Petitioners' have moved by order to show cause and verified petition for an order granting the following relief: Declaring null and void the certificate of authorization and certificate of substitution certifying candidate respondent Daniel P. Losquadro for the office of Suffolk County Legislator, 6th Legislative District, as a candidate for the Suffolk County Working Families Party; declaring null and void the certificate of substitution which certifies respondent candidate Edward D. Burke, Sr for the office of Town Justice in the Town of Southhampton, as a candidate for the Suffolk County Working Families Party; enjoining the Suffolk County Board of Elections from [*2]placing the names of Daniel P. Losquadro and Edward D. Burke, Sr, on the ballot for the November general election as candidates for the Working Families Party; enjoining the Suffolk County Board of Elections from accepting any further facially invalid certificates of authorizations and /or certificates of substitution filed by the Suffolk County Working Families Party; and finally, an order of contempt against Charles J. Polhanka, and Donna Lent (who, respectively, are the Presiding Officer and Secretary for the Suffolk County Working Families Party), and Cathy L. Richter-Geier, and Anita Katz (Commissioners of the Suffolk County Board of Elections) for a violation of the court order dated September 5, 2007 issued by the Hon. Carol McKenzie, Justice of the Supreme Court of Suffolk County.

Respondents have moved to dismiss the verified petition upon the grounds that the petition was improperly verified by the attorney for petitioners, and that the contempt application is improperly brought in this proceeding because petitioner is referencing the violation of an order dated September 5, 2007, from another election law proceeding under index number 21896/07.

The above-entitled election law matter has been referred to this court for decision by administrative order dated October 12, 2007. The parties were given a final submission date for all papers of October 22, 2007.

Prior certificates of authorizations issued by the Suffolk County Working Families Party by Charles J. Pohanka, and Donna Lent have been held to be null and void by court order dated September 5, 2007 issued by the Hon. Carol McKenzie, Justice of the Supreme Court in Suffolk County, which order was affirmed by the Appellate Division Second Department by decision dated September 10, 2007. One of the certificate of authorizations was for respondent Daniel P. Losquadro, as candidate for Suffolk County Legislator for the 6th Legislative District. The court order affirmed the validity of the Rules of the Working Families Party of New York State adopted September 6, 2006, and duly filed with the New York State Board of Elections on September 11, 2007 which provides, in pertinent part, that only the State Committee of the Working Families Party can issue certificates of authorizations, (also known as Wilson-Pakula authorizations), for candidates who are not members of the Working Families Party. The order of Judge McKenzie clearly states that the County Committee is not empowered to issue the Certificate of Authorizations, and that the State Rules control, citing Matter of Pohanka v. Working Families Party of New York State, (30 AD2d 3d 625). The order further enjoins the County Committee and the Executive Committee of the Suffolk County Working Families Party from filing any further Certificates of Authorizations so long as the State Rules remain in effect, and that said authorizations should be rejected by the Suffolk County Board of Elections. [Petitioners' Order To Show Cause, Exhibit D, pp.7-8].

In an attempt to fill a vacancy created by reason of a tie vote after the Primary Election held September 18, 2007, respondents Pohanka and Lent issued a certificate of authorization dated October 1, 2007 (Petitioner's Order to Show Cause, Exhibit C), and certificate of substitution dated October 2, 2007 (Petitioner's Order to Show Cause, Exhibit E) on behalf of the Suffolk County Working Families Executive Committee to certify Daniel P. Losquadro as the candidate for the Working Families Party for the office of Suffolk County Legislator for the 6th Legislative District, and a certificate of substitution dated September 27, 2007 (Petitioner's Order to Show Cause, Exhibit F) for Edward D. Burke, SR. as the Working Families Party candidate for the office of Town Justice in the Town Southhampton, for the November 6, 2007 general elections. [*3]

Petitioners have moved for an order to declare those certificates of substitutions and authorization null and void upon the ground that the Suffolk County Working Families Party has no authority to do so under the Rules of the Working Families Party of New York State adopted September 6, 2006, and duly filed with the New York State Board of Elections on September 11, 2007, and pursuant to the order dated September 5, 2007 issued by the Hon. Carol McKenzie, which was affirmed by the Appellate Division of the Second Department. This court agrees.

The Election Law provides, in pertinent part, that "A vacancy in a nomination made at a primary, or by tie vote thereat, may be filled by a majority of the members, of the party committee or committees last elected in the political subdivision in which the vacancy occurs...or by a majority of such committee as the rules of the party may provide." [Election Law §6-148(3)]. Article XII of the Rules of the Working Families Party of New York State specifically provides that the Working Families Party shall not authorize any County Committee to nominate, designate, or authorize any candidates for public office since that power is reserved for only the State Committee and Executive Committee of the Working Families Party. Clearly respondents Pohanka and Lent have issued certificates of substitution and authorization in violation of the Rules of the Working Families Party of New York State (See, Matter of New York State Working Families Party State Committee v. Berman, 11 AD3d 646), and, more importantly, in direct violation of the order dated September 5, 2007 issued by the Hon. Carol McKenzie, Justice of the Supreme Court of Suffolk County which specifically enjoined the County Committee and the Executive Committee of the Suffolk County Working Families Party from issuing any further certificates of authorizations. [Petitioner's order to Show Cause, Exhibit D, p. 8].

Respondents motion to dismiss the petition upon the ground that the verification by the attorney is improper is without merit since counsel for petitioners had personal knowledge of the facts in the petition since they are based upon the filings of the papers with the Suffolk County Board of Elections, and the order of September 5, 2007 issued by Hon. Carol McKenzie, Justice of the Supreme Court of Suffolk County. [CPLR §3020 (d)(3); Tenneriello v. Board of Elections of the City of New York, 104 AD2d 467, aff'd, 63 NY2d 700]. Furthermore, respondents failed to timely exercise due diligence in raising the issue of a defective verification. In Election Law proceedings, if no objection is made immediately within 24 hours, due diligence has not been satisfied.[See, Matter of Ladore v. Mayor and Board of Trustees of the Village of Port Chester, 70 AD2d 603].

Respondents claim of a jurisdictional defect in the pleadings for failure to name a necessary party to the action, namely the County Committee of the Working Families Party, is denied. The County Committee was personally served with the Order to Show Cause, and therefore had notice and an opportunity to be heard. Furthermore, the governing body of the County Committee, the Executive Committee, which issued the certificates of substitution, was also named as a party, and personally served and appeared in the action.

In regards to the issue of contempt, the order dated September 5, 2007, issued by Hon. Carol McKenzie, Justice of the Supreme Court of Suffolk County, states, in relevant part, that it is

"Ordered, that so long as the State Rules at issue remains in effect, respondents Executive Committee and/or County Committee of the Suffolk County Working Families Party are enjoined from issuing any further such Certificates of Authorizations."(Petitioners' Order to Show Cause, Exhibit D, p.8).

Respondents claim that the petition is defective because there was no decisional law [*4]regarding the provisions of the Election Law §6-148, dealing with a tie vote, is disingenuous at best. Judge McKenzie specifically enjoined the Suffolk County Committee and Executive Committee of the Working Families Party from ever issuing certificates of authorizations because of the rules of the State party. Those same State rules placed the respondents on notice with regards to certificates of substitution as well.

However, the injunctive provision in the order dated September 5, 2007 is directed against a political organization, namely the Executive Committee and/or County Committee of the Suffolk County Working Families Party, and not personally against the respondents Pohanka, Lent, Richter-Geier, and Katz. Accordingly, petitioners application for contempt against these persons in their individual capacity is denied in its entirety.

Based upon the foregoing, it is hereby

Ordered, that both the certificate of authorization and certificate of substitution issued by the Executive Committee of the Suffolk County Working Families Party, which certifies DANIEL P. LOSQUARDO for the office of Suffolk County Legislator for the 6th Legislative District, as a candidate for the Suffolk County Working Families Party for the November 6, 2007 general election, is declared null and void, and it is further,

Ordered, that the certificate of substitution issued by the Executive Committee of the Suffolk County Working Families Party, which certifies EDWARD D. BURKE for the office of Town Justice in the Town of Southhampton, as a candidate for the Suffolk County Working Families Party for the November 6, 2007 general election, is declared null and void, and it is further,

Ordered, that the Suffolk County Board of Elections are hereby enjoined from placing the name of DANIEL P. LOSQUADRO on the ballot for the office of Suffolk County Legislator for the 6th Legislative District, as a candidate for the Suffolk County Working Families Party for the November 6, 2007 general election, and it is further

Ordered, that the Suffolk County Board of Elections are hereby enjoined from placing the name of EDWARD D. BURKE, SR, on the ballot for the office of Town Justice in the Town of Southhampton, as a candidate for the Suffolk County Working Families Party for the November 6, 2007 general election, and it is further

Ordered, that the Suffolk County Board of Elections are hereby enjoined from accepting any further facially invalid certificates of authorizations and /or certificates of substitution filed by the Suffolk County Working Families Party so long as the State Rules for the Working Families Party remain in effect, and it is further

Ordered, that the County Committee, and Executive Committee of the Suffolk County Working Families Party, and Charles J. Pohanka, and Donna Lent as the presiding officer and secretary respectively, are hereby enjoined from issuing certificates of authorization, and /or certificates of substitution, so long as the State Rules for the Working Families Party remain in effect, and it is further

Ordered, that the petitioners' application for an order of contempt against respondents Pohanka, Lent, Richter-Geier, and Katz is denied in its entirety.

This constitutes the decision and order of the Court.

E N T E R

DATED: October 23, 2007

_________________________________

HON. ARTHUR M. DIAMOND

J.S.C.

To:

Attorney for Petitioners

LAWRENCE H. SILVERMAN, ESQ.

350 Veterans Memorial Highway

Commack, NY 11725

631-543-5434

Attorney for Respondents

Pohanka, Lent, Executive Comm. of SuffolkCounty Working Families & Burke

VINCENT J. MESSINA, JR.

267 Carleton Ave, Ste. 301

Central Islip, NY 11722

631) 582-9422Attorneys for Respondents SC Board of Elections, and Comms. Richter-Geier & Katz,

JASPAN SCHLESINGER HOFFMAN LLP

300 Garden City Plaza

Garden City, NY 11530

746-8000

FAX 393-8282

Attorney for Respondent Daniel Losquadro

STEVEN E. LOSQUADRO

649 Route 25A, Suite 4

Rocky Point, NY 11778