Rodriguez v. Westchester Cnty. Bd. of Elections

Decision Date27 February 2015
Docket Number1229/2015
Citation2015 N.Y. Slip Op. 25063,5 N.Y.S.3d 826,47 Misc.3d 956
PartiesCirilo RODRIGUEZ, Petitioner, v. WESTCHESTER COUNTY BOARD OF ELECTIONS, Reginald LaFayette, Douglas Colety, Jeannie Palazola, Nancy Meehan, Janet Gandolfo, Karin T. Wompa, Bruce Campbell, Mary C. Linder, and Jose A. Chevere, Jr., Respondents.
CourtNew York Supreme Court

Michael A. Deem, Esq., Sussman & Watkins, Ossining, for Petitioner.

Anthony Mamo, Esq., Mary C. Linder, Jose A. Chevere, Jr., Sleepy Hollow, for respondents Karin T. Wompa, Bruce Campbell.

Robert F. Meehan, Westchester County Attorney, Carol F. Arcuri, Deputy County Attorney, of Counsel, Counsel for Westchester County Board of Elections, White Plains, for Reginald LaFayette, Douglas Colety, Jeannie Palazola, Nancy Meehan.

Janet A. Gandolfo, Esq., Sleepy Hollow, pro se.

Opinion

CHARLES D. WOOD, J.

The parties' documents1 were read in connection with petitioner's requested relief to declare null and void each nomination for village office of the Village of Sleepy Hollow arising from the Democratic Party Caucus, to wit: the Mayor and three Trustees as reflected in the Certificate of Nomination signed and dated January 22, 2015, and other relief in connection therewith. The court also considers respondents' Karin T. Wompa, Bruce Campbell, Mary C. Linder and Jose A. Chevere, Jr., (“moving respondents) motion to dismiss, and pro se respondent Janet Galdolfo's motion to dismiss (“Galdolfo”).

Upon the foregoing papers and the proceedings before this court, the motions to dismiss, specifically on the issue of whether petitioner failed to properly commence this proceeding by verified petition as required by Article 16 of the Election Law, are determined as follows:

The petitioner commenced this proceeding by petition and order to show cause, signed on February 4, 2015. Service was to be completed upon each respondent on or before February 4, 2015.2 The petition did not allege that the petitioner is a member of the Democratic Party, but that he is a duly qualified voter in the State of New York.3 Petitioner's Exhibits “2” and “ 3” likewise state that petitioner is an enrolled voter in the Town of Mount Pleasant, not that he is a Democrat. In their cross motions, moving respondents raised the issue of the lack of a proper verified petition on February 8, 2015. WCBOE and the four named commissioners filed an answer on February 6, 2015, asserting as a defense the lack of a verified petition. Respondents Gandolfo individually, and Wompa, Campbell, Linder, and Chevere, Jr. as a group, interposed their answers on February 8, 2015, asserting the defense of the unverified petition. In addition, when the parties appeared before this court on February 9, 2015, they raised the issue of verification of the petition, and whether the defect—if there is one—is fatal to the petition. Petitioner argues that the WCBOE defendants' Answer is a ity as it was not verified, and that since it did not assert the lack of verification of the petition immediately or within 24 hours of being served, WCBOE has waived that defense.4

The Curious Origins of the 24–hour Deadline

Generally, “where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence (emphasis supplied) to the attorney of the adverse party that he elects so to do” (CPLR 3022 ). While courts frequently mention that due diligence has been found to mean “immediately” or within 24 hours, it is extraordinarily rare that a court actually imposes a 24–hour deadline, and curiously, not one court that has done so cites to the actual origin of the alleged rule.

The Second Department has cited Matter of Ladore v. Mayor & Bd. of Trustees of Vil. of Port Chester,

70 A.D.2d 603, 604, 416 N.Y.S.2d 280 [2d Dept.1979] for the proposition that due diligence has been interpreted as ‘immediately’ and within 24 hours” (see Master v. Pohanka, 44 A.D.3d 1050, 845 N.Y.S.2d 376 [2d Dept.2007] ). However, in Ladore, the Second Department did not create or adopt a 24–hour deadline, and in fact the time elapsed in rejecting the pleading was not what the court ruled on. The facts in Ladore were that the respondents were aware of the verification flaw on the return date of the order to show cause in Supreme Court, which was between three and five days after service. The respondents only raised lack of personal service at that appearance. The next day, when it was too late for the petitioner to re-file, respondents attempted to raise the verification issue, which the Second Department found they had waived. It was clearly not the three to five days that were the issue, but rather the clear gamesmanship employed by respondents, in making a motion to dismiss on service, then only raising the verification issue in their Answer, seeking to take advantage of the statute of limitations that expired in the interim.

The Fourth Department became the first court to impose a 24–hour deadline in O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d 684 [4th Dept.1976], which was cited by the Second Department in Ladore . While that case involved a delay of eight days (53 A.D.2d at 315, 385 N.Y.S.2d 684 ), the Fourth Department espoused the 24–hour deadline, citing State v. McMahon, 78 Misc.2d 388, 356 N.Y.S.2d 933 (Albany Co. 1974) (also cited in Ladore ). There, the Attorney General of the State of New York brought a motion to compel a convicted forger to verify his answer to a civil complaint, or to have the court treat the unverified answer as a ity. Citing Westchester Life, Inc. v. Westchester Mag. Co., 85 N.Y.S.2d 34 [Supreme Court, N.Y. Co., 1948], the Supreme Court in McMahon did state that due diligence had been held to be 24 hours, but explicitly did not apply that “rule,” finding that the State's underlying motion to compel was otherwise without merit (78 Misc.2d at 389, 356 N.Y.S.2d 933 ).

The Third Department applied the 24–hour deadline, in one very strict instance (Ireland v. Town of Queensbury ZBA, 169 A.D.2d 73, 571 N.Y.S.2d 834 [3d Dept.1991] ), reversing the Supreme Court's dismissal of an unverified Article 78 petition. In so doing, the authority it cited was its own decision in Lentlie v. Egan, 94 A.D.2d 839, 463 N.Y.S.2d 542 [3d Dept.1983], aff'd 61 N.Y.2d 874, 474 N.Y.S.2d 467, 462 N.E.2d 1185 [1984], in which the court also espoused the 24–hour rule, but stated that the improper verification issue arose from petitioner's “urgent prayer advanced in his brief and at oral argument” before the Third Department. Not surprisingly, the defense was deemed waived at that stage. The Lentlie court's only support cited for the 24–hour deadline was Siegel's Practice Commentaries. Notably, with respect to the 24–hour deadline, until 2004, Professor Siegel only referenced Westchester Life, Inc. v. Westchester Mag. Co. (David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3022:2 [1991] at 310; but see David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3022:2, 2006 Pocket Part at 139,140: (“The (Court of Appeals) cites many cases going this way and that on the matter and several treatments by this writer showing the inconsistencies”)). Despite Siegel's update, his successor has fallen back into the Westchester Life trap, citing it first in his CPLR 3022:2 analysis (Patrick M. Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3022:2 [2010] at 35).

Three years after Ireland, the Second Department first applied a strict 24–hour rule in Theodoridis v. American Transit Insurance Co., 210 A.D.2d 397, 620 N.Y.S.2d 984 [2d Dept.1994]. Ironically, this case is frequently cited for the proposition that the court looked at the “particular circumstances of the case (see Miller v. Board of Assessors, 91 N.Y.2d 82, 666 N.Y.S.2d 1012, 689 N.E.2d 906 [1997] ; 3170 Atlantic Ave. Corp. v. Jereis, 38 Misc.3d 1222(A), 2013 WL 597903 [N.Y. City Civ.Ct.2013] ; 562 West 149th St. HDFC v. Rodriguez, 5 Misc.3d 1020(A), 2004 WL 2752468 [N.Y. City Civ.Ct.2004] ). In so doing, the Second Department relied upon only cases from other departments (Ireland, 169 A.D.2d 73, 571 N.Y.S.2d 834 [3d Dept.] ; Lentlie, 94 A.D.2d 839, 463 N.Y.S.2d 542 [3d Dept.] ; McMahon, 78 Misc.2d 388, 356 N.Y.S.2d 933 [Sup.Ct. Albany Co.] ; Nafalski v. Toia, 63 A.D.2d 1039, 406 N.Y.S.2d 140 [3d Dept.1978] [13–day delay, no mention of 24–hour rule]; Houghwot v. Town of Kiantone, 69 A.D.2d 1011, 416 N.Y.S.2d 677 [4th Dept.1979] [no facts given regarding delay, no mention of 24–hour rule]; Ames Dept. Stores v. Assessor of Town of Concord, 102 A.D.2d 9, 476 N.Y.S.2d 222 [4th Dept.1984] [28–day delay, 24–hour rule mentioned] ). The last of these cases cites the 24–hour rule back to the Second Department decision in Able Breaking Corp. v. Con Edison, 88 A.D.2d 649, 450 N.Y.S.2d 511 [2d Dept.1984], in which there is no mention or discussion of a 24–hour rule, but rather, an eight-day delay was deemed “unreasonable under the circumstances.” As discussed (supra ), the Third Department in Ireland and Lentlie relied upon Siegel's Commentaries, which, along with the Supreme Court in McMahon, relied upon Westchester Life.

Thus, the only source of three Appellate Divisions' application of the 24–hour rule comes from the New York County Westchester Life v. Westchester Magazine decision from 1948. Surprisingly, in that case, the court specifically did not rule based on the timing of the objection to the verification. The opening sentence of the court's decision states: “Apart from the fact that the answer, claimed not to have been verified, was not returned within twenty-four hours, there is the more serious objection to the granting of plaintiff's motion to enter judgment on default.” The court noted that the returned answer was insufficient because “it should have stated that the ground of the return was that the...

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3 cases
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • 5 Julio 2017
    ...not one court that has done so cites to the actual origin of the alleged rule." Rodriguez v. Westchester County Bd. of Elections (47 Misc.3d 956, 958, 5 NYS3d 826, 828 [Sup Ct Westch Co 2015] )(rejecting petitioner's claim that by failing to assert lack of verification within 24 hours of be......
  • Davidson v. Sollazzo
    • United States
    • New York Supreme Court
    • 6 Septiembre 2019
    ...'has never specified a uniform time period by which to measure due diligence' in interpreting CPLR §3022" (Rodriguez v. Westchester County Bd. of Elections, 47 Misc3d 956, 961 [Sup Ct, Westchester County 2015] quoting Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). In Matter of O'Ne......
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • 5 Julio 2017
    ...not one court that has done so cites to the actual origin of the alleged rule." Rodriguez v Westchester County Bd of Elections (47 Misc 3d 956, 958, 5 NYS3d 826, 828 [Sup Ct Westch Co 2015])(rejecting petitioner's claim that by failing to assert lack of verification within 24 hours of being......
1 books & journal articles
  • Pleadings
    • United States
    • James Publishing Practical Law Books New York Civil Practice Before Trial
    • 2 Mayo 2018
    ...the credibility of the party in its pleadings and testimony given, if any.” [ See Rodriguez v. Westchester County Board of Elections , 47 Misc3d 956, 5 NYS3d 826 (Sup. Ct. Westchester Co. 2015).] IN PRACTICE: Avoiding waiver Certainly the safest way to show due diligence is by serving the n......

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