to occur on September 12, 2017. The Designating Petition contained 1,302 signatures which exceeded the minimum requirement of 1,000 signatures needed to appear as a candidate in the primary. A corrected Designating Petition, amended at the Board's request only to include page numbers, was filed on July 18, 2017. Exhibit A to OTSC.
On July 17, 2017, James Borkowski ("Borkowski"), a registered voter and Chair of the Putnam County Democratic Party, filed general objections to the Designating Petition. Exhibit B to OTSC. On that same day, Patrick Perry ("Perry"), a registered voter, filed general objections to the Designating Petition. Exhibit C to OTSC.
On July 24, 2017, Borkowski filed specific objections to the Designating Petition, which he titled "Objections Affecting the Entire Petition". In his specific objections, Borkowski contested 918 of the signatures submitted by DeStefano and alleged
that the Designating Petition was therefore ineffective because it lacked the requisite number of signatures for DeStefano to appear on the ballot.
Borkowski submitted the following detailed objections. First, Borkowski contended that "on all pages of the DeStefano Petition, the subscribing witness failed to complete the Witness Identification Information." Next, he asserted that "with regard to all petition pages purportedly witnessed by Thomas Gervasi, Maureen Gervasi, Anne Marie Liebler, and Carlos Perez, each of these witnesses also provided incorrect residence addresses. Since each of these witnesses failed to complete the Witness Identification Information section, their petition pages fail to provide a legally sufficient address of the subscribing witness." He concluded, therefore, that "the petition pages of Thomas Gervasi, Maureen Gervasi, Anne Marie Liebler, and Carlos Perez are all invalid." Exhibit D to OTSC.
In addition, Borkowski raised objections to individual signatures. These objections can be categorized as follows: (1) the signer was not a registered Republican, (2) the signer's address was incomplete, incorrect, or was not an actual address, (3) the purported signature of the voter was not, in fact, the voter's signature, (4) the date signed was incorrect, (5) the signer was not registered to vote, and (6) the signer previously signed a designating petition for the same or a different candidate. Id.
On July 24, 2017, Perry submitted specific objections to the Designating Petition. Generally speaking, Perry's objections mirrored those of Borkowski. He asserted that the failure of the subscribing witness to insert the Town or County (or in some cases both) where required on the petition invalidated the Designating Petition. He also alleged that the Designating Petition was invalid because it lacked page numbers. Further, he contended that: (1) some signers were not registered to vote or were not registered Republicans, (2) some signers did not reside in Putnam County, (3) some of the signatures on the Designating Petition did not match those on the Board's records, (4) some signatures were witnessed on a date that preceded the date on which the signature was stated to have been obtained. Exhibit E to OTSC.
The Board's Actions
On July 26, 2017, the Board reviewed the objections filed by Borkowski and invalidated 729 signatures from the Designating Petition, thereby determining that DeStefano lacked the requisite number of signatures to appear on the ballot. Exhibit F to OTSC.
On July 27, 2017, the Board reviewed the objections filed by Perry and invalidated 282 signatures. Thus, but for the Borkowski objections, DeStefano would have had a sufficient number of signatures to appear on the ballot. Exhibit G to OTSC.
The Instant Proceeding
On July 31, 2017, the instant proceeding was commenced by the filing of a proposed Order to Show Cause together with a Verified Petition ("the Petition") and supporting documents with the Putnam County Clerk's Office. The Order to Show Cause was signed by the undersigned on August 2, 2017, with August 7, 2017 set as the initial appearance date. The Court directed service be made by overnight delivery on all respondents by August 3, 2017.2
This matter was originally randomly assigned, in accordance with the Court's usual procedures, to the Hon. James F. Reitz, A.J.S.C. when it was filed on July 31, 2017. By Order dated August 1, 2017, Judge Reitz recused himself from the matter. Thereafter, the matter was randomly assigned to the Hon. Robert M. DiBella, J.S.C. on August 1, 2017. Because of Justice DiBella's actual involvement in a jury trial, the papers were transferred to this Court on August 2, 2017 and the matter was officially reassigned to this Court by the Hon. Alan D. Scheinkman, Administrative Judge, Ninth Judicial District on August 3, 2017.
On August 7, 2017, counsel for all parties appeared before the undersigned as directed in the Order to Show Cause. Petitioner appeared by John M. Zarcone, Esq. Respondent Borkowski, an attorney, appeared for himself. Respondent Perry appeared self represented. Respondent Sheriff Donald Smith appeared by Michael B. Karlsson II, Esq. Respondents Board and Election Commissioners Scannapieco and Croft appeared by Shannon S. Brady, Esq.
Following a conference with counsel, several stipulations were entered on the record which limited the issues to be decided and streamlined the matter.
The Stipulations
First, petitioner agreed to discontinue the matter against Perry and Sheriff Smith and did so on the record in open court. Thus, the issues concerning whether the Board acted properly in disallowing 282 signatures based on the Perry objections are no longer before the Court.
Next, all respondents stipulated that they had received the Order to Show Cause and supporting papers as directed by the Court.3
Third, as noted above, petitioner's counsel withdrew the "Appendix" attached to the Petition as duplicative of Exhibit D to the Petition and the parties agreed to insert the original records maintained by the Board in its place. In addition, petitioner's counsel clarified that, although the papers submitted in support of the Order to Show Cause refer to a memorandum of law, none was actually submitted.
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