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SUPREME COURT OF THE STATE OF NEW YORK
COURT OF WESTCHESTER

PRESENT: SAMUEL G. FREDMAN
-----------------------------------------x

In the Matter of the Application of

WILLIAN H. POHLMANN
STEPHANIE W. BELLINO
DOMENIC J. MORABITO

FILED AND ENTERED ON 8-10-1999
Index. No.: 11337/99
Motion Date: 8/4/99

PETITIONERS-AGGRIEVED

DECISION AND ORDER

- against -

PAUL J. FEINER
LES ADLER
EDDIE MAE BARNES

CANDIDATES-RESPONDENTS

- and -

WESTCHESTER COUNTY BOARD OF ELECTIONS

RESPONDENT,

For an Order Pursuant to Sections 16-100, 16-102, and 16-116 of the Election Law, Declaring Invalid the Designating Petition Purporting to Designate the Respondent Paul J. Feiner as candidate for Public Office of Town Supervisor, Town of Greenburgh, Respondent Les Adler as candidate for Public Office of Town Council, Town of Greenburgh and Respondent Eddie Mae Barnes as candidate for Public Office of Town Council, Town of Greenburgh for the Democratic Party Primary Election to be held On September 14, 1999 and to Restrain the said Board Of Elections from Printing and Placing the Names of said candidates upon the Official Ballot of such Primary Election and the General Election to be held on November 2, 1999.

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The following papers numbered 1 to 19 read on this Petition pursuant to Article 16 of the Election Law to invalidate the designating petition of respondents, on this motion to intervene, etc., and on two separate cross-motions by respondents seeking to dismiss the instant petition.

Upon the foregoing papers it is ORDERED and adjudged that this petition, motion and cross-motions are disposed of as follows:

This is a proceeding pursuant to Election Law Section 16-102 for an Order invalidating the petition designating respondents Paul J. Feiner, Les Adler and Eddie Mae Barnes as candidates for the nominations of the Democratic Party for the public offices of Greenburgh Town Supervisor and Greenburgh Town Council Members, respectively, to be voted at the September 14, 1999, primary election. The instant Order to Show Cause and Petition have been brought by Republican Party registered persons seeking designation for and election to the offices sought by each of the named respondents.

On July 13, 1999, the candidacy petition at issue, bearing 3,332signatures, was timely filed with the Westchester County Board of Elections. Written objections to the designating petition were thereafter filed by petitioner Pohlmann on July 16, 1999, followed on July 21, 1999, by his filing of Specific Objections thereto. The Board of Elections has sustained 29 of the objections and upheld the petition by its Decision dated July 27, 1999¹.

Petitioners seek herein an Order declaring the subject designating petition invalid, null and void based upon a method of signature gathering which they allege totally disregarded proper procedure. Petitioners argue that despite the fact that so relatively few specific objections were sustained by the respondent Board of Elections the employed method of signature gathering renders the petition so fraught with fraud that it must necessarily be vitiated in its entirety. Specifically, petitioners allege that a large number of signatures of non-registered Democrats or Democrats outside the district are included in the designating petition1 and that many of the signatures were falsely subscribed to by respondent Feiner as having been witnessed by him².

In response to the instant special proceeding Wil1iam S. Greenawalt, the Greenburgh Democratic Committee chairman, has moved to intervene in this proceeding. He argues that if the petition is sustained, more than 23,000 voters enrolled in the Democratic Party in the Town of Greenburgh will be disenfranchised and denied the opportunity to select a Democratic Party candidate for Greenburgh Town Supervisor. Accordingly, intervenor-respondent seeks a conditional Order in the event that the Petition is sustained by this Court which would permit enrolled Democratic party voters in the Town of Greenburgh to write in the names of Democratic candidates for nomination as Town supervisor at the September 14, 1999 Democratic Primary Election.

Respondent Feiner and respondents Adler and Barnes, together have separately cross-moved for similar relief seeking an Order dismissing the petition pursuant to CPLR 3211. Initially, respondents all argue that they are entitled to dismissal based upon an alleged lack of jurisdiction. Specifically, respondents argue that the Order to Show Cause is facially jurisdictionally defective because it only expressly provides for service upon the Board of Elections and that said service be affected by the novel way of service of the necessary papers upon the candidate-respondents. Respondents contend that there was no Order directing service of the papers directly to respondent Board of Election, as is normally required, and, further, that the Order to show Cause is silent with respect to individual service upon the candidate-respondents. In the absence of such provision it is argued that no personal jurisdiction was obtained over any of the respondent-candidates all of whom were necessary parties, and that dismissal of the Petition is therefore warranted.

Additionally, respondent Feiner argues that the Petition is, in any event, invalid as to him in that it fails to allege sufficient facts as to his alleged candidate-fraud. While respondent Feiner strenuously denies any allegations of wrongdoing, he nevertheless claims that even if all of the allegations are true, they still do not constitute under the law a sufficient basis upon which to disqualify his designating petition.

Respondents Adler and Barnes, in addition to their argument that personal jurisdiction has not been properly obtained over them as necessary parties, contend that the Petition should be dismissed as against them for the additional reason that it fails to allege any specific acts of wrongdoing by them. Said respondents argue that even if petitioners' allegations are all true, they specifically refer only to respondent-candidate Feiner, and thus, if this court were to ultimately disqualify respondent Feiner based upon these allegations his disqualification should have no bearing on the qualifications of respondents Adler and Barnes, who would still have far in excess of the minimum 1,000 signatures needed to support their candidacies.

Said respondents also claim that petitioners lack standing to challenge the candidacies of respondents Adler and Barnes both because no General Objections and specifications against their designating petition were timely filed and thus petitioners are not "objectors" entitled to commence this proceeding and also because they are not "candidates aggrieved." With respect to this lack of standing argument respondents Adler and Barnes explain that practitioners have no primary opponents and are thus at this time the Republican Party nominees. Conversely, said respondents argue that they are candidates for the nomination of the Democratic Party and that other valid designating petitions have been filed for the same nomination. It is respondents' contention that petitioners lack standing to bring this Petition as against them since only intra-party opponents may challenge a party's designations; inter-party opponents, they argue, may only challenge each other's nominations.

In opposition to respondents' motions, petitioner Pohlmann has submitted an Affirmation in Opposition." The Court notes, however, that an attorney who is a party to a proceeding does not enjoy the privilege of utilizing an affirmation (See CPLR 2106; Slavenburgh Corp. v. Opus Apparel, Inc. 53 NY2d 799, 801 (1981) Flatton v. Casco, 86 Misc.2d 655, 698 (Sup. Ct. Nass. Co. 1976); modified on other grounds, 54 A.D.2d 752 (1976). Concomitantly, the affirmation submitted by petitioner Pohlmann is of no probative worth with regard to any issues raised on his behalf, and will be considered only in his capacity as counsel for petitioners Bellino and Morabito.

It is petitioners' contention that personal jurisdiction properly lies and that the inadvertent omission of the word "AND" has resulted in jurisdictional arguments raised. It is petitioners' contention that this error is nothing more than a mere ministerial defect.

As a threshold matter, this Court must first address the very significant jurisdictional issue raised by respondents. With candor, this Court must admit and assume some measure of responsibility for the deficiencies noted by respondents. It is, of course, the Court which sets the method of service and it is well-settled that the method of service provided for in an order to show Cause is jurisdictional in nature and must be strictly complied with. See Zambelli v. Dillion, 242 A.D.2d 353 (1997).

The novel issue presented here, however is not whether there has been compliance with the service directed in the Order to Show Cause, but whether the service that was directed was sufficient to obtain jurisdiction. After this Court's thoughtful consideration of the parties' respective arguments and its understanding of jurisdictional requirements, this Court must conclude that the service directed in the Order to Show Cause was regrettably, not sufficient to obtain jurisdiction over all the necessary parties. It was not apparent to the Court at the time that the instant Order to Show Cause was presented to it for its signature that no where in the one and one-half typed pages delineating the various available methods of service was direct service of the papers upon the Board of Elections provided for and, further that the order was silent with respect to service upon the individual candidates. Yet, it is abundantly clear at this time upon a careful reading of the Order to Show Cause that the foregoing is in fact true. Upon such finding, this court is compelled to dismiss the instant Petition for lack of jurisdiction with respect to all necessary parties notwithstanding this Court's preference to dispose of matters, whenever possible, on their merits. cf. Marchant v. Echaueste, 186 A.D,2d 101 (2nd Dept. 1992); Smith v. Tutunji, 154 A.D.2d 780 (3rd Dept. 1989). That the order to Show Cause directed service upon the individual candidates in their capacities as agents for the Board of Elections is wholly insufficient to have obtained individual personal jurisdiction over the candidates. Contrary to Petitioner Pohlmann's contention, it is simply of no moment that the candidates receipt of the Order to Show Cause afforded them adequate notice of this proceeding. Petitioner fails to cite and this Court is unaware of any case law in which mere notice suffices in lieu of compliance with service requirements. cf. Feinstein v. Bergner. 48 N.Y.2d 224, 241 (1979); Smith v. Tutunji, supra,. 154 A.D.2d 781.

Moreover, the Court finds petitioner Pohlmann's attempt to argue that jurisdiction should properly be found because of the innocuous and obvious omission of the word "AND" is strained at best. Even assuming that the word "AND" was meant to be included in the service order and should be read as including such word, this Court would still not be satisfied that [page 8 beings here] jurisdiction was properly obtained. The order to show Cause would still fail to specify how service upon the Board was to be effected, and it would further fail to specifically order that service was necessary upon each of the individually named respondents - and would continue to read only as to how service upon them was to be effected.

In view of this Court's finding that jurisdiction has not been obtained, any findings that the Court would have made with respect to the other arguments raised and the merits of the Petition would, of course, be mere dicta. Nevertheless, and given the egregiousness of the claims of candidate fraud against respondent Feiner, the Court feels compelled to make certain observations.

The allegations of candidate-fraud here are extremely disturbing and this Court notes that such charges are perceived very seriously particularly within this judicial Department. Indeed, this Court has not found one second Department case where the Court, having found after a hearing that the charges of candidate-fraud were satisfactorily established, did not remove the candidate's name from the appropriate ballot. See, e.g., Matter of Kantha v. Scaglione, 242 A.D.2d 345 (2nd Dept. 1997); Matter of Flower V. D'Apica, 104 A.D.2d 578 (2nd Dept. 1984); Matter of Bynoe V. Board of Elections of the City of New York, 164 A.D.2d 929 (2nd Dept. 1990), app. den. 76 N.Y.2d 705 (1990); cf., Klugman v. King, 242 A.D.2d 346 (2nd Dept. 1997), lv. to app. den. 90 N.Y.2d 805 (1997). Obviously, absent this court's having conducted a hearing on the issues presented in the petition, it is not in a position to know nor even to speculate as what the evidence would have revealed with respect to the allegations of candidate fraud. Nevertheless, it should be noted that the Court would have had no compunction about removing respondent Feiner's name from the ballot if the truth of the charges were satisfactorily established.

However, the allegation that fraud so permeated the method of signature procurement that the designating petition must be totally invalidated would have been a much more difficult claim to prove in order to afford judicial relief. Here the Board has sustained only 29 of petitioners' filed Objections based upon the signors' lack of qualifications as locally registered Democrats. Given the more than 3,300 signatures respondents obtained, it must be conceded that only a very small percentage of signatures either have been determined to be or are apparently tainted. Even assuming that the candidates did participate in the gathering of the statistically speaking relatively few tainted signatures, the Court is doubtful that it would have been able to find that knowing, systematic violations of the Election Law took place to find that fraud so permeated the signature gathering such as to necessitate judicial invalidation of the designating petition. See Matter of Quinones v. Bass, 45 N.Y.2d 811, 813 (1978); Matter of Reese v. Pokorski, 242 A.D.2d 858 (4th Dept. 1997); Matter of Crosta v. O'Rourke, 242 A.D.2d 856 (4th Dept. 1997), lv. to app. den. 90 N.Y.2d 805 (1997); Matter of Brown v. Philips, 185 A.D.2d 953 (2nd Dept. 1992) (fraud sufficient to vitiate petition not found where candidate had instructed subscribing witness to procure and post date signatures); Buchanan v. Espada, 230 A.D.2d 676 (1st Dept. 1990) (candidate's attesting to five signatures when not in proximity with signers did not warrant inference that fraud permeated entire petition). 

With respect to respondent-candidate Adler and Barnes' motion to dismiss, the Court finds that, irrespective of this Court's earlier finding that no jurisdiction lies, dismissal of the Petition would still be warranted based upon petitioners lack of standing. It is obvious to the Court that since no General Objections and specifications were filed against the designating petition as it pertains to Adler and Barnes, petitioners are not objectors within the meaning of Election Law Section 16-102(1). Nor, apparently, are petitioners "candidates aggrieved" entitled to bring this special proceeding. See Matter of Stempel v. Albany County Board of Elections, 97 A.D.2d 647 (3rd Dept. 1983); Matter of Mendez v. McNab,83 A.D.2d 893(2nd Dept. 1981), mot. for lv. to app. den. 54 N.Y.2d 769 (1981).

Finally, while the Court, based upon its finding of lack of standing, would not have had to address respondent-candidates Adler's and Barnes' contention insofar as they allege that the petition affords them insufficient notice of the particular allegations against them, the Court takes this opportunity nevertheless to note that it believes that the petition does sufficiently apprise said respondents of the allegations made. While petitioners are correct in their contention that "fundamental notions of due process require that a candidate be given some notice of which signatures on his petition are being challenged (citation omitted) , " Matter of Belak v. Rossi, 96 A.D.2d 1011 (3rd Dept. 1983), app. den. 60 N.Y.26 552 91983[sic]), a careful review of the instant Petition demonstrates that the pleading specificity required both by due process and CPLR 3016, subdivision (b) has been satisfied, respondents' protestations to the contrary notwithstanding. Petitioners specifically alleged in paragraphs 17 and 18 of the Petition that

17. Upon information and belief, hundreds of signatures gathered by the respondent-candidates FEINER, ADLER and BARNES were those of REPUBLICANS, INDEPENDENTS, and various other categories other than DEMOCRATS such that it is evident that there was a total disregard for the qualifications of the signers amounting to fraud.

18. Upon information and belief many signatures were not witnessed by the candidates even though they signed as subscribing witnesses, also amounting to fraud. (emphasis supplied)

In this Court's view, said respondents were thus sufficiently apprised of the types of improprieties on which petitioners were basing their challenge, see Matter of Mazza v. Board of Elections, 196 A.D.26 679 3rd Dept. 1993), particularly since it cannot ignore the fact that the candidates themselves allegedly engaged in the fraudulent activity and are thus in the best position to know what is being challenged. While it is true, as respondents Adler and Barnes assert, that the specific objections filed and annexed to the Petition failed to specifically allege even one Objection as to either respondent-candidate Adler or Barnes, the Petition itself clearly states that the specifications were incorporated by reference into the Petition, but that the petition was "not limited to the specifications. (See Paragraph 15 of the Petition).

Based upon all of the foregoing, the petition is dismissed; accordingly, the motion to intervene is denied as moot.

DATED: White Plains, New York
August 10, 1999

/signed/

HON. SAMUEL G. FREDMAN
Justice of the Supreme Court

William H. Pohlmann, Esq.
Attorney for Petitioners
214 Mamaroneck Avenue
White Plains, NY 10601

Thomas J. Abinanti, Esq.
Attorney for Respondent-Intervenor
Six Chester Avenue
White Plains, NY 10601

Alan D. Scheinkman, Esq.
County Attorney, by Robert W. Villani
Attorney for Westchester County Board at Elections
148 Martine Avenue
White Plains, NY 10601

Adam T. Bradley, Esq.
Attorney for Respondent Feiner
140 Grand Street
White Plains, NY 10601

Ascher Katz, Esq.
Attorney- for Candidate-Respondents Adler and Barnes
200 Mamaroneck Avenue
White Plains, NY 10601

¹The Board determined that, given its limited function as "a purely ministerial body, it could only rule on objections which, on their face would invalidate a petition and that those specified Objections which involved questions of fact or law could only be ruled upon by a Court of competent jurisdiction.

²Petitioner Pohlmann's Objections allege that, of the 79 petition sheets witnessed by respondent Feiner containing 1,245 signatures, there appears to be five husband/wife pairs signing with similar signatures.

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