Matter of Sasson v. Trikas, 2009 NY Slip Op 31926(U) (N.Y. Sup. Ct. 8/17/2009)
| Decision Date | 17 August 2009 |
| Docket Number | Petition Cal. No: 6.,Index No: 20318/09. |
| Citation | 2009 NY Slip Op 31926 |
| Parties | In the Matter of the Application of ISAAC SASSON, aggrieved candidate and objector Petitioner-Candidate, and JAMES TRIKAS, Objector v. BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Respondent-Board, and CONSTANTINE E. KAVADAS, Respondent-Candidate, for an order pursuant to the Election Law declaring invalid the petition purporting to designate the aforesaid respondent as candidate for the public office of Member of the City Council from the 20th Council District, County of Queens, City and State of New York, in the Democratic Primary to be held on September 15, 2009, and enjoining the Respondent Board from placing the name of said respondent-candidate upon the primary ballot to be used in said primary election. |
| Court | New York Supreme Court |
This is a special proceeding testing the validity of designating petition involving Constantine E. Kavadas ("respondent Kavadas"), a candidate for the New York City Council, 20th Council District, City of New York. Petitioner Isaac Sasson ("petitioner"), a candidate for the same councilmanic seat, and James Trikas, objector, seek an order, inter alia, invalidating designating petitions filed with the Board of Elections in the City of New York ("respondent Board") on behalf of respondent Kavadas and enjoining respondent Board from placing him on the September 15, 2009 Democratic Primary Ballot. The Order to Show Cause and petition seek to invalidate the designating petition of respondent Kavadas on the ground that respondent Board may have made sufficient errors in its original determination by failing to find additional signatures which should be ruled invalid; 900 valid signatures are required to meet threshold to be place on the ballot for the councilmanic seat. Petitioner also alleged that the designating petitions are permeated with fraud both of the part of respondent Kavadas and another subscribing witness. The matter was set down for a hearing on the petition to dismiss, which was held August 11, 12 and 13, 2009.
At the beginning of the hearing, respondent Kavadas moved for an order dismissing the petition on several grounds. First, he contends that this Court lacks jurisdiction because the Order to Show Cause that was served upon him was not conformed properly, inasmuch as it did not include the insertion of "July 30, 2009," as the service deadline for the provision which allowed for service by overnight mailing. The second basis for dismissal is the contention that the fraud claims were not pled with the requisite specificity. The third, and last ground upon which respondent Kavadas seeks dismissal is based on the contention that he was not given adequate notice of the additional objections. This Court considered argument on the record with regard to the oral application of respondent Kavadas, decision thereon was reserved, and subsequent thereto, the parties were granted leave to proffer written submissions in support of their respective positions. As a result, petitioner submitted a Memorandum of Law and respondent Kavadas proffered Respondent Outline of Cases, deemed Court Exhibits "2" and "3,"respectively, setting forth their arguments in support of their applications, both oral and written, pending before this Court.
With regard to the lack of proper conformity issue, the Order to Show Cause provided several alternative methods of service, two of which were employed by petitioner, to wit, the mailing of a copy to respondent Kavadas' residence, and affixing a copy to the outer door of his residence. As that service was effective to obtain personal jurisdiction over respondent Kavadas, petitioner's failure to properly conform the copy of the Order to Show Cause by inserting the date for which service by overnight delivery was to be effected, neither is fatal to this application nor divests this Court of
personal or subject matter jurisdiction, as argued by respondent Kavadas.
As to the contention that the petition lacks the requisite specificity, it is beyond cavil that a claim of fraud must be pled with specificity. See, Robinson v. Edwards, 54 A.D.3d 682 (2nd Dept. 2008); Hennessey v. DiCarlo, 21 A.D.3d 505, 506-507 (2nd Dept.2005); Waugh v. Nowicki, 10 A.D.3d 437 (2nd Dept. 2004); Oberle v. Caracappa, 133 A.D.2d 202 (2nd Dept. 1987). The specificity requirement, however, may be met by "reference in [the] pleading to the objections and specifications of objections filed with respondent Board of Elections, coupled with the general statements in the petition of the types of improprieties on which petitioner intended to base [his] challenge." Oberle v. Caracappa, supra. 133 A.D.2d 202 (2nd Dept. 1987). Here, the petition alleges, inter alia, that subscribing witnesses permitted people to sign the names of others, signed witness sheets that were not signed in their presence, and created an atmosphere of fraudulent behavior. Specifically, paragraph 4 "g" and "h," of the petition state, in pertinent part, the following:
(g) the candidate Constantine Kavadas himself engaged in the fraud which permeates the petition, for example, he permitted people to sign the names of others on the petition sheets which he himself collected, signed as a subscribing witness sheets that were not signed in his presence, and created an atmosphere permeated with fraud which encouraged others to do the same. The signatures candidate Kavadas collected as subscribing witness also include an obvious forgery, made all the more obvious by the fact that the same purported signatory appears to have signed the same petition on a sheet subscribed to by a different witness, and that this other signature does in fact match that on the voter registration card, while the one the candidate collected does not.
(h)Among the other individuals influenced to commit fraud by the candidate, and committing fraud in a pattern established by the candidate is subscribing witness George Theodoridis, whose pages are permeated with forged signatures, names signed by others, and names signed or written not in his presence.
Each allegedly forged or questionable signature was identified in the specifications of objections. Although the grounds listed in the petitioner's pleading arguably were asserted in general terms, the specifications were incorporated by reference. Thus, notwithstanding respondent Kavadas' contentions to the contrary, the pleadings and specification combined together possessed the required specificity, and were sufficient "to apprise the candidate of the allegations being made against [his] designating petition." Robinson v. Edwards, 54 A.D.3d 682 (2nd Dept. 2008). See, Hennessey v. DiCarlo, 21 A.D.3d 505, 506-507 (2nd Dept.2005); Waugh v. Nowicki, 10 A.D.3d 437 (2nd Dept. 2004); Oberle v. Caracappa, supra.
Finally, respondent Kavadas argues that he was not given adequate notice of the additional
objections, referred to in the hearing transcript as the "amended specifications," which he contends in Respondent Outline of Cases that the "additional objections [are] on items previously not objected to in the first set of petitioner's objections." He asserts that the amended specifications were served by mail on August 10, 2009, and personally served upon him just prior to the calendar call on August 11, 2009. Respondent Kavadas asserts that as such service did not afford adequate notice, the petition should be stricken. In support of this contention, he proffers the Matter of Venuti v. Westchester Board of Elections, 43 A.D.3d 482 (2nd Dept. 2007) and Belak v. Rossi, 96 A.D.2d 1011 (3rd Dept. 1983).
In Venuti, the petitioner commence the underlying proceeding to invalidate a designating petition of respondent candidate where five signatures in the petition to invalidate were inaccurately identified in the petitioner's objections filed with the Westchester Board of Elections. In reversing the final order and affirming the Supreme Court's findings of fact with respect to the five challenged signatures, the Appellate Division, Second Department, found the following :
The Supreme Court, upon reviewing the merits of the proceeding in the alternative, properly determined that five of the signatures on Scattaretico-Naber's designating petition should be stricken as duplicative of earlier signatures on the designating petition of another candidate for the same public office. As a result, Scattaretico-Naber's designating petition does not contain the requisite number of valid signatures, and must be invalidated. Scattaretico-Naber contends that because the petitioner inaccurately identified the line or page numbers of the five signatures in question in presenting his objections to the Westchester County Board of Elections, the Supreme Court should not have entertained his petition, which did properly identify the five challenged signatures. The Supreme Court, however, has jurisdiction to entertain objections to signatures on designating petitions, even where an objector asserts "grounds other than those asserted before the Board of Elections" (Matter of Smith v Marchi, 143 AD2d 325, 325 [1988]; see Election Law § 16-100 [1]; Matter of Flowers v Wells, 57 AD2d 636 [1977]). Since the petition filed in the Supreme Court afforded Scattaretico-Naber adequate notice as to precisely which signatures were being challenged, and the grounds for objecting to those signatures, the Supreme Court properly entertained the petitioner's objections (see Matter of Edelstein v Suffolk County Bd. of Elections, 33 AD3d 945 [2006]; Matter of Brotherton v Suffolk County Bd. of Elections, 33 AD3d 944 [2006]).
Further, in Belak, the Appellate Division, Third Department, in a proceeding to invalidate a designation petition, stated the following :
While petitioner is correct in his contention that...
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