Stavisky v. Lee

• Citation: 142 A.D.3d 933,2016 N.Y. Slip Op. 05949,37 N.Y.S.3d 552
• Parties: In the Matter of Toby Ann STAVISKY, petitioner-respondent, v. Kangjik LEE, respondent-appellant, et al., respondent. (Proceeding No. 1) In the Matter of Kangjik Lee, et al., petitioners-appellants, v. Toby Ann Stavisky, respondent-respondent, et al., respondent. (Proceeding No. 2)
• Decision Date: 06 September 2016
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 933

37 N.Y.S.3d 552

2016 N.Y. Slip Op. 05949

In the Matter of Toby Ann STAVISKY, petitioner-respondent,

v.Kangjik LEE, respondent-appellant, et al., respondent. (Proceeding No. 1)

In the Matter of Kangjik Lee, et al., petitioners-appellants,

v.Toby Ann Stavisky, respondent-respondent, et al., respondent. (Proceeding No. 2)

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

Sept. 6, 2016.

In a proceeding pursuant to Election Law § 16–102, inter alia, to validate a petition designating Toby Ann Stavisky as a candidate in a primary election to be held on September 13, 2016, for the nomination of the Democratic Party as its candidate for the public office of State Senator for the 16th Senatorial District, and a related proceeding, among other things, to invalidate that designating petition, Kangjik Lee and S.J. Jung appeal from a final order of the Supreme Court, Queens County (Dufficy, J.), entered August 16, 2016, which, after a hearing, granted the petition of Toby Ann Stavisky, inter alia, to validate the designating petition and denied their petition, among other things, to invalidate the designating petition.

ORDERED that the final order is affirmed, without costs or disbursements.

“Election Law proceedings are subject to severe time constraints, and they require immediate action” (Matter of Master v. Pohanka, 44 A.D.3d 1050, 1052, 845 N.Y.S.2d 376 ; see Matter of Fonvil v. Alexandre, 87 A.D.3d 640, 640, 928 N.Y.S.2d 467 ). In light of these time constraints, it is incumbent upon the petitioner in a proceeding to invalidate a candidate's designating petition to timely produce evidence sufficient to satisfy his or her burden of proving the invalidity of the petition (see Matter of Acosta v. Previte, 39 N.Y.2d 720, 721, 384 N.Y.S.2d 765, 349 N.E.2d 865 ; Matter of Fonvil v. Alexandre, 87 A.D.3d at 640, 928 N.Y.S.2d 467 ; Matter of Blostein v. Bauer, 218 A.D.2d 912, 913, 630 N.Y.S.2d 814 ; Matter of Rivera v. Ortiz, 207 A.D.2d 516, 516, 615 N.Y.S.2d 929 ; see also Matter of Jaffee v. Kelly, 32 A.D.3d 485, 485, 819 N.Y.S.2d 485 ). The court must then “determine, after consideration of the evidence before it, the merits of all of the contested objections material to the validity of the designating petition” (Matter of Olenick v. Carlow, 76 A.D.3d 711, 712, 909 N.Y.S.2d 78 ).

In view of the time constraints inherent in an Election Law proceeding and the court's broad discretion in overseeing the proceedings before it (see generally Vera v. Soohoo, 99 A.D.3d 990, 995, 953 N.Y.S.2d 615 ; People v. Griffin, 92 A.D.3d 1, 3, 934 N.Y.S.2d 393, affd. 20 N.Y.3d 626, 964 N.Y.S.2d 505, 987 N.E.2d 282 ; Matter of Fonvil v. Alexandre, 87 A.D.3d at 640, 928 N.Y.S.2d 467 ), the manner in which the Supreme Court conducted the hearing here was not an improvident exercise of discretion. In an effort to conduct its review of the subject petitions in an expeditious manner, the first two days of the hearing were held in a courtroom and the third and fourth days were held at the offices of the respondent Board of Elections in the City of New York (hereinafter the Board of Elections). At the parties' appearance in court before the commencement of the hearing, the appellants indicated that they had not yet procured from the offices of the Board of Elections any evidence in support of their objections, and the court granted them an adjournment to retrieve the evidence. When the hearing began, the court afforded the appellants an opportunity to raise any objection for which proof was only available at the offices of the Board of Elections, and it reserved decision on many such objections to address later at the offices of the Board of Elections. When the venue of the hearing moved to the offices of the Board of Elections, the court considered and ruled on each objection on which it had reserved decision. In light of the foregoing, the appellants' contention that the court improvidently exercised its discretion in not holding the entire hearing at the offices of the Board of Elections is without merit.

The appellants' contention that the Supreme Court improperly failed to address all of their objections is also without merit. While a court is obligated to consider each objection to the designating petition properly placed before it (see Matter of Olenick v. Carlow, 76 A.D.3d at 712–713, 909 N.Y.S.2d 78 ; Matter of Richards v. Board of Elections of City of N.Y., 54 A.D.3d 430, 431, 862 N.Y.S.2d 297 ; Matter of Bodkin v. Garfinkle, 21 A.D.3d 571, 572, 800 N.Y.S.2d 598 ), where the challenger to the petition fails to raise an objection or specification when afforded the opportunity to do so, that objection or specification is waived (see Matter of Jones v. Board of Elections of City of N.Y., 122 A.D.2d 905, 905, 506...