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Petitioner by,
Kantor Davidoff Wolfe Mandelker Twomey & Gallanty, P.C. by,
LawTence A. Mandelker. Esq. and
Daniel S. Kokhba, Esq.
51 East 42
uid
Street
New York, NY 1001 7
By decision and order of Justice Edward H. Lchner the undersigned was assigned as a Special
Referee to hear and report with recommendations with respect to the issues raised in the Order to Show
Cause of July 29, 2009 to validate the desiating petition filed by Alan 3. Gerson as a candidate for
the Democratic nomination for the Public Office of Council Member from tb.e 1 City Council District
In July of 2009 petitioner Alan I (3erson (hereinafter candidate) filed a designating petition for tbe
aforementioned elected office with respondent Board of Elections in the City of New York (hereinafter
Board of Elections). The petition contained a SUffiCCflt number of signatures to qualify the candidate
for a place upon the ballot As such the number of valid signatures within the thirteen volume petition
filed by th.e candidate was never brought into issue in this reference. No objections were ever filed as
On July 2], 2009 the Board of Elections advised the candidate that the cover sbeet for his
designating petition was inval id because of a defect in Volume NY 0900031 2 wherein a number of
pages in the petition containedan incorrect address of the candidate, 1505 LaGuardia Place, New York,
NY 10012 which in turn did not match the candidate’s actual address of 505 LaGuardia Place, New
York. NY 10012. ‘Uh.e Board of Elections :ftirther informed the candidate that this defect must be cured
withi.n three days of the date of the letter by the filing of an amended cover sheet. A failure to timely
cure the defective cover sheet would result in the invalidation of the entire designating petition.
On .TuJy 22, 2009 the Board of Elections made a hither deteni,ination that certain hand made
corrections on a number of petition sheets in another petition volume. \‘olutne NY 0900242 wherein
the above noted address correction had been made in writing were questionable, inasmuch as the Board
of Ejections could not determine whether the modifications had been made prior to obtaining the
On July 24, 2009 the candidate filed an amended cover sheet wherein a statement was attached
expJaining that the incorrect address printed on certain sheets in petition Volume NY 0900312 was the
result of a printef s error and that said filing was not intended to promulgate ‘fraud or deception with
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regard to the candidate’s designating petition.
On July 24, 2009 a second amended cover sheet (hereinafter later cover sheet) was filed which
contained other data relative to the candidate’s designating petition. The amended later cover sheet set
forth that the candidate’s designating petition containedtwelve volumes. Petition Volume NY 0900312
was deleted from mention on the second amended cover sheet. The amended later cover sheet did
contain a reference to petition Volume NY0900242 as being part of the candidate’s petition.
On July 28, 2009 the Board of Elections deterñiined that the candidate’s petition was in..v•aJid as the
result of a defective cover sheet. A.t a hearing held on August 5, 2009 the Board of Elections ruled that
petitioner’s cover sheet was defective and that the candidate’s entire designating petition was thus
invalid. There has been no contention asserted by any party to this proceeding that if both petition
Volumes NY09003 12 and NYO900 242 wel-e to be excluded from the candidate’s designating petition
that the candidate would not have a sufficient number of valid signatures within the remainder of his
petition. so that he would he entitled to have his name placed upon the ballot as a candidate for the City
Council from the l. City Coun.ci.1 District in the Democratic Primary Election on September 15, 2009.
The Order to Show Cause in this proceeding was made returnable before Justice Edward H.
T..ehner on August 3, 2009. The parties appeared before Justice Lehner on Ausust 3, 2009. The court
referred to the undersigned to hear and report with recommendations the issue of whether the
candidate’s designating petition was suff5 ciently valid so that his name should be placed upon the ballot
for the September 15, 2009 Democratic Primary Election for the Public Office of Council Member
from the P’ City Council District of New York. Borough of Manhattan, City of New York.
On August 3, 2009 the parties appeared before the undersigned as denominated above, at Room
300 of Supreme Court New York County at 71 Thomas Street. A hearing was held and completed in
this reference on August 4. 2009. The complete transcription of this proceeding is filed together with
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this report.
At the hearin.g tile undersigned received into evidence a number of documents (exhibits) The
exhibits are filed together with the instant report and recommendations of’ the undersigned.
Respondent Board of Elections did not appear at thc hearing on August 4, 2009, The undersigned
mindflul of the expedited court calendar applicable to Election Law matters proceeded immediately
upon the issue referenced for hearing by the court. The referenced issue was heard and same is reported
HEARING
At the hearing each of the parties offered an opening statement. A document was then moved into
evidence by the candidate wherein it was set forth that the records of the Board of Elections
demonstrate that 1505 LaGuardia Place, in New York County is a non existent address.
Thereafter petitioner, candidate Alan Gerson was called as a witness for the petitioncr.
The witness initially testified that he is a member of the City Council in New York City. The
witness described the geographic boundaries of LaGuardia Place. The witness then offered testimony
asto an amended cover sheet filed withBoard of Elections relative to the witness’ designating petition.
The amended cover sheet specifically stated that 1505 LaGuardia Place in New York County was a non
existent address. The document bore a Board of Elections’ date stamp of July 24,2009 and requested
Upon completion of the direct examination a cross exam ination of the witness took place.
In the context of cross examination testimony was adduced of th.e witness wherein he described the
circumstances surrounding the creation and tiling of the amended cover sheet. Th.e witness was farther
‘The parties were permitted in lieu of a summation to submit for the undersigned’s consideration a post hearing memorandum of law
by August 7. 2009. Each party timely submitted a post hearing memorandum which is filed together with the instant report of the
undersigned.
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queried, as to the circumstances of how he learned of the existence of problems with his petition.
The witness was additionally queried as to the manner in which the cover sheet issue was dealt with
by the witness’ canipaign The witness specified that he authorized Mr. Dudley Gaffin to file his
amended covet sheet. The sum and substance ofthe testimony adduced ofthe witness in this regard was
that his campaign filed two amended cover sheets with the Board of Elections. A later filed amended
cover sheet which deleted Volume NY090031. 2 from the designating petition, while the first amended
cover sheet filed by the campaign sought to clarify to the Board of Elections the nature of the incorrect
address that appeared within the context of the witness’ designating petition.
Upon completion of the cross examination the testimony in this proceeding was concluded.
In considering the issue of whether the defect in the candidate’s cover sheet was defective to the
point where same invalidated the candidate’s entire designating petition the undersigned has reviewed
the proof; testimony and evidence adduced at the hearing. Upon such review the undersigned sets forth
The candidate in this action initially filed a cover sheet wherein it was set forth that the candidate’s
petition consisted of thirteen volumes. There were two volumes within the petition which contained
petition sheets that had an incorrect address for the candidate printed thereon. They were identified
within the context of the hearing as Volume NY09003 12 and Volume NY 09000242.
The candidate filed two amended cover sheets in order to correct the petition’s defects that resulted
from the misprinted address. The first amended cover sheet sought to explain the nature ofthe incorrect
address and fUrther set forth that there was no intent by the candidate to commit any fraud. The second
amended cover sheet gave details relative to the candidate’s designating petition and deleted petition
which must appear upon a petition cover sheet. Pursuant to said rules a cover sheet must inter alia
include items such as the name and address of the candidate and the total number of volumes in the
petition.
Election Law §6-1 34(10) provides in pertinent part that the mles relative to designating petitions
shall be liberally construed and that there should be substantial compliance with said rules. The
essential premise of th.e statute is that enors in a petition which are not deemed, to have been intended
to create fraud or cothision. should be viewed in a context wherein it should be determined whether
same were intended to or could cause fraud or confusion in the petitioning process. The legislative
intent relative to this statute as amended in 1996 was to permit a serious candidate forpublie office the
opportunity to establish substantial statutory compliance with Election Law §6-134, rather than to
lEn the matter at hand the undersigned notes upon a review of the testimony, proof and evidence
adduced upon the hearing held before mc that the first amended cover sheet filed by the candidate on
July 24, 2009 contained insufficient information so as to be in substantial compliance with rules of the
Board of Elections as cited above. This amended cover sheet is therefor considered to be a nullity as
The undersigned ffirther notes that the second and later filed amended cover sheet did contain
sufficient information so that same could in fact be deemed to be an amended cover sheet in
compliance with the rules of the Board of Elections as set forth above aiid within the statutory
requirements set forth at Election Law §6-134(2). It is of some note that the Board of Elections did not
appear in this action to offer proof, testimony or evidence that would establish that the candidate could
Sce Legislature Memoranda, Memorandum in Support, New York Stste Senate Chapter 709 Laws of t996.
McKinney’s 1996 Session Uws of New York.
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not file the later cover sheet on July 24, 2009. The undersigned therefor finds that the later cover sheet
was timely filed within the three day time period that was allotted, for the filing of an amended cover
sheet. It is thither noi’ed that the Board of Elections presented no proof, testimony or evidence to
establish that the later cover sheet was in fact filed with an intent to create confusion or promulgate a
As such th.e undersigned finds that later flied amended cover sheet as filed on July 24, 2009 was
in fact the amended cover sheet relative to the candidate’s petition. The undersigned therefore finds
that Volume NY09003 12 of said petition was no longer part of the candidate’s petition upon the filing
of the amended cover sheet on July 24, 2009. The undersigned.thus determines that the petition sheets
contained in Volume NY09003 12 and the signatures contained thereon are not part of the candidate’s
designating petition.
What remains for consideration is whether the seven petition sheets contained in Volume
NY0900342 of the candidate’s designating petition wherein the candidat&s address is rnisprinted and
which contains alternations which amended the address to the candidate’s correct address and which
volume was included in the later amended cover sheet constituted a sufficient defect in said amended
In consideration of the foregoing it is once again noted that the issue of whether the remaining
twelve volumes of the candidate’s petition contained sufficient valid signatures so as to allow the
candidate’s nomination to go forward was never placed into issue. Indeed there was no argument
offered at the hearing to establish that were petition Volume NY0900342 to be excluded in. its entirety
from the remainder of the candidate’s designating petition that the candidate would still not have
The entire argument seeking to void the candidate’s designating petition appears to rest upon the
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Board of Elections determination that the original cover sheet or the amended cover sheet if same was
achially deemed to be accepted. by the Board of Elections was so violative of ti-ic rules of the Board of
The undersigned upon due examination of the proof, testimony and evidence adduced at the hearing
finds that to the extent that enors exist in the candidate’s address on seven petition sheets within
It has been held as a matter of law that where there is an innocent and inconsequential violation
(error) of the rules set out at Election Law §6-134 with respect to a petition cover sheet such that it is
clear that tlj.e candidate has nothing to gain from the violation and where the violation is such that there
is no potential for fraud or prejudiec, same will not be a basis for the invalidation of an entire
designating petition [Fromson v. Lefever 112 Ad2d 1064 (2 Dept. 1985) affirmed at 65 NY2d 946
(19S5)j.
In the matter at hand, as previously stated, the proof. testimony and evidence adduced at the hearing
in this reference more than amply establishes that of the twelve petition volumes that remained of the
original thirteen volumes filed by the candidate with the Board of Elections same contained sufficient
valid signatures so that the candidate’s designating petition was in compliance with the numerical
requirements relative to the same. In addition even ifpetitiou Volume NY0900342 were excluded from
the candidste’s designating petition there would yet be sufficient signatures within the designating
petition to validate the candidate’s designating petition. Moreover there is nothing in the record of this
reference that would establish that the error in the seven pages wherein the candidate’s address was
misprinted in petition Volum.e NY0900342 was such that the candidate stood to gain any benefit
therefrom or that this error was intended to cause some type of fraud, conflisiot or prejudice to the
nomination process. As such to the extent that the foregoing resulted in an error in the later amended
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cover sheet flied on July 24. 2009, said error is determined by the undersigned to be an error without
substance.
The undersigned therefore detent ines that the candidate’s later amended cover sheet as submitted
on July 24,2009 withrespectto the desiating petition at issue herein is in fact a sufficiently valid and
appropriate cover sheetfor said nominating petitionwirhin the meaning of Election Law §6-134(2). The
undersigned further determines that the candidate’s nominating petition is otherwise valid in that it
contains a sufficient number of signatures for a valid designating petition for the Public Office of City
Accordingly the undersigned determines that respondent Board of Elections was in error as a matter
of law and fact when it determined to invalidate the designating petition. of th.e candidate in this
reference.
RECOMMENDATIONS
The undersigned having conducted th.e above noted proceeding an.d having found that respondent
Board of Elections was in error when it invalidated the nominating petition of the candidate
i-ecommends that upon confirmation of the in.stan.t report that the court issue an order directing the
Board of Elections to validate the designating petition of the candidate and place the candidate on the
ballot as a candidate in the primary election of September 15, 2009, for the Democratic nomination for
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the Public Office of Council Member from the City Council Disirict, Borough of Manhattan, City
of New York.
The parties if so advised shall contact the Clerk of IA Part 19 [(646)386- 3277] for the purpose of
The parties are furthermore advised that final day that Election Law matters will be considered
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in the Appellate Division is August 18, 2009.
Respectfully submitted,
LESLIE S. LOWENSTEW4
SPECIALREFERE -;
Da
Leslie S. Lowenstein
Special Referee
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