The Appellate Division Second Department has just come down with an
important decision that may affect my case.
In Rhoades vs. Westchester Board of Elections an "Opportunity to Ballot"
was thrown out because it was filed at 9:43 PM whereas the official final
deadline was 5:00 PM.
In my case, the General Objections by Sal Caruso was filed at 5:35 PM on
the last day and the Specific Objections were not filed until 10:45 the
last day. Also, no time stamp appears on the Specific Objections.
I know that the Specific Objections were filed late because I waited at the
Board of Elections at 32 Broadway until 7:30 PM that evening and no
Specific Objections having been filed by that time I went home and went to
bed.
Since the Specific Objections were filed more than five hours late I should
be restored to the ballot.
Sam Sloan
Decided on August 15, 2013
*SUPREME COURT OF THE STATE OF NEW YORK*
*APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT*
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
SYLVIA O. HINDS-RADIX, JJ.
2013-08038
(Index Nos. 3001/13, 3082/13)
*[*1]In the Matter of Richard M. Rhoades, petitioner-respondent,
v
Westchester County Board of Elections, respondent, Evelyn M. McCormack, et
al., appellants. (Proceeding No. 1) In the Matter of Richard M. Rhoades, et
al., petitioners- respondents, Westchester County Board of Elections,
respondent, Evelyn M. McCormack, et al., appellants. (Proceeding No. 2) *
DECISION & ORDER
In related proceedings, inter alia, pursuant to Election Law § 16-102 to
invalidate a petition for an opportunity to ballot by providing for a
write-in candidate pursuant to Election Law § 6-164 in a primary election
to be held on September 10, 2013, for the nomination of the Independence
Party as its candidate for the public office of Westchester County
Executive, Evelyn M. McCormack, Elisabeth L. Alberty, Christina A. Oros,
Theodora M. Cerino, Margaret M. Sculti, James Travalino, and Nicole M.
Deshensky appeal, as limited by their brief, from so much of an amended
final order of the Supreme Court, Westchester County (DiBella, J.), entered
August 12, 2013, as, after a hearing, granted the petition to invalidate
the petition for an opportunity to ballot.
ORDERED that the amended final order is affirmed insofar as appealed from,
without costs or disbursements.
Election Law § 1-106 provides that papers shall be filed with the relevant
board of elections between the hours of 9:00 a.m. and 5:00 p.m. Moreover,
the "failure to file any petition or certificate relating to the
designation or nomination of a candidate for party position or public
office . . . within the time prescribed by the provisions of this chapter
shall be a fatal defect" (Election Law § 1-106[2]). "[T]he case law
interpreting Election Law § 1-106(2) and its predecessor, Election Law
former § 143(12) (as amended by L 1969, ch 529, § 1), makes it clear that
such time limitations are mandatory in nature, and the judiciary is
foreclos[ed] . . . from fashioning exceptions, however reasonable they
might be made to appear'" (*Matter of Esiason v Washington County Bd. of
Elections*, 220 AD2d 878, 879, quoting *Matter of Baker v Monahan*, 42 NY2d
1074, 1075; *see Matter of Hutson v Bass*, 54 NY2d 772, 774; *Matter of
Fintz v Poveromo*, 197 AD2d 944*; Matter of Irvin v Sachs*, 129 AD2d 827,
828; *Matter of Spencer*, 71 AD2d 1062, 1063).
Here, the parties agree that the petitioners filed a petition for an
opportunity to ballot with the Westchester County Board of Elections at
9:43 p.m. on July 18, 2013. Since the "overall period for filing" ended at
5:00 p.m. on July 18, 2013, the Supreme Court correctly determined that [*2]the
filing of the petition for an opportunity to ballot more than four hours
later was a fatal defect (*Matter of Esiason v Washington County Bd. of
Elections*, 220 AD2d at 880; *see* Election Law § 1-106[2]; *Matter of
Hutson v Bass*, 54 NY2d at 774;* Matter of Fintz v Poveromo*, 197 AD2d at
945; *cf. Matter of Fedak v Judge*, 71 AD3d
892<http://www.courts.state.ny.us/reporter/3dseries/2010/2010_02146.htm>,
894; *Matter of Cozzolino v Columbia County Bd. of Elections*, 218 AD2d
921). *Matter of Fedak *and *Matter of Cozzolino *are not to the contrary,
as those cases did not involve late filings (*see Matter of Fedak v Judge, *71
AD3d at 894; *Matter of Cozzolino v Columbia County Bd. of Elections*, 218
AD2d at 923).
In light of our determination, the parties' remaining contentions need not
be addressed.
SKELOS, J.P., LEVENTHAL, LOTT and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
Decided on August 15, 2013
*SUPREME COURT OF THE STATE OF NEW YORK*
*APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT*
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
SYLVIA O. HINDS-RADIX, JJ.
2013-08038
(Index Nos. 3001/13, 3082/13)
*[*1]In the Matter of Richard M. Rhoades, petitioner-respondent,
v
Westchester County Board of Elections, respondent, Evelyn M. McCormack, et
al., appellants. (Proceeding No. 1) In the Matter of Richard M. Rhoades, et
al., petitioners- respondents, Westchester County Board of Elections,
respondent, Evelyn M. McCormack, et al., appellants. (Proceeding No. 2) *
DECISION & ORDER
In related proceedings, inter alia, pursuant to Election Law § 16-102 to
invalidate a petition for an opportunity to ballot by providing for a
write-in candidate pursuant to Election Law § 6-164 in a primary election
to be held on September 10, 2013, for the nomination of the Independence
Party as its candidate for the public office of Westchester County
Executive, Evelyn M. McCormack, Elisabeth L. Alberty, Christina A. Oros,
Theodora M. Cerino, Margaret M. Sculti, James Travalino, and Nicole M.
Deshensky appeal, as limited by their brief, from so much of an amended
final order of the Supreme Court, Westchester County (DiBella, J.), entered
August 12, 2013, as, after a hearing, granted the petition to invalidate
the petition for an opportunity to ballot.
ORDERED that the amended final order is affirmed insofar as appealed from,
without costs or disbursements.
Election Law § 1-106 provides that papers shall be filed with the relevant
board of elections between the hours of 9:00 a.m. and 5:00 p.m. Moreover,
the "failure to file any petition or certificate relating to the
designation or nomination of a candidate for party position or public
office . . . within the time prescribed by the provisions of this chapter
shall be a fatal defect" (Election Law § 1-106[2]). "[T]he case law
interpreting Election Law § 1-106(2) and its predecessor, Election Law
former § 143(12) (as amended by L 1969, ch 529, § 1), makes it clear that
such time limitations are mandatory in nature, and the judiciary is
foreclos[ed] . . . from fashioning exceptions, however reasonable they
might be made to appear'" (*Matter of Esiason v Washington County Bd. of
Elections*, 220 AD2d 878, 879, quoting *Matter of Baker v Monahan*, 42 NY2d
1074, 1075; *see Matter of Hutson v Bass*, 54 NY2d 772, 774; *Matter of
Fintz v Poveromo*, 197 AD2d 944*; Matter of Irvin v Sachs*, 129 AD2d 827,
828; *Matter of Spencer*, 71 AD2d 1062, 1063).
Here, the parties agree that the petitioners filed a petition for an
opportunity to ballot with the Westchester County Board of Elections at
9:43 p.m. on July 18, 2013. Since the "overall period for filing" ended at
5:00 p.m. on July 18, 2013, the Supreme Court correctly determined that [*2]the
filing of the petition for an opportunity to ballot more than four hours
later was a fatal defect (*Matter of Esiason v Washington County Bd. of
Elections*, 220 AD2d at 880; *see* Election Law § 1-106[2]; *Matter of
Hutson v Bass*, 54 NY2d at 774;* Matter of Fintz v Poveromo*, 197 AD2d at
945; *cf. Matter of Fedak v Judge*, 71 AD3d
892<http://www.courts.state.ny.us/reporter/3dseries/2010/2010_02146.htm>,
894; *Matter of Cozzolino v Columbia County Bd. of Elections*, 218 AD2d
921). *Matter of Fedak *and *Matter of Cozzolino *are not to the contrary,
as those cases did not involve late filings (*see Matter of Fedak v Judge, *71
AD3d at 894; *Matter of Cozzolino v Columbia County Bd. of Elections*, 218
AD2d at 923).
In light of our determination, the parties' remaining contentions need not
be addressed.
SKELOS, J.P., LEVENTHAL, LOTT and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court