Eisenberg v. Strasser

• Decision Date: 18 August 2003
• Citation: 1 Misc.3d 299,768 N.Y.S.2d 773
• Parties: In the Matter of TONY EISENBERG, Petitioner,<BR>v.<BR>EVELYN I. STRASSER et al., Objectors-Respondents, and COMMISSIONERS OF ELECTIONS OF THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent.<BR>In the Matter of EVELYN I. STRASSER et al., Petitioners-Objectors,<BR>v.<BR>TONY EISENBERG, Candidate, and BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court

1 Misc.3d 299
768 N.Y.S.2d 773

In the Matter of TONY EISENBERG, Petitioner,
v.
EVELYN I. STRASSER et al., Objectors-Respondents, and COMMISSIONERS OF ELECTIONS OF THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent.
In the Matter of EVELYN I. STRASSER et al., Petitioners-Objectors,
v.
TONY EISENBERG, Candidate, and BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent.

August 18, 2003.

[1 Misc.3d 300]

Mitch Alter for petitioner.

Robert Allan Muir for objectors-respondents.

OPINION OF THE COURT

GLORIA M. DABIRI, J.

In these proceedings brought pursuant to article 16 of the Election Law, (1) petitioner candidate Tony Eisenberg under Index No. 26884/03 seeks to declare valid the designating petition purporting to designate him as a candidate in the September 9, 2003 Democratic Party primary election for the public office of Member of the New York City Council from the 47th Council District for the term of office which commences January 1, 2004, and to have his name restored to the ballot, and (2) respondents citizen objectors under Index No. 26896/03 (petitioners-objectors) seek to declare invalid the designating petition on the ground that petitioner is ineligible to be a candidate as designated in his petition because he was not a registered and enrolled voter and did not in fact reside at the address set forth in the designating petition. These proceedings were joined for trial which commenced on August 11 and continued on August 14 and August 18, 2003.

Discussion

On July 31, 2003, the Commissioners of the Board of Elections determined the designating petition to be invalid on the ground that, absent a court order evidencing a name change from "Anatoly Eyzenberg" to "Tony Eisenberg," the person "Tony Eisenberg" is neither a registered nor an enrolled Democrat and, thus, the designating petition of "Tony Eisenberg" should be declared void "ab initio." Petitioner challenges the Board's determination and seeks to declare valid his designating petition.^[1] Respondents argue, inter alia, that petitioner was not a bona fide resident of 621 Brighton Beach Avenue, the address set forth as his residence in the designating petition, and that petitioner "Tony Eisenberg" was not registered as a Democrat under that name. The court will first address petitioner's purported name change from "Anatoly Eyzenberg" to "Tony Eisenberg."

[1 Misc.3d 301]

Common-Law Name Change

The testimony presented at trial revealed that Anatoly Eyzenberg was petitioner's given name at birth and the name under which he emigrated to the United States from Russia in 1980. Petitioner testified that he operated a meat business in Brighton Beach since approximately 1984 and that over the years he has come to be known, in connection with that business, as "Tony" which, he testified, is an American nickname for Anatoly. He further stated that he believes that he was discriminated against in the early years of his business because he was from Russia and that this affected his ability to obtain credit for his business.

Petitioner testified that, on June 2, 2003, he went to the Brooklyn Board of Elections and presented a voter registration application form in which he utilized the name "Tony" as his first name and changed the spelling of his last name from "Eyzenberg" to "Eisenberg." This application is date stamped as having been received by the Board on June 2, 2003. Petitioner testified that he decided to change his name on his voter registration in contemplation of his run for City Council, in order to appear more American and to reduce the likelihood that he would be discriminated against by voters because of his Russian name. Several days later, petitioner received a form letter from the Brooklyn Board of Elections informing him that his application could not be processed because the Board had not received a copy of a court order changing his name.

Mr. Steven Richman, counsel to the New York City Board of Elections, testified that he received correspondence from Ms. Diane Rudiano, Chief of the Brooklyn Board of Elections, seeking clarification of the Board's policy with regard to voter registration applications in which a male was seeking to change his name. The testimony revealed that the Board's policy and procedure had been to automatically...