Rotanelli v. Westchester Cnty. Bd. of Elections

• Decision Date: 05 August 2013
• Citation: 969 N.Y.S.2d 901,41 Misc.3d 254,2013 N.Y. Slip Op. 23265
• Parties: In the Matter of Michael ROTANELLI, as an aggrieved candidate, and Carol Ann Bengis, as citizen objector, Petitioners, v. The WESTCHESTER COUNTY BOARD OF ELECTIONS, and Ivy Reeves, candidate, Respondents.
• Court: New York Supreme Court

41 Misc.3d 254
969 N.Y.S.2d 901
2013 N.Y. Slip Op. 23265

In the Matter of Michael ROTANELLI, as an aggrieved candidate, and Carol Ann Bengis, as citizen objector, Petitioners,
v.
The WESTCHESTER COUNTY BOARD OF ELECTIONS, and Ivy Reeves, candidate, Respondents.

Supreme Court, Westchester County, New York.

Aug. 5, 2013.

[969 N.Y.S.2d 902]

Ezra Glaser, Esq., Conde Glaser, LLP, New York, for the Petitioners.

Elizabeth Shollenberger, Esq., Schlanger & Schlanger, LLP, Pleasantville, for the Respondent, Ivy Reeves.

Melissa–Jean Rotini, Esq., Office of the Westchester County Attorney, White Plains, for the Respondent, Westchester County Board of Elections.

FRANCESCA E. CONNOLLY, J.

This matter is a proceeding pursuant to Election Law § 16–102, to invalidate a petition designating Ivy Reeves as a candidate in a primary election to be held on September 10, 2013, for the nomination of the Democratic Party as its candidate for the public office of City Council President of the City of Yonkers. For the reasons set forth below, the Court finds that the petitioners' failure to timely serve Reeves in strict compliance with the method of service specified in the order to show cause necessitates dismissal of the proceeding.

FACTUAL AND PROCEDURAL BACKGROUND The Designating Petition

The respondent candidate Ivy Reeves (hereinafter “Reeves”) filed a designating petition with the Westchester County Board of Elections (hereinafter the “Board”), seeking to be placed on the ballot in the primary election to determine the Democratic Party's candidate for the office of Yonkers City Council President.

The Order to Show Cause and Verified Petition

The petitioners commenced this proceeding by the filing of an order to show cause and verified petition alleging fraud and raising specific objections to signatures on the designating petition. The order to show cause was submitted to and signed by this Court on July 22, 2013.¹ The order specified that the return date for the proceeding was July 25, 2013. The second page of the order to show cause contains a “Schedule of Respondents,” listing Reeves and the Board. The schedule also lists, “for identification purposes

[969 N.Y.S.2d 903]

only,” the individual members of the Committee to Fill Vacancies.

The order to show cause specified that “service of this Order and the papers upon which it is granted ” was to be accomplished by delivering “a true copy of this Order and the annexed papers,” in person to the Board, and upon “each of the remaining respondents,” in the alternative, by:

“Enclosing the same in a securely sealed and duly post-paid wrapper addressed to the Respondent at the address(es) as set forth in the within Schedule of Respondents, and by sending the same by overnight, next-day delivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July, 2013.”

(emphasis added).

The First Court Appearance

On July 25, 2013, the original return date for this proceeding, the petitioners' attorney appeared and filed three affirmations of service, one affirmation relating to his service upon the Board and two affirmations relating to his service upon Reeves. Reeves appeared through an attorney and the Board appeared through the County Attorney's office. At the calendar call, the Board reported that no determination had yet been made on the petitioners' objections.

A conference was held where the issue of service of the order to show cause was discussed. While the petitioners' attorney maintained that service upon the respondents was made in accordance with the order to show cause, he alerted the Court to issues that arose in his efforts to effectuate service upon Reeves. He explained that he originally attempted to serve Reeves by “Overnight Express Mail” at a post office in Manhattan, at 4:47 p.m., on July 22, 2013. However, sometime later that evening, he became aware that the set of papers mailed to Reeves was likely incomplete, and he was uncertain as to whether he had mailed her a complete copy of the order to show cause and verified petition. Thus, he explained, later that night at about 9:30 p.m., he attempted service in the same manner, by sending a complete set of the papers by “Overnight Express Mail,” from a post office in Yonkers.

Both affirmations of service attached an “Express Mail” Customer Online Record. The affirmation of service relating to the first attempt to serve Reeves included a USPS printout confirming that the first mailing (which the petitioners' attorney believes may not have included a full set of the papers) was received by Reeves at 4:23 p.m. on July 23, 2013 (the following day). The affirmation of service relating to the second attempt at service did not include any delivery information.

The attorney for Reeves raised personal jurisdiction defenses and refused to accept service of a complete set of the papers in the courtroom. The attorney indicated that Reeves had only received one mailing from the petitioners, which contained an incomplete set of the papers.

The proceeding was adjourned to August 1, 2013 to give the Board the opportunity to complete its review and make a determination on the petitioners' objections.

Reeves' Motion to Dismiss

On August 1, 2013, Reeves appeared with counsel and filed a motion to dismiss the proceeding on the ground that she was not served in accordance with the order to show cause, which permitted service by “overnight, next day-delivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July, 2013.” Reeves further moved to dismiss the proceeding on the ground that the petitioners

[969 N.Y.S.2d 904]

failed to serve any of the members of the Committee to Fill Vacancies. In the alternative, Reeves moved to dismiss the allegations of fraud contained in the petition on the ground that they were not pled with particularity.

In support of her motion, Reeves submitted two affidavits attesting to the fact that she was not served with a complete copy of the order to show cause and supporting papers until July 24th, one day late, along with documentation from the postal service indicating that the mail was sent with a second-day delivery. She also submitted affidavits from the five members of the Committee to Fill Vacancies attesting to the fact that they were not served with the any of the papers in the case. In her affidavits, Reeves averred that the first mailing she received, on July 23, 2013, contained the “order to show cause signed by the court, the RJI and a bound copy of the order to show cause. The bound copy did not contain the petition or any supporting affidavits ” (emphasis added). Further, Reeves averred that she received a card from the post office indicating that a second package had been attempted to be delivered. In supplemental briefing, Reeves argued that, pursuant to federal law, Express Mail must be presented to the post office “by the times authorized by the post master,” in order to qualify for next day delivery. Express Mail packages received by the post office after the time authorized by the post master “are accepted for delivery on the second day.” Reeves also argued that CPLR 2103(b)(6) describes what is meant by overnight mail. Finally, she argues that the petitioners' failure to waive the signature requirement on the mailing is a further act of non-compliance with the order to show cause.

In opposition, the petitioners submitted a memorandum of law, in which the petitioners' attorney affirmed and argued that he complied with the method of service prescribed by the order to show cause by serving Reeves by overnight mail and therefore, the court had jurisdiction to proceed. He also argued that he was not required to serve the Committee to Fill Vacancies, as it is not a necessary party. In a supplemental brief, the petitioners argued that, as their expert witness would testify, delivery to the Yonkers post office on June 22, 2013, “brought the certainty that, under post office policy, attempted service would be guaranteed on June 23.” The petitioners argued that CPLR 2013(b)(6) is inapplicable to this case, and that even if the Court finds that it is applicable, its expert would establish that there is no cut-off for Express Mail, “where such mail is deposited at the Yonkers post office the night before such a mailing is due to be received.”

The Board took no position on the motion.

The Court reserved decision on the branches of Reeves' motion, which sought to dismiss the petition for failure to effectuate service in accordance with the order to show cause, and directed the parties to proceed to the merits of the invalidating proceeding, without waiving any objections with respect to jurisdiction.

The Board of Elections' Determination

After ruling on specific objections filed by citizen objectors, the Board determined on August 1, 2013 that Reeves had 1,041 valid signatures, 41 more than the 1,000 necessary for her name to be placed on the ballot.

The Traverse Hearing

On August 2, 2013, a traverse hearing was conducted, at which time the petitioners' attorney testified as to the manner in which he served Reeves to comply with the order to show cause. The petitioners' attorney

[969 N.Y.S.2d 905]

testified that he originally attempted to serve Reeves by “Overnight Express Mail” at the post office at 99 Church Street, New York, NY, at 4:47 p.m., on July 22, 2013. He testified that, in mailing the first envelope, he delivered it to a postal clerk at the service counter of the post office. However, sometime later that evening, he became aware that the set of papers mailed to Reeves was likely incomplete, and he was uncertain as to whether he had mailed her a complete copy of the order to show cause and verified petition. To comply with the order, he then prepared a complete set of papers and placed them in a pre-paid overnight mail envelope addressed to Reeves at her address. At about 9:30 p.m., petitioners' attorney went to a post office in Yonkers to attempt service on Reeves by...