Kelley v. Lynaugh

• Decision Date: 20 December 2013
• Citation: 112 A.D.3d 862,2013 N.Y. Slip Op. 08524,979 N.Y.S.2d 601
• Parties: In the Matter of Chris Ann KELLEY, petitioner, v. Barbara LYNAUGH, et al., respondents. (Proceeding No. 1) In the Matter of Barbara Lynaugh, petitioner, v. Chris Ann Kelley, et al., respondents. (Proceeding No. 2) In the Matter of Constance M. Kepert, appellant-respondent, v. Michael A. Loguercio, Jr., respondent-appellant, et al., respondents. (Proceeding No. 3).
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 862

979 N.Y.S.2d 601

2013 N.Y. Slip Op. 08524

In the Matter of Chris Ann KELLEY, petitioner,

v.Barbara LYNAUGH, et al., respondents. (Proceeding No. 1)

In the Matter of Barbara Lynaugh, petitioner,

v.Chris Ann Kelley, et al., respondents. (Proceeding No. 2)

In the Matter of Constance M. Kepert, appellant-respondent,

v.Michael A. Loguercio, Jr., respondent-appellant, et al., respondents. (Proceeding No. 3).

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

Dec. 20, 2013.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In three related proceedings pursuant to Election Law article 16 to preserve for judicial review certain ballots cast in a general election for the public offices of, inter alia, Councilmember, 4th Council District, Town of Brookhaven, held on November 5, 2013, and to contest the casting and canvassing of those ballots or the refusal to cast and canvass those ballots, Constance M. Kepert appeals, as limited by her brief, from so much of a final order of the Supreme Court, Suffolk County (MacKenzie, J.), dated December 10, 2013, as, after a hearing, in effect, denied that branch of the petition in Proceeding No. 3 which was to prohibit the casting and canvassing of the ballot designated as Exhibit 2 in that proceeding and directed the Suffolk County Board of Elections to cast and canvass that ballot, and, in effect, denied those branches of the petition which were to direct the casting and canvassing of ballots designated as Exhibits 3, 8, 15, 17, 19, 20, 21, 23, and 24 in that proceeding and directed the Suffolk County Board of Elections not to cast and canvass those ballots, and Michael A. Loguercio, Jr., cross-appeals, as limited by his notice of appeal and brief, from so much of the same final order as, in effect, granted those branches of the petition in Proceeding No. 3 which were to direct the casting and canvassing of ballots designated as Exhibits 6, 12, 13, 14, 16, and 22 in that proceeding and directed the Suffolk County Board of Elections to cast and canvass those ballots.

ORDERED that the final order is modified, on the law and the facts, (1) by deleting the provisions thereof, in effect, denying that branch of the petition in Proceeding No. 3 which was to prohibit the casting and canvassing of the absentee ballot designated as Exhibit 2 in that proceeding and directing the Suffolk County Board of Elections to cast and canvass that ballot, and substituting therefor a provision granting that branch of the petition and directing the Suffolk County Board of Elections not to cast and canvass the absentee ballot designated as Exhibit 2, and (2) by deleting the provisions thereof, in effect, denying those branches of the petition in Proceeding No. 3 which were to direct the casting and canvassing of the ballots designated as Exhibits 3, 15, 19, 20, 21, 23, and 24 and directing the Suffolk County Board of Elections not to cast and canvass those ballots, and substituting therefor a provision granting those branches of the petition and directing the Suffolk County Board of Elections to cast and canvass the ballots designated as Exhibits 3, 15, 19, 20, 21, 23, and 24; as so modified, the final order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

“A vote for any candidate or ballot measure shall not be rejected solely because the voter failed to follow instructions for marking the ballot.... A mark is considered valid when it is clear that it represents the voter's choice and is the technique consistently used by the voter to indicate his or her selections” (9 NYCRR 6210.13[A][2], [3]; see Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d 139, 149, 897 N.Y.S.2d 704, 924 N.E.2d 812; Matter of Mondello v. Nassau County Bd. of Elections, 6 A.D.3d 18, 23–24, 772 N.Y.S.2d 693). Contrary to the contention of Constance M. Kepert, the petitioner in Proceeding No. 3, the Supreme Court did not err in determining that the inconsistent and extraneous markings on the absentee ballot designated as Exhibit 8 rendered it impossible to determine the voter's intent ( see9 NYCRR 6210.13[A][2], [3]; Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d at 149, 897 N.Y.S.2d 704, 924 N.E.2d 812; cf. Matter of Mondello v. Nassau County Bd. of Elections, 6 A.D.3d at 24, 772 N.Y.S.2d 693). Thus, the court properly, in effect, denied that branch of the petition in Proceeding No. 3 (hereinafter the petition) which was to direct the casting and canvassing of the absentee ballot designated as Exhibit 8. Based on these same principles, the court properly determined that the absentee ballots designated as Exhibits 12, 13, 14, and 22 were valid because the markings used by each voter clearly and consistently indicated his or her choice on the ballot. Accordingly, the court properly, in effect, granted those branches of the petition which were to direct the casting and canvassing of the absentee ballots designated as Exhibits 12, 13, 14, and 22.

However, the Supreme Court erred in determining that the absentee ballots designated as Exhibits 19, 20, 21, and 23, and the affidavit ballot designated as Exhibit 24, were invalid. Although the markings on these ballots did not strictly comport with the instructions for marking the ballot, they clearly represented each voter's choice ( see Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d at 149, 897 N.Y.S.2d 704, 924 N.E.2d 812).

The Supreme Court also erred in invalidating the absentee ballot designated as Exhibit 15. The voter utilized an absentee ballot because she suffered from a permanent disability. Her absentee ballot envelope was initially signed by another voter, who lived at the same address and cast her own absentee ballot, which was designated here as Exhibit 16, due to her own permanent disability. Thereafter, the erroneous signature on the envelope containing the ballot designated as Exhibit 15 was crossed out and the proper voter's signature was inscribed above it. We find that the proper voter's signature on the absentee ballot envelope containing the ballot designated as Exhibit 15 corresponds to the signature found in her voter registration...