Jacobi v. Murray
| Decision Date | 13 October 2017 |
| Citation | 66 N.Y.S.3d 809,58 Misc.3d 319 |
| Parties | In the Matter of the Application of Dennis JACOBI, Petitioner, v. Linda M. MURRAY, Candidate for the Public Office of Justice of the Supreme Court 9th Judicial District, Dennis Zack, Permanent Chairman of the Independence Party Judicial Convention for the Ninth Judicial District, Susan McGuire, Permanent Secretary of the Independence Party Judicial Convention for the Ninth Judicial District, and The New York State Board of Elections, Peter Kosinski, Douglas A. Kellner, Andrew J. Spano and Gregory P. Peterson, Commissioners, Respondents. |
| Court | New York Supreme Court |
James E. Long, Esq., Attorney for the Petitioner.
Guy T. Parisi, Esq., Attorney for the Respondent Linda M. Murray.
John Ciampoli, Esq., Attorney for the Respondents Dennis Zack and Susan McGuire.
Respondent Linda M. Murray purportedly was nominated for the office of Justice of the Supreme Court for the Ninth Judicial District by the Independence Party of New York Judicial Nominating Convention for the Ninth Judicial District on September 24, 2017, which was thereafter, filed with respondent New York State Board of Elections. By service of an order to show cause dated October 2, 2017, petitioner-objector commenced the instant proceeding pursuant to Section 16–102 of the Election Law, seeking to invalidate the nomination and restraining the Board of Elections from printing and placing Linda Murray upon the Official Ballots of such General Election upon the ground that 1) a quorum of duly elected delegates was not present when Murray was nominated, and 2) that the number of delegates present did not provide for a correct and true proportionality to the votes for governor and the party rules.1 Respondent–Candidate as well as Respondents Dennis Zack and Susan McGuire seek an Order dismissing the proceeding pursuant to Election Law 16–116, as well as CPLR 3211(a)(2), (3), (7), (8), and (10). Respondent New York State Board of Elections Commissioner takes no position.
Respondents Zack and McGuire move to disqualify counsel for the petitioner, stating that Mr. Long is a candidate for judicial office and has "inserted himself into a contested race for the public office of Supreme Court Justice." Respondents argue that "upon information and belief" activity against a candidate for another office is prohibited under "the code applicable to judicial candidates," and as such, counsel should be disqualified. When considering a motion to disqualify counsel, a trial court must "consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." Abselet v. Satra Realty, LLC, 85 A.D.3d 1406, 1407, 926 N.Y.S.2d 178 (3d Dept.2011)citing Parnes v. Parnes, 80 A.D.3d 948, 952, 915 N.Y.S.2d 345 (3d Dept.2011). Respondents have failed to allege any possible prejudice stemming from Mr. Long's representation of the petitioner, and as such, the motion to disqualify is denied.
Moving Respondents have alleged that petitioner lacks standing to bring the instant proceeding. CPLR 3211(a)(3). Specifically, that Petitioner was neither a delegate nor an alternate to the convention, and was not even present at the convention. As such, he was unable to make any objections to the procedures employed, and has not suffered an injury in fact.
Nicolai v. Kelleher, 21 Misc.3d 1140(A)citing Rudder v. Pataki, 246 A.D.2d 183, 185, 675 N.Y.S.2d 653 (3d Dept.1998) and Gilman v. Abagnale, 235 A.D.2d 989, 990, 653 N.Y.S.2d 176 (3d Dept.1997).
Pursuant to Election Law 16–102, a proceeding regarding the designation of a candidate for public office must be instituted in the Supreme Court by an aggrieved candidate or by a person who has filed general and specific objections in accordance with Election Law 6–154(2). Written objections may be filed "by any voter enrolled to vote for such party position." Election Law 6–154(2) ; see also Lucariello v. Niebel, 72 N.Y.2d 927, 532 N.Y.S.2d 839, 529 N.E.2d 176 (1988). An objector must be a qualified voter and timely file objections and specifications as a citizen-objector. Doran v. Scranton, 49 A.D.2d 976, 374 N.Y.S.2d 358 (3d Dept.1975). In this case, the petition states that petitioner Dennis Jacobi resides in the 90th Assembly District in the Ninth Judicial District, and that he is a duly registered and enrolled member of the Independent Party of New York and eligible to vote in the general election on November 7, 2017 for the office of Supreme Court Justice for the Ninth Judicial District. Respondents do not dispute the timeliness of the objection or whether petitioner is a "qualified voter." Accordingly, petitioner has standing as an "objector."
Respondent's analogy to Nicolai v. Kelleher, 21 Misc.3d 1140(A), 2007 WL 5826072 (Sup.Ct., Albany County 2007) is misplaced, as that Court found that the delegates in that case "failed to allege any irregularity or fraud in the voting procedures undertaken by the convention," and as such, had failed to establish that they had suffered an injury in fact. The instant petitioner has alleged an irregularity in the voting procedure. Additionally, as noted by the Third Department in Matter of Nicolai v. Kelleher, 45 A.D.3d 960, 964, 844 N.Y.S.2d 504 (3d Dept.2007), there was no evidence that the delegates "filed objections to the certificate of nomination," which deprived them of standing to maintain the proceeding. There is no dispute that Petitioner in this case timely filed General Objections. Therefore, the motion to dismiss for lack of standing is denied.
Respondents Zack and McGuire move to dismiss the petition as against respondent Zack, alleging that Zack was not served with the papers initiating these proceedings. Counsel for Zack and McGuire makes this allegation based upon information and belief, based upon his conversations with his client.
"In a proceeding pursuant to Election Law § 16–102, the method of service provided for in an Order to Show Cause is jurisdictional in nature and must be strictly complied with." Matter of Nunziato v. Messano, 87 A.D.3d 647, 647, 928 N.Y.S.2d 585 (2d Dept.2011) [internal quotation marks and citations omitted]; see Matter of Rue v. Hill, 287 A.D.2d 781, 782, 731 N.Y.S.2d 506 (3d Dept.2001), lv. denied 97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287 (2001).
The instant Order to Show Cause directed that Mr. Zack be served by mail on or before October 2, 2017 or by delivering the same by personal service on or before October 4, 2017 at 4:00pm. His address is listed as 255 Van Wyck Lake Road, Fishkill, N.Y. 12524. Counsel for the petitioner provides an affidavit of service indicating that he served the Order to Show Cause and Petition with Exhibits on Mr. Zack by Express Mail overnight delivery by bringing same to the U.S. Post Office main office at New Karner Road, Albany, New York 12212 on October 2, 2017 at 2:40pm, postage paid for delivery on October 3, 2017. Counsel also provides a copy of the mailing label.
The Court finds that the method of service utilized here was authorized in the order to show cause. Further, "a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service." Caci v. State of New York, 107 A.D.3d 1121, 1123, 967 N.Y.S.2d 440 (3d Dept.2013) [internal quotation marks and citations omitted]; accord Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 (3d Dept.2013), lv. dismissed 22 N.Y.3d 947, 977 N.Y.S.2d 175, 999 N.E.2d 538 ; see Kurlander v. Willie, 45 A.D.3d 1006, 1007, 845 N.Y.S.2d 180 (3d Dept.2007). A vague and unsupported denial of service is "insufficient to dispute the veracity or content of the [process] server's affidavit." Owens v. Freeman, 65 A.D.3d 731, 733, 884 N.Y.S.2d 791 (3d Dept.2009), lv. dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 93. In this case, the Mr. Zack has not provided his own affidavit denying service, much less a sufficiently detailed affidavit to trigger a traverse hearing. See TD Banknorth, N.A. v. Olsen, 112 A.D.3d 1169, 1170–71, 977 N.Y.S.2d 472 (3d Dept.2013). Accordingly, the motion to dismiss on these grounds is denied.
Next, the moving respondents argue that the Petition was not properly verified pursuant to the provisions of Election Law 16–116. The petition served herein is verified by petitioners' attorney pursuant to CPLR 3020[d][3], and states that "deponent has read the foregoing Petition and knows the contents thereof; that same is true to deponents [sic] knowledge, except the matters therein stated to be alleged on information and belief, and as to those matters deponent believes them to be true." Moving respondents argue that allegations 9, 10 and 12, which all concern whether a quorum was present at the Convention, are made upon personal belief of the petitioner, but there is no dispute that Mr. Long was not present at the convention. As such, respondents argue that the verification purports to attest to facts upon personal knowledge, under penalty of perjury, "that are outside even the possibility of personal knowledge of the deponent verifying the petition."
Respondents argue that a defective verification is no verification, and that the requirements of the Election Law in this regard cannot be waived.
The Court notes that Paragraph 9 is split between personal knowledge and "information and belief", specifically, it is alleged that ...
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