At a Term of the Supreme Court of New York, Part 25, held in and for the County of Erie at 25 Delaware

Avenue, Buffalo, New York on the 12th day of August, 2013 PRESENT: HON. HENRY NOWAK, J.S.C. Justice Presiding

STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE _____________________________________

KEVIN R. HARDWICK, EDWARD A. RATH LEONARD K. PERO, JEFFREY W. GIER, CHRISTOPHER K. ARONICA, RAYMOND A. BILLICA, JAMES B. TOMKINS, JAMES MAYROSE, Petitioners vs. INDEX NO. I-2013-002178 DENNIS E. WARD and RALPH M. MOHR, As Commissioners of and constituting THE ERIE COUNTY BOARD OF ELECTIONS; NEW YORK STATE BOARD OF ELECTIONS; and ERIE COUNTY DEMOCRATIC COMMITTEE; and EXECUTIVE COMMITTEE OF THE ERIE COUNTY DEMOCRATIC COMMITTEE; and JEREMY J. ZELLNER, Chair of the Erie County Democratic Committee and Presiding Officer of a Purported Authorization Meeting; and DENNIS E. WARD, Secretary of the Erie County Democratic Committee and Secretary of a Purported Authorization Meeting; and Respondents, WILLIAM CONRAD III, ALAN K. GETTER, COLLEEN M. SIENER, DAVID M. GUNNER, DONALD L. CLARK, PAULETTE R. RENALDO, JAMES P. DePASQUALE, DAVID J. ARCARA, PAUL J. CLARKSON, DAWN M. SPIRES, LYNN Page 1 of 11 DECISION AND ORDER

M. KRAJIC, PEVERLY A. KINNERY, SARAH E. TOLLNER, WILLIAM M. STANLEY, LEON E. BERNER, JULIE L. LATHROP, ERIK M. POLKOWSKI, MICHAEL J. SHERY Respondent-Candidates. A proceeding brought pursuant to New York State Election Law 1-106. 16-102, 16-116 and 6-120 for the purpose of invalidating certain authorizations purportedly issued by the Erie County Democratic Committee and the Executive Committee of the Erie County Democratic Committee. _____________________________________

Petitioners move for an order invalidating a Democratic Party certificate of authorization as well as the underlying designating petitions for the Respondent-Candidates, which would then remove them as Democratic Party candidates for the September 10, 2013 primary election and November 4, 2013 general election for various public offices. Petitioners also seek that this court direct the Respondent, Erie County Board of Elections, to remove the RespondentCandidates names from the ballots for such elections. Respondents move for summary judgment dismissing the petition. First, respondents allege that petitioners lack standing against ten of the eighteen Respondent-Candidates. Second, respondents claim that without jurisdiction over those ten, the court must dismiss the petition to invalidate the certificate of authorization for lack of necessary parties. They further seek summary judgment because the certificate of authorization was personally delivered to an employee of the United States Postal Service on July 15, 2013, and thus was timely filed under the Election Law. Page 2 of 11

In deciding the instant motions, the court considered the following: July 23, 2013 Order to Show Cause granted by Hon. Joseph R. Glownia, J.S.C.; July 23, 2013 Verified Petition, with exhibits annexed thereto; August 2, 2013 Notice of Motion for Summary Judgment by Respondents Erie County Democratic Committee, Executive Committee of the Erie County Democratic Committee, Jeremy J. Zellner, and Respondent-Candidates William Conrad III, Alan K. Getter, Donald L. Clark, Paulette R. Renaldo, Peverly A. Kinney, Sarah E. Tollner, William M. Stanley, and Erik M. Polkowski; Affidavit of Erich S. Weyant, sworn to on August 1, 2013, and exhibits attached thereto; August 2, 2013 Verified Answer to the Petition by Respondents Erie County Democratic Committee, Executive Committee of the Erie County Democratic Committee, Jeremy J. Zellner, and Respondent-Candidates William Conrad III, Alan K. Getter, Donald L. Clark, Paulette R. Renaldo, Peverly A. Kinney, Sarah E. Tollner, William M. Stanley, and Erik M. Polkowski; August 2, 2013 Verified Answer of Dennis E. Ward, as Commissioner of the Erie County Board of Elections; Answering Affidavit of Ralph M. Mohr, sworn to on August 6, 2013; Affidavit of Edward A. Rath, sworn to on August 6, 2013 Affidavit in Opposition to the Motions for Summary Judgment and Dismissal, and in reply to Respondents answer, by Emilio Colaiacovo, Esq., sworn to on August 7, 2013, and exhibits attached thereto; August 8, 2013 Notice of Motion by Dennis E. Ward, Esq., as Secretary of the Erie County Democratic Committee seeking dismissal of the invalidation proceeding, summary judgment and other declaratory relief; Affidavit of Dennis E. Ward, Esq., sworn to on August 8, 2013, and exhibits attached thereto, in support of that motion; August 8, 2013 Supplemental Notice of Motion for Summary Judgment by Respondents Erie County Democratic Committee, Executive Committee of the Erie County Democratic Committee, Jeremy J. Zellner, and RespondentCandidates William Conrad III, Alan K. Getter, Donald L. Clark, Paulette R. Page 3 of 11

Renaldo, Peverly A. Kinney, Sarah E. Tollner, William M. Stanley, and Erik M. Polkowski; Supplemental Affidavit of Erich S. Weyant, sworn to on August 8, 2013 in support of such motion; Supplemental Affidavit of Jeffrey Sheridan, sworn to on August 8, 2013, in support of such motion; Affidavit of Martin R. Siminski, sworn to on August 8, 2013, and exhibit attached thereto, in support of such motion; Notice of Motion to Dismiss by Respondent-Candidates Colleen M. Siener, David M. Gunner, James P. DePasquale, David J. Arcara, Paul J. Clarkson, Dawn M. Spires, Lynn M. Krajacic, Leon E. Berner, Julie L. Lathrop and Michael J. Sherry; August 8, 2013 Affirmation of Sean E. Cooney, Esq., in support of such motion; Reply Affidavit of Emilio Colaiacovo, Esq., sworn to on August 9, 2013; Oral argument by Emilio Colaiacovo, Esq., Dennis Ward, Esq., Jerome D. Schad, Esq., and Jonathan M. Gorski, Esq., held on August 12, 2013; and Petitioners Exhibit 1, accepted into evidence on August 12, 2013. FACTUAL SUMMARY On July 13, 2013, the Executive Committee of the Erie County Democratic Committee convened and authorized candidates for the nomination of Democratic party for various public offices.1 The authorization nominating these candidates was signed by respondent, Jeremy J. Zellner, Chair of the Erie County Democratic Committee, and Dennis E. Ward, Secretary of the
1

Eighteen candidates were authorized for the following offices: Erie County Legislator (4 Legislative District), Erie County Legislator (6th Legislative District), Town of Aurora Town Clerk, Town of Aurora Highway Superintendent, Town of Brant Supervisor, Town of Brant Board Member, Town of Colden Supervisor, Town of Colden Councilman, Town of Colden Highway Superintendent, Town of Evans Town Clerk, Town of Grand Island Councilman (2 seats), Town of Grand Island Highway Superintendent, Town of Marilla Supervisor, Town of Marilla Councilman, Town of Newstead Councilman, Town of Orchard Park Councilman.
th

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Erie County Democratic Committee, on July 15, 2013. No one filed an objection with the Erie County Board of Elections objecting to the Erie County Democratic Committees Certificate of Authorization. Respondents allege that on July 15, 2013, Jeffrey Sheridan, Executive Director of the Erie County Democratic Committee, and Erich S. Weyant, staff member of that same committee, prepared and assembled sixteen large manilla envelopes and one white business envelope for mailing that evening. The white business envelope included the certificate of authorization at issue. Mr. Sheridan placed first class postage on the envelope and addressed it to the Erie County Board of Elections. Mr. Weyant left the offices of the Erie County Democratic Committee at approximately 8:45 p.m. and arrived at the United States Postal Service mail facility on Cayuga Road in the Town of Cheektowaga shortly after 9:00 p.m. that evening. Mr Weyant asserts that he carried the seventeen envelopes in for mailing, and was ultimately assisted by a postal clerk with whom he was familiar. At that time, the postal clerk took all seventeen envelopes, including the white business envelope that held the certificate of authorization, from Mr. Weyant. Mr. Weyant advised the postal clerk that he was required to have the white business envelope hand stamped that day, and that the other sixteen envelopes were to be sent by certified mail. The clerk began processing certified mail postage which was required for the sixteen manilla envelopes. Mr. Weyant was not required to purchase postage for the white business envelope at issue, as it already had a first class postage stamp on it, but obtained a receipt for the certified mail on the other envelopes dated July 15, 2013 at 9:32 p.m. Mr. Weyant then left all seventeen envelopes with the postal clerk, assuming that he had hand stamped the white business envelope at issue. Page 5 of 11

The Erie County Board of Elections received the white envelope including the Erie County Democratic Committees Certificate of Authorization on July 17, 2013. The envelope was postmarked on July 16, 2013, not July 15, 2013. Subsequent to the date, Dennis E. Ward, Esq., who also serves as Commissioner of the Erie County Board of Elections, received a July 18, 2013 letter from Martin R. Siminski, (A) Postmaster for the United States Postal Service in Buffalo, New York. The letter, which was verified and incorporated into an affidavit by Mr. Siminski, requested the Erie County Board of Elections to accept the white envelope and its contents as mailed on July 15, 2013. Mr Siminski claimed that the postal clerk who assisted Mr. Weyant was in fact requested to stamp the envelope with a ring date on July 15, 2013 but failed to do so. Instead, the envelope was processed the following day, resulting in the July 16, 2013 stamp. Mr. Siminski admits that it was clerk error that he did not hand cancel the envelope on July 15, 2013. The petition seeking to invalidate the Certificate of Authorization was signed on July 23, 2013. Petitioners are candidates for eight of the eighteen public offices addressed in the certificate of authorization, and therefore, the authorizations purportedly designate opponents for the offices sought by each petitioner. However, ten of the candidates listed on the certificate of authorization have no corresponding petitioners seeking the same offices. I. THE ISSUE OF STANDING AND NECESSARY PARTIES Under Election Law 16-102 (1), a certificate of authorization may be challenged only by only any aggrieved candidate, or by the chairman of any party committee or by a person who shall have filed objections, as provided in this chapter. Petitioners do not include any party chairmen or objectors; instead, they only have standing as aggrieved candidates. Further, it is Page 6 of 11

undisputed that petitioners could only be considered as aggrieved candidates against eight of the candidates listed in the Certificate of Authorization, and none of them are aggrieved candidates against the other ten. Respondents claim that by failing to have aggrieved candidate status against ten of the eighteen candidates listed on the certificate of authorization, petitioners lack standing as to those ten Respondent-Candidates. In Dixon v Reynolds, Sup Ct, Erie County, July 30, 2009, Devlin, J., index No. 2009/7941, affd on other grounds 65 AD3d 819 (4th Dept 2009), the court found that the petitioner in that matter had no standing to challenge a certificate of authorization listing three other candidates, where the petitioner was arguably an aggrieved candidate against only one. Respondents therefore contend that the ten Respondent-Candidates without corresponding petitioners running against them are not properly before the court, regardless of whether they were joined as parties and served with the instant petition. If those Respondent-Candidates are not properly before the court, then the challenge against the Certificate of Authorization must be dismissed for failure to include necessary parties, pursuant to Masich v Ward, Sup Ct, Erie County, August 11, 2009, Devlin, J., index No. 2009/7941, affd 65 AD3d 817 (4th Dept 2009), lv denied 13 NY3d 701 (2009). The practical effect of respondents two-part argument is that if aggrieved candidates challenge a certificate of authorization based solely upon their status as aggrieved candidates (and not as objectors or party chairmen), then there must be a petitioner-candidate opposing each respondent-candidate on the certificate of authorization. Petitioners respond to that argument by contending that the notion of requiring correlative petitioners is simply an imaginary requirement and that there is no authority that requires the same number of petitioners are Page 7 of 11

respondents. Petitioners allege that only one aggrieved candidate is sufficient to challenge a Certificate of Authorization. Respondents, however, claim the opposite - that for petitioners to have standing to invalidate this Certificate of Authorization, they must have standing as either aggrieved candidates, objectors, or a party chairman or for each and every candidate listed on the certificate of authorization. Notwithstanding a statement made by counsel for petitioners in an affidavit that [p]etitioners only seek judgment against the corresponding candidates for those political office (Affidavit of Emilio Colaiacovo, sworn to on August 7, 2013, 29), the parties agree that a certificate of authorization is a single document that is either valid or invalid, and cannot be modified by the court. That being said, prejudice to each side seems to increase with the number of candidates listed on the certificate of authorization. If far more than eighteen candidates are included on a certificate of authorization, how difficult would it be to assemble the same number of petitioners? By the same token, why should one aggrieved candidate be able to strike many other candidates against whom he or she has no interest? Respondents contend that the disenfranchising relief sought by petitioners should never be entertained unless no procedural defenses exist and the court can properly have jurisdiction over all candidates listed on the certificate of authorization. Furthermore, respondents point out that eighteen petitioners were not required to challenge the certificate of authorization in this case; any registered voter who filed objections to the Certificate of Authorization pursuant to Election Law 6-154 could have done so individually. This court agrees. Election Law 16-102 (1) provides three different categories of individuals who have standing to challenge a certificate of authorization. Any registered voter Page 8 of 11

may file objections to have such standing. If individuals petition the court claiming only aggrieved candidate status, then a sufficient number of petitioners with such status are necessary to challenge each of the candidates listed on the certificate of authorization. Accordingly, this court grants summary judgment to Respondent-Candidates Colleen M. Siener, David M. Gunner, James P. DePasquale, David J. Arcara, Paul J. Clarkson, Dawn M. Spires, Lynn M. Krajacic, Leon E. Berner, Julie L. Lathrop and Michael J. Sherry, as none of the petitioners have standing against them. The court then grants summary judgment to the remaining respondents, as the ten Respondent-Candidates listed above are necessary parties who would be inequitable affected by invalidating the certificate of authorization (Masich v Ward, 65 AD3d 817 [4th Dept 2009]). THE FILING OF THE CERTIFICATE OF AUTHORIZATION 6-120 (3) of the Election Law states that a Certificate of Authorization shall be filed not later than four days after the last day to file a designating petition. There is no dispute that in 2013, the last day to file designating petitions was July 11, 2013, and the last day to file a certificate of authorization was July 15, 2013. Pursuant to Election Law 1-106 (1), all papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and acceptance for filing when received. Had petitioners had standing to bring the instant petition against all respondents, this court would grant summary judgment to respondents based upon the timely filing of the certificate of authorization. While counsel for petitioners expresses disbelief as to particular details included in Mr. Weyants affidavits, petitioners fail to raise any issues of fact to contradict the sworn statements of Mr. Weyant, Mr. Sheridan, and particularly, Postmaster Martin R. Page 9 of 11

Siminski. Accordingly, there is no basis on which to conduct a hearing to resolve disputed issues of fact. Respondents established by undisputed evidence that the certificate of authorization was placed in the care of the United States Postal Service on July 15, 2013, that a postmark was not placed on the envelope bearing that date only due to clerk error, and that petitioners complied with Election Law 1-106 (2) by filing the certificate of authorization within the time prescribed. Compliance with Election Law 1-106 (1) is an opportunity to obtain presumptive validity, not the exclusive means to establish timely mailing. The plain language of the statute as well as relevant case law support that timely mailing can be demonstrated absent a timely postmark (see e.g., Fink v Salerno, 105 AD2d 489 [3d Dept 1984]; Valentino v Kelleher, Sup Ct, Albany County, September 24, 2001, Teresi, J., index No. 5185-01; Hartley v Porpiglia, Sup Ct, Chautauqua County, August 4, 1988, Mattina, J., index Nos. G-11951, G-11958, affd 143 AD2d 502 [4th Dept 1988], lv denied 72 NY2d 805 [1988]). The facts of Hartley v Porpiglia, supra, are particularly analogous to the instant matter the papers were handed to a postal clerk on the last day for filing, a hand stamp was not placed upon the envelope as requested due to clerk error, and the resulting postmark was for the following day. The court held that party filing the papers fully complied with the full letter and spirit of the law (id. at p. 5). In each case cited by petitioners, there was no dispute that the particular papers were mailed after the particular deadline (see e.g., Amo v. Orange County Board of Elections, 286 AD2d 454 [2d Dept 2001]; Plunkett v Mahoney, 76 NY2d 848 [1990]; Hicks v. Eagan, 166 AD2d 735 [2d Dept 1990]). Consequently, they are distinguishable from the instant action.

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For the above-stated reasons, respondents motion to dismiss the instant petition is granted. This decision constitutes the order of this court.

ENTER: ____________________________________ HENRY NOWAK, J.S.C.

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