Matter of Henry v Trotto (2008 NY Slip Op 51727(U))

Matter of Henry v Trotto

2008 NY Slip Op 51727(U) [20 Misc 3d 1134(A)]

Decided on August 13, 2008

Supreme Court, Suffolk County

Scheinkman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

This election law proceeding was commenced by candidate Jennifer A. Henry ("Henry") and objectors Margaret B. Shaw ("Shaw") and Robert Hulse ("Hulse"), collectively "Petitioners", against candidates Hertha C. Trotto ("Trotto") and Cameron Alden ("Alden") and the Suffolk County Board of Elections ("Board of Elections") to invalidate the Republican Party Designating Petition of Trotto and Alden for the public office of Judge of the District Court of Suffolk County, Fifth District, Town of Islip.

Henry is a candidate for the nomination of the Republican Party for Judge of the District Court of Suffolk County, Fifth District, Town of Islip, pursuant to a Designating Petition which was timely filed and not subject to any challenge. Trotto and Alden are the candidates named on a different Republican Party Designating Petition timely filed for the same public office filed with the Board of Elections (the "Trotto/Alden Designating Petition"). The Trotto/Alden Designating Petition contains 2,172 signatures. It is undisputed that 2,000 signatures are required.

Shaw and Hulse, qualified Republican Party voters, timely filed General Objections, dated July 14, 2008, to the Trotto/Alden Designating Petition. Shaw and Hulse timely filed Specifications of Objections on July 21, 2008. On July 29, 2008, the Commissioners of the Board of Election sustained objections to 152 signatures, leaving the Trotto/Alden Designating Petition with 2,020 signatures not found invalid and, therefore, by split decision of the Commissioners ^[FN1], the Trotto/Alden Designating Petition was found to be valid.

On July 22, 2008, Shaw and Hulse, joined by candidate Henry, submitted a Verified Petition to the Supreme Court, Suffolk County, and procured the issuance of an order to show cause by Hon. Gary J. Weber, Acting Supreme Court Justice. The proceeding was made returnable on July 31, 2008.

By order of Hon. Jan H. Plumadore, Deputy Chief Administrative Judge, issued July 29, 2008, the undersigned was assigned to the Supreme Court, Suffolk County, to hear and determine the proceeding. Counsel for the parties appeared before this Court, sitting in Westchester County, on the return date and, on that date, established a schedule for further proceedings. Pursuant to the established schedule, the Court conducted a hearing on August 6, 2008 at the offices of the Board of Elections in Yaphank, New York for purposes of obtaining evidence and documents from the election officials. The Court continued the hearing on August 7, 2008 at the John P. Cohalan, Jr. Courthouse in Central Islip. Counsel waived closing statements and, instead, timely submitted post-hearing briefs on August 9, 2008. [*2]

The Court expresses its gratitude to District Administrative Judge H. Patrick Leis for the many courtesies and the cooperation extended, as well as its equally deep appreciation to Senior Court Clerk Richard Marasia, to Court Reporter Hannelore Weiss, and to Court Officers Todd C. Kosinski and Chavonne M. Bass

for their invaluable assistance. The attorneys in this matter, especially those representing the rival candidates, are highly skilled and knowledgeable and, while zealously representing the interests of their clients, conducted themselves with a high degree of professionalism. Their oral presentations, as well as their written submissions, were of great quality and materially assisted the Court in the resolution of the questions presented.

On the return date, July 31, 2008, counsel for Trotto and Alden served and filed a written motion to dismiss. The Court scheduled a hearing on any factual issues presented by the motion to dismiss for August 5, 2008 at 2:30 p.m. Counsel for Petitioners submitted written opposition papers on August 4, 2008 and reply papers were submitted on August 5, 2008. However, counsel for all parties submitted, on August 4, 2008 at 4:43 p.m., a written stipulation in which it was agreed that the hearing would be dispensed with it. Accordingly, the Court cancelled the hearing. The motion to dismiss will, therefore, be decided solely on the basis of the papers submitted.^[FN2]

The motion to dismiss raises two distinct questions. First, it is asserted that Alden was not properly and timely served with process and that, therefore, the Court lacks jurisdiction to entertain the proceeding. Second, it is contended that the Verified Petition contains allegations made on information and belief and lacks the required level of specificity to be heard on its merits.

1.Service on Respondent Alden

The Order to Show Cause issued on July 22, 2008 authorized Petitioners to effect service of the Order to Show Cause and supporting papers on the Respondent candidates by use of any of four methods: (1) by personal delivery to the candidates; (2) by service upon a person of suitable age and discretion "at the residence address given by" each candidate on the Designating Petition filed with the Board of Elections; (3) affixing the papers to the outer or inner door of the residence of each of the candidates "at the address set forth in their Petitions filed with the Board of Elections"; or (4) mailing, on or before July 24, 2008, by first class mail "to the address specified by [*3]the Respondent candidates in their Petition filed with the Board of Elections". As to the last method, while Petitioners had proposed to mail the papers by an overnight delivery service, Acting Justice Weber struck the provision for use of overnight delivery service and substituted a directive that first class mail be used instead and that certificates of mailing be obtained.

No question has been raised regarding service upon candidate Trotto or upon the Board of Elections. The issue in question is whether candidate Alden was properly served within the time allowed by the Election Law. Section 16-102 (subd. 2) of the Election Law mandates that a proceeding with respect to a petition must be commenced within 14 days after the last day to file the petition. It is undisputed that the last day to commence judicial proceedings with respect to petitions this year was July 24, 2008.

On July 23, 2008, copies of the Order to Show Cause and Petition were served upon Jack Mennella, a legislative aide to Alden, who is a Suffolk County Legislator, at Alden's legislative office in Islip. The papers were never delivered to a person of suitable age and discretion at Alden's residence, also in Islip.

While the Order to Show Cause permitted service to be made upon a person of suitable age and discretion, and there is no question but that the legislative aide is a person of suitable age and discretion, the Order to Show Cause specified that service upon a person of suitable age and discretion was to be made at the candidate's residence address, a provision crafted by Petitioners in their proposed Order to Show Cause and not changed by Acting Justice Weber.

While it could be argued that serving a person of suitable age and discretion at Alden's office was just as good a method of service as serving a person of suitable age and discretion at Alden's residence, the mode of service provided for in the order to show cause commencing an election law proceeding is jurisdictional in nature and must be complied with. Thus, the service on Alden's legislative aide is ineffective to give rise to jurisdiction over Alden. See, e.g., Matter of Bruno v. Ackerson, 51 AD2d 1051 (2d Dept. 1976), affirmed on App. Div. memorandum, 39 NY2d 718 (1976) (service upon person of suitable age and discretion improper where order required affixing to door); Matter of Fratello v. Kruger, 64 AD2d 937 (2d Dept. 1978) (placing papers in mailbox improper where order required affixing to door); Matter of Weiser v. Power, 29 AD2d 640 (2d Dept. 1968) (delivery of papers to landlord who lived in the apartment below not delivery to a person connected to candidate's household); see also Matter of Master v. Pohanka, 43 AD3d 478 (2d Dept. 2007); Matter of Hennessey v. DiCarlo, 21 AD3d 505 (2d Dept. 2005); leave to appeal denied, 5 NY3d 706 (2005): Matter of Wilson v. Bush, 175 AD2d 934 (2d Dept. 1991).

While Petitioners' attempt to invoke the option of delivery to a person of suitable age and discretion fails, that failure will not necessitate dismissal if Petitioners [*4]did properly invoke another method allowed by the Order to Show Cause. Matter of Master v. Pohanka, 43 AD3d 478 (2d Dept. 2007); Matter of Reilly v. Scaringe, 133 AD2d 900, 901 (3d Dept. 1987), leave to appeal denied, 70 NY2d 609 (1987).

The Order to Show Cause allowed Petitioners to effect service by mailing the papers to Alden by first class mail to his residence address on or before July 24, 2008. It is conceded that the papers were placed in the mail to Alden on July 23, 2008 and that the mailing was attested to by a certificate of mailing indicating that the papers were mailed on that date from a post office in Babylon, New York.

The service upon Alden's legislative aide cannot be tacked to the mailing to Alden's residence for the purpose of having the acts combined to be "personal service". See CPLR 308 (subd. 2). This is because the Order to Show Cause did not authorize "personal service" upon the candidate, insisting upon either delivery to the candidate personally or by the specifically delineated forms of substituted service. Cf. Matter of Reilly v. Scaringe, 133 AD2d 900 (3d Dept. 1987), leave to appeal denied, 70 NY2d 900 (1987).

In his motion to dismiss, Alden argues that July 23, 2008 was the next to last day to commence proceedings and service by mail on the next to last day is not reasonably calculated to be complete prior to the expiration of the statute of limitations.Alden's affidavit in support of his motion to dismiss is carefully crafted.^[FN3] He states that he never observed or received the papers "by means of same being taped to any door of [his] residence address", never received the papers "from [a] person of suitable age and discretion who may have been at my home" on July 23 or July 24; and never received the papers by "personal delivery". (Affidavit of Cameron Alden, sworn to July 31, 2008, ¶¶5, 6, 8). However, he never denies that he received the papers by mail and, in particular, does not deny receiving them on July 24, 2008.

In opposition to the motion, counsel for Petitioners notes both that: (a) Alden did not deny that he received the mailed papers on July 24, 2008; and (b) that Trotto, who was served in a similar fashion at the same time, did not dispute service at all. Counsel also asserts that, according to a "reputable internet mapping service", the distance from the Babylon post office to Alden's residence in Islip is 8.27 miles. It is also asserted that, according to a 2006 report to Congress on United States Postal Service delivery performance, most local service area mail is to be delivered within 1 [*5]day, with local service being defined as being within the area served by the destinating mail processing center. According to a July 24, 2008 Press Release issued by the United States Postal Service submitted by Petitioners, first class mail with an overnight delivery standard was on time during April, May and June, 2008 96.8% of the time. Petitioners also point out that the Specifications of Objection were mailed from the Babylon Post Office to Alden's residence on July 21, 2008 by certified mail and the acknowledgment of receipt, returned to Petitioners' counsel, bears a Postal Service stamp of July 22, 2008, which counsel reads as showing that the papers were received on July 22, 2008 the day after they were mailed. Based on these statements, Petitioners argue that, under the circumstances, service upon Alden by mail on July 23, 2008 would be reasonably be expected to be received on July 24, 2008, and thus within the statute of limitations.

In reply, counsel for Alden and Trotto submitted a reply affirmation and a reply memorandum of law. No reply affidavit from Alden was submitted. In the reply affirmation, counsel explains that service on Trotto was not being contested because, in addition to service by mail, Trotto was served by affixation of the papers to the front door of her residence, while Alden was not served by affixation to the front door of his residence. Counsel notes that the United States Postal Service reports that the delivery objective for first class mail is one to three days and that the delivery times are not guaranteed, noting that even overnight delivery by Express Mail is not guaranteed. However, the information supplied by Respondent candidates relates to mail generally in the United States and does not deal with the issue of distance, i.e., the closer the address to which the mail is addressed is to the point of deposit, the more likely it is to reach the address sooner.

Counsel for Respondent candidates points out that the published hours of the Babylon Post Office are from 9:00 a.m. to 7:00 p.m., thus suggesting that overnight delivery might not occur if the mail was dropped off late in the evening. Counsel also notes that the documents submitted by Petitioners' counsel contain conditional language to the effect that most first class mail is delivered in 1 day when sent within the local service area. He avers that the relatively short distance between the Babylon Post Office and Alden's residence does not necessarily mean that the locations are within the same local service area. As to the overnight delivery of the mail containing the Specifications of Objections, counsel for Respondents agrees that the acknowledgment of receipt bears a Postal Service stamp of July 22, 2008 but contends that there is no indication on the face of the document as to the meaning of the stamp and no affidavit has been supplied from a United States Postal Service employee or any expert as to the meaning of the stamp.

On the return date, one of the attorneys for Petitioners represented that he had effected the mail service upon Respondent candidates and counsel for the Respondent candidates conceded the representation of service, attested to in the affidavit of service, to be truthful. [*6]

The issue posed by this aspect of the motion to dismiss is whether mailing by first class mail of papers initiating an election law proceeding one day prior to the expiration of the statute of limitations sufficient for the timely acquisition of jurisdiction over a respondent candidate. Both Petitioners and the Respondent candidates frame the question as whether mailing on the next to last day is a method reasonably calculated to give notice within the statutory period, though they urge different answers to that question.

Service by mail, if authorized by the court in the order to show cause, is a valid means of service in an election law proceeding, provided that the service is of a kind reasonably calculated to give notice of the relief sought to the person affected, with fair regard to the necessities of the case requiring prompt action. Matter of Lyden v. Katz, 10 NY2d 891 (1961), adopting reasons stated in Special Term op., 29 Misc 2d 1072, 1075 (Sup. Ct. Putnam County 1961) (James D. Hopkins, J.).

It is well settled that service by mail on the last day to commence proceedings is ineffective as such service is not reasonably calculated to give the necessary parties timely notice of the proceeding. See, e.g., Matter of Moore v. Milhim, 109 AD2d 810 (2d Dept. 1985); see also Matter of Yellico v. Ringer, 185 AD2d 965 (2d Dept. 1992); Matter of Elston v. Mahoney, 122 AD2d 969 (3d Dept. 1986). This settled law is predicated upon the rather obvious fact that mail is rarely, if ever, delivered on the same day that it is posted. Beyond this, however, the cases are somewhat divergent, a divergence that appears attributable to two decisions of the Court of Appeals rendered just over one month apart, over thirty years ago.

In Matter of Thompson v. New York State Board of Elections, 40 NY2d 814 (1976), the Court held that service by mail is incomplete in election law matters where the persons to be so served do not receive delivery within the 14-day period. On the other hand, in Matter of Contessa v. McCarthy, 40 NY2d 890 (1976), decided on the heels of Thompson, the Court held that mail service was sufficient where it was made at such time and in such manner as would normally be expected to result in receipt by the addressees within the statutory period. In Contessa, the Court stated that where the mailing occurs in such a manner that timely receipt would normally be expected, and the fact of mailing is conceded, "proof of actual receipt of the mailing is not required." 40 NY2d at 891. The Court further explained that the cases in which it had been concerned with actual receipt did not involve situations where it might be reasonably expected that receipt would occur within the statutory period. "In such instances it then became critical, of course, to determine whether actual receipt had in fact been timely". Id.

As a result of these cases, the respondent's denial of timely receipt of mailed papers, even if credible, does not warrant dismissal where the circumstances of the mailing were reasonably calculated to achieve service within the required time. See Matter of Santiago v. Westchester County Board of Elections, 8 Misc 3d 1027(A), 2005 [*7]WL 1992236 (Sup. Ct. Westchester County 2005). Petitioners are not held responsible for mail service delays beyond their control. Matter of Wager v. New York State Board of Elections, 59 AD2d 729, 730 (2d Dept. 1977), affirmed on App. Div. mem., 42 NY2d 1100 (1977). In Wager, the order to show cause issued on September 28 permitted service by certified mail on or before September 30. On October 1, one of the respondents found a postal service notification in his mailbox advising him to go to the post office to pick up certified mail as to which delivery had been attempted that day. However, the post office was closed on October 1 and the mail could not be retrieved until October 3. The Second Department, affirmed by the Court of Appeals, held that, despite the fact that the papers had not been timely received by the addressee, the service was still timely as the delay was not attributable to circumstances within the control of the petitioner.

Perhaps surprisingly given the number of election law cases litigated over the past thirty years, no case has been cited by the parties, or has been found by the Court, which explicitly deals with service made by mail on the day prior to the last day to commence proceedings. Nevertheless, there are a number of cases which are instructive.

In Matter of Hervey v. Greene County Board of Elections, 166 AD2d 743 (3d Dept. 1999), petitioners caused the papers to be mailed by first class mail on September 25, two days prior to the expiration of the limitations period. However, the respondents did not receive them until September 28, one day after the period expired. The Court held that service was timely as "there is nothing to dispute Supreme Court's finding that two days is a normal delivery period for mail sent from Albany in Albany County to the Village of Catskill in Greene County". 166 AD2d at 744.

In Matter of Fulani v. Barasch, 166 AD2d 741 (3d Dept. 1999), leave to appeal denied, 76 NY2d 710 (1999), the papers were mailed on September 1 which was a Saturday, with the next day, September 2 being a Sunday, and the day after that, September 3, being Labor Day. As a result, the respondent contended that the mailing was not actually effected until September 4, the next business day. The Third Department held that service was timely as it was reasonable to expect receipt within the required time frame as the mailing was conceded and that proof of actual receipt was not required. See also Matter of Baldwin v. Scaringe, 176 AD2d 993 (3d Dept. 1991).

In Matter of Santiago v. Westchester County Board of Elections, 8 Misc 3d 1027(A), 2005 WL 1992236 (Sup. Ct. Westchester County 2005), the papers were mailed at 8 p.m. on July 25 from a post office in Brooklyn, New York to candidates residing in Yonkers, New York. The statute of limitations expired on July 28 and the candidates testified that they actually received the papers on July 29. A hearing was held and postal experts testified. One expert opined that mail from Brooklyn to Yonkers would be delivered within one to three days around 95% of the time. The other expert [*8]testified that the mail would be delivered within one to three days between 60% to 80% of the time. Although there was no guarantee of first class mail delivery within any particular period, both experts agreed that they would normally expect a letter sent from Brooklyn to be delivered in Yonkers within three days. The Court held that, even though the respondents did not actually receive the papers on time, the method used was still one that would normally be expected to result in timely receipt. See also Matter of Leahy v. O'Rourke, 307 AD2d 1008 (2d Dept. 2003).

It is useful to take note of some cases dealing with service by Express Mail. In Matter of Stabile v. DeFronzo, 231 AD2d 577 (2d Dept. 1996), the papers were delivered to the United States Postal Service at 11:55 p.m. on October 12, with instructions for second day delivery. The statute of limitations expired on October 13 and the papers were not received until October 14. The Court held that the service was not reasonably calculated to be timely received. See also Matter of Silkowski v. Cacase, 308 AD2d 425 (2d Dept. 2003), leave to appeal denied, 100 NY2d 510 (2003).

Since the papers in Stabile were not deposited until 5 minutes before the start of the last day, the case is akin to the cases involving mailing on the last day. It also seems apparent that had the mail, in fact, been delivered on October 13, because of unexpected diligence on the part of the Postal Service, the proceeding would have been timely as measured by actual receipt on the last day. This point is made by Matter of Leahy v. O'Rourke, 307 AD2d 1008 (2d Dept. 2003), reversing, 2003 WL 21960256 (Sup. Ct. Nassau County 2003). In that case, the Express Mail package was deposited with the Postal Service at 10:15 p.m. on July 23 and accepted for delivery to the respondent candidate at her residence in Sea Cliff, Long Island by 12:00 p.m. the next day, July 24, which was the last day to commence proceedings. The package was, in fact, delivered the next day, July 24, but because the party was not home and the "waiver of signature" box was not selected, the package was not left at the party's residence by the mail carrier. Nevertheless, the case was one in which the papers were, in fact, timely delivered to the party's residence and the delay in actual receipt by the candidate was not due to a circumstance in the petitioner's control.

Here, in response to the motion to dismiss, Petitioners have presented documentary material which indicates that mail sent within a local postal service area is delivered the next day virtually all of the time ^[FN4]. It is also shown that the mail was deposited at the Babylon Post Office, rather than in a mail box from which the mail would have to be retrieved and then transported to the Post Office. While it is true that Petitioners have not shown the time of deposit, the fact is that, by having deposited the mail in the Post Office during its hours of operation, the mail was not subject to delay in [*9]reaching the Post Office.

Accordingly, the Court concludes that service by mail accomplished by deposit at the Babylon Post Office on July 23 was reasonably calculated to be received at the Alden residence on July 24. While it is true, as counsel for the Respondent candidates points out, that Petitioners have not shown that Babylon and Islip are within the same service area, the Court believes that it is a matter of common knowledge and experience that mail deposited in a post office on one day, properly addressed to a location less than ten miles away, will generally be delivered the next day. See Dulberg v. Equitable Life Assurance Society, 277 NY 17, 21 (1938) (judicial notice taken that mail from Brooklyn to Manhattan would be delivered the next day); News Syndicate Co. v. Gatti Paper Stock Corp., 256 NY 211, 214 (1931) (judicial notice taken that a letter sent from one office in New York City to another office in New York City will be delivered on the next day); accord, Morel v. Stearns, 37 Misc. 486 (App. T. 1902). While it is true that overnight delivery of first class mail is not guaranteed, the fact that it does occur an overwhelming percentage of the time makes it reasonable to expect that, on the distances involved here, first class mail deposited in the Babylon Post Office would be received in Islip the next day.

The presumption of next day delivery is strengthened in this case by the prior experience with the mailing of the Specifications of Objection. See News Syndicate Co. v. Gatti Paper Stock Corp., supra (presumption of next day delivery strengthened by prior correspondence which indicated that one party responded to a letter dated the same date as the letter being responded to).^[FN5] Petitioners have shown that the Specifications, which, like the court papers, were a multi-page document, were mailed to Alden's residence in Islip from the post office in Babylon on July 21 and were actually received on his behalf the next day, July 22. Though counsel for Respondent candidates contend that the stamp affixed by the Postal Service dated July 22 is not self-explanatory, the Court views the date stamp as indicating either the date that the return receipt was received back from Alden or the date that the return receipt, with its signed acknowledgment of receipt, was mailed back to Petitioners' counsel (something that would itself indicate that the document had been received). It is a matter of common knowledge, and again, a fit subject for judicial notice, that the postal authorities postal indicate the date of actual delivery by appropriate markings on the return receipt card before returning it to the sender. Finest Restaurant Corp. v. L & A Music Corp., 52 Misc 2d 87, 89 (Sup. Ct. NY County 1966). Further, the Postal Service marking on the receipt indicates "Long Island 117"; the Court notes that the Babylon Post Office Zip Code is 11702 and the Zip Code for Alden's residence address in Islip is 11751. [*10]

Of considerable significance, too, is the fact that Alden has not denied timely receipt of the mailed papers, despite having three opportunities to do so. First, he did not deny timely receipt in his affidavit in support of the motion. Second, despite the fact that the absence of such a denial was specifically pointed out by Petitioners in their opposition papers, Alden did not submit an affidavit as part of the reply papers. Third, despite being afforded the opportunity for a hearing, Alden joined in the waiver of the hearing.

Alden's failure to deny timely receipt of the mailed papers defeats his motion. See Matter of Oppenheimer v. Carozza, 275 AD2d 427 (2d Dept. 2000); see also Matter of Marcoccia v. Garfinkle, 307 AD2d 1010 (2d Dept. 2003). This is because Alden, having raised by motion defenses sounding in lack of personal jurisdiction and bar of the statute of limitations, has the burden of proof on those issues. See CPLR 3018; CPLR 3211(a)(5),(8).

In this regard, the Court notes that, while Alden had three opportunities to controvert timely receipt and did not do so, it would, as a practical matter, be very difficult, if not impossible, for Petitioners to prove actual timely receipt. Even if someone happened to observe someone retrieving the mail from the mailbox at the Alden residence on July 24, it is unlikely that such a person would be in a position to observe what mail was retrieved. Moreover, it is at least possible that circumstances were such that there was no one at the Alden residence who retrieved the mail on July 24. In any event, because Alden, or someone at his household, was in the best position to attest to whether the papers were received on July 24 and did not do so, the Court is warranted in drawing the inference that Alden could not, in fact, deny timely receipt. See, e.g., Noce v. Kaufman, 2 NY2d 347, 351 (1957) (where an adversary withholds evidence in his possession or control that would be likely to support his version of the case, the strongest inferences may be drawn against him which the opposing evidence in the record permits).

In sum, that generally mail from the Babylon Post Office will reach Islip overnight and that it did reach Islip overnight on a recent prior occasion supports a conclusion that it was reasonable to expect overnight delivery and Alden has not denied that overnight delivery was made.

Accordingly, the motion by the Respondent candidates to dismiss for failure to timely serve Alden should be denied.

2.Failure to Make Specific Allegations

The second argument advanced in support of the motion to dismiss is that the Verified Petition is insufficiently specific in setting forth the irregularities claimed in the Trotto/Alden Designating Petition. As the candidate Respondents properly point out, Paragraph 12 of the Petition generally alleges, "upon information and belief" that the challenged Designating Petition is insufficient, ineffective and invalid. However, [*11]Paragraph 12 does not end there; rather it continues and alleges that the Designating Petition is "null and void by reason of allegations contained herein, including but not limited to the Specific Objections filed with the Respondent Suffolk County Board of Elections by the Petition[ers]- Objectors, which Objections are incorporated herein by reference."

Paragraph 13 alleges, also upon information and belief, certain categories of claimed defects: (a) the Designating Petition does not contain the minimum number of required valid signatures; (b) many signors have not registered from the residence address given in the Designating Petition and are not qualified voters of the location stated; (c) many signers had earlier signed Designating Petitions for other candidates; (d) materal alterations and/or corrections were made to petition sheets without being initialed and/or dated; (e) several subscribing witnesses were either not enrolled in the Republican Party or were not enrolled at the address stated; (f) petitions for other candidates were included in the Designating Petition; (g) the Designating Petition is replete with multiple signatures in the same handwriting, printed names instead of signatures, and initials of signatories and/or subscribing witness. However, nowhere in Paragraph 13 are any of the deficiencies claimed specifically identified by reference to Sheet and Line number. Respondent candidates also assert that copies of the Designating Petitions and the Objections thereto were not physically attached to the Verified Petition.

It is well settled that a general recitation of the basis for invalidation, coupled with incorporation by reference of detailed specifications previously filed with the Board of Elections is sufficiently specific for a petition seeking to invalidate a designating petition. See, e.g., Matter of Oberle v. Caracappa, 133 AD2d 202 (2d Dept. 1987); accord, Matter of Mazza v. Board of Elections, 196 AD2d 679 (3d Dept. 1993); see also Matter of Waugh v. Nowicki, 10 AD3d 437 (2d Dept. 2004), leave to appeal denied, 3 NY3d 603 (2004). Where the petitioner relies upon general objections and specifications filed with the Board of Elections and the petition in a subsequent judicial proceeding incorporates those specifications by reference, the failure to attach a copy of the specifications to the court petition is not a fatal defect warranting dismissal of the judicial proceeding. Matter of Cohen v. Moss, 97 AD2d 644 (3d Dept. 1983), leave to appeal denied, 60 NY2d 558 (1983).

Here, it is undisputed that general objections were timely filed by Shaw and Hulse and that Specifications of Objections were also timely filed. It is also undisputed that the general objections and Specifications of Objections were duly served upon the Respondent candidates. In particular, as above discussed, the Specifications were received by Alden on July 22, 2008, more than one week in advance of the return date of this proceeding. The Specifications of Objections are detailed.

Accordingly, the Court concludes that, to the extent that the Verified Petition is predicated upon the detailed Specifications of Objection previously filed with [*12]the Board of Elections, the Petition is sufficiently detailed to withstand the motion to dismiss. In particular, the Respondent candidates were placed on notice of the specific issues raised before the Board of Elections and raised before the Court. Therefore, the motion to dismiss should be denied.

However, the Court also notes that, during the hearing, Petitioners attempted to raise additional objections not set forth in the Specifications previously served and filed with the Board of Elections. While it is true, as Petitioners assert, that the Court has jurisdiction to hear objections to signatures other than those objected to before the Board of Elections, it is equally true that fundamental notions of due process require that a candidate be given some notice of which signatures on his petition are being challenged. Matter of Belak v. Rossi, 96 AD2d 1011 (3d Dept.1983), leave to appeal denied, 60 NY2d 552 (1983); accord, Matter of Santoro v. Schreiber, 263 AD2d 953 (4th Dept. 1999), leave to appeal dismissed, 94 NY2d 917 (1999) (error to invalidate petition on grounds not raised in objections or in judicial petition as fundamental fairness requires prior notice of grounds for challenge); Matter of O'Toole v. D'Apice, 112 AD2d 1078 (2d Dept. 1985) (blunderbuss charge which fails to set forth facts which would place candidate on notice of the claimed irregularities or errors insufficient); cf. Venuti v. Westchester County Board of Elections, 43 AD3d 482 (2d Dept. 2007), leave to appeal denied, 9 NY3d 804 (2007) (additional objections properly entertained where the court petition gave adequate notice as to precisely which signatures were being challenged; Matter of Edelstein v. Suffolk County Board of Elections, 33 AD3d 945 (2d Dept. 2006) (objections not raised before Board of Elections properly considered where candidate was given sufficient notice thereof).

In this case, because the Verified Petition did not give notice of precisely what additional signatures were being challenged beyond those specified in the Specification of Objections, the due process rights of the Respondent candidates may be honored by generally refusing to permit Petitioners to prove defects not listed in the Specification of Objections to the extent that Respondent candidates were not apprised of such additional objections prior to the return date of this proceeding. See Matter of Levitt v. Mahoney, 133 AD2d 516 (4th Dept. 1987); but see Matter of Starr v. Board of Elections, 89 AD2d 978 (2d Dept. 1982) and Matter of Smith v. Marchi, 143 AD2d 325 (2d Dept. 1988). However, as discussed further infra, Petitioners press only one objection not contained in the Specification of Objections and notice of the supplemental objections was given well prior to the return date. Further, Respondent candidates have not shown how they would sustain any prejudice as the result of permitting the allegations of which they were specifically put on notice prior to the return date being determined on the merits. Matter of Mazza v. Board of Elections, 196 AD2d 679, 680 (3d Dept. 1993).

Accordingly, the motion to dismiss to the extent predicated on the ground of lack of specificity should be denied. [*13]

Having determined that the motion to dismiss should be denied in all respects, the Court now turns to the merits of the challenges presented by Petitioners.

While the Court reviewed the objections on a line-by-line basis during the proceeding at the Board of Elections offices, it is appropriate to discuss certain objections before proceeding to a line-by-line review of the objections.

1.Subscribing Witness Ricky Hicks

Ricky Hicks acted as the subscribing witness on Sheet 13 of the Trotto/Alden Designating Petition. In the Statement of Witness, Hicks stated: "I am a duly qualified voter of the State of New York and am enrolled voter of the Republican Party. I now reside at (residence address) P.O. Box 268 Islip Terrace, NY" The Witness Identification Information, which is entirely pre-printed, states that "Witness resides in the Town of Islip County of Suffolk".

Hicks acted as witness to 17 signatures. However, the signature appearing at Line 17 was invalidated by the Board of Elections for reasons other than the claimed defect as to the subscribing witness. Accordingly, there are 16 signatures at issue on Sheet 13, which were objected to on the Specifications on the ground that the subscribing witness was not registered or not registered at the address given.

The statutorily-mandated form of subscribing witness statement requires that a subscribing witness state his or her residence address, including a statement, to be made under penalty of perjury, that he or she "now reside[s] at" the address stated. Election Law, §6-132 (subd. 2). This requirement is imposed so that the witness may be served with a subpoena to attend court and so that election officials and other interested persons may readily check the witness' voting registration records to verify that the witness is, in fact, an enrolled voter of the relevant political party.

A post office box is not a residence address. Matter of Liepshutz v. Palmateer, 112 AD2d 1101 (3d Dept. 1985), affirmed, 65 NY2d 965 (1985); Matter of Ike v. DiPronio, 96 AD2d 1134 (4th Dept. 1983); Matter of Hess v. DiPronio, 96 AD2d 1134 (4th Dept. 1983). Thus, the provision by a subscribing witness of a post office box where mail be sent does not comply with the statutory requirement that a subscribing witness state his or her residence address. While a person may use a post office box as a place to have mail delivered, it is not a place where the person lives or works and is not a place where the person can be physically contacted. See Matter of Fibernet Telecom Corp. v. East Coast Optical Services, 195 Misc 2d 461, 462-463 (Sup. Ct. NY County 2002). [*14]

The term post office address embraces the situation where the signer's residence is served by a post office which does not bear the same name as the town or city in which the voter resides, as where the voter lives in a village which has its own post office or where the voter lives in an unincorporated area of a town, which area is a named hamlet. It may also apply to a circumstance where the signer's residence is not a named street or where the signer's residence does not have an assigned street number. The term "post office address" relates to the name of the geographical area in which is located the post office which serves the particular address in question. A post office box should not be regarded as a "post office address" within the meaning of the statute as a person could procure a post office box anywhere, not necessarily even in the area in which the person lives or even in the relevant political subdivision or county, and the use of a post office box sheds no light on where the person actually resides.

In any event, even assuming that a post office box does qualify as post office address, Section 6-134 (subd. 2) provides that, if there is a specific objection to a signature for which a post office address is used, then proof must be submitted that the address is the accepted address of the signer within 3 days following receipt of the specific objections to the challenged signature. The failure to provide such proof within the time allowed by the statute renders the signature invalid. Matter of Ligammari v. Norris, 275 AD2d 884 (4th Dept. 2000); see Matter of Ptak v. Erie County Board of Elections, 307 AD2d 1072 (4th Dept. 2003).

Board of Elections records received into evidence show that Hicks filed a registration document on July 27, 2001, apparently for the purpose of recording a different mailing address. On the subject form (Ct. Ex. 7), Hicks gave his residence address "Where You Live (do not give P.O. address)" as being 124 Jefferson Street, East Islip as well as an address for mail purposes of P.O.Box. 268, Islip Terrace. Thus, under the statute, the signatures on Sheet 13 could have been redeemed, and substantial compliance with the statutory requirements achieved, by the timely submission of evidence to the Board of Elections that Hicks' accepted residence address is 124 Jefferson Street, East Islip. However, this was never done at any time. Accordingly, the signatures taken by Hicks are invalid for that reason alone. But there is more.

Hicks was called as a witness by the Respondent candidates. In the process of being sworn as a witness, he gave his address as 51 New Hampshire [*15]Avenue, Massapequa, New York. He testified that he is not registered to vote at the Massapequa address. He testified that he uses the post office box for "bail stuff, mail stuff". On cross-examination, Hicks admitted that he is not a resident of the Town of Islip in Suffolk County but, instead, is a resident of Massapequa (Town of Oyster Bay) in Nassau County and was told to use the post office box. In response to a question from the Court, Hicks testified that he had been living in Massapequa for close to three years.

In Matter of LaBrake v. Dukes, 96 NY2d 913 (2001), the Court of Appeals held that the provision of Section 6-132(subd. 2) of the Election Law, which requires subscribing witnesses to be resident in the political jurisdiction in which the subject office or party position is to be voted for, was unconstitutional. As a result, it would be perfectly lawful for a duly enrolled Republican resident in Nassau County to circulate designating petitions for District Court Judge in Suffolk County. That said, however, the Court of Appeals also stated in LaBrake that the State has a compelling, and constitutional interest, in protecting the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition, an interest which is satisfied by the dual requirement that the witness's address be disclosed and that the witness be a resident of the State. 96 NY2d at 915.

A subscribing witness must be a qualified voter. Election Law, §6-132 (subd. 2). In order to be a qualified voter, a person must be a resident of the county for at least 30 days prior to the election. See Election Law, §5-102 (subd. 1). Since Hicks testified that he moved from Suffolk County to Nassau County more than three years ago, his registration in Suffolk County should have been cancelled. See Election Law, §5-400.(subd. 1[a]). The Board of Elections is to permit persons to remain registered only if they continue to meet the legal requirements. See Election Law, §5-700. Since Hicks admitted that he had been living in Nassau County for close to three years, Hicks cannot be viewed as a duly qualified voter, as his registration would have been canceled had the true facts of his residence been known.

While it was the Respondent candidates who called Hicks to testify, the Court observes that Petitioners would not have been able to locate and subpoena Hicks as the East Islip address on the Suffolk County Board of Elections records had not been Hicks' address for nearly three years. Further, a check of the Suffolk County Board of Elections records did not bring Hicks' true residence address to light. While it is true that Hicks is a resident of New York State, it would be a manifestly unreasonable burden on Petitioners to require them to search the records of every board of elections in the State in an attempt to find the Ricky Hicks who was the subscribing witness on the Trotto/Alden Designating Petition.

In Matter of Lemishow v. Black, 63 NY2d 684 (1984), the Court of Appeals held that the signatures obtained by a subscribing witness were invalid where the place stated as his address on the statement of witness was not, in fact, his place of residence. Accord, Matter of Camardi v. Sinawski, 297 AD2d 357 (2d Dept. 2002). [*16]Accordingly, since Hicks did not state his proper residence address on the petition sheet and did not correct it despite the objection made by Petitioners, the sheet is invalid.

Further, it is also manifest that the Witness Identification Statement did not accurately set forth Hicks' Town and County of residence. Hick's identification of the Town of Islip, County of Suffolk, as the town and county of his residence, when he no longer had any legitimate, significant, and continuing attachment to any residence in the Town and County renders the signatures he collected invalid. Matter of Holt v. Ward, 43 AD3d 637 (4th Dept. 2007), leave to appeal denied, 9 NY3d 804 (2007); Matter of Isabella v. Hotaling, 207 AD2d 648 (3d Dept. 1994), leave to appeal denied, 84 NY2d 801 (1994); see generally Matter of Liepshutz v. Palmateer, 65 NY2d 965 (1985).

In Matter of Culey v. Zacek, 22 AD3d 954 (3d Dept. 2005), leave to appeal denied, 5 NY3d 714 (2005), the subscribing witness correctly listed his actual residence address within the relevant town and county, though he did not complete the "Town and County" portion of the Witness Identification Statement, though someone else added incorrect information as to the town or city. The Court held that the error in the Witness Identification Statement did not invalidate the signatures as the witness had stated his correct address in the subscribing witness statement and a person checking the witness' qualification could readily ascertain that he resided in a town that was within the relevant political subdivision. As a result, there was no impediment to prompt and efficient verification of qualifications and there was no possibility or inference of fraud. Here, the situation is far different. The witness did not give a residence address, rather a post office box, and the witness actually resides in a different County all together, making verification of his qualifications difficult and raising the prospect of fraud.

Conversely, an error in setting forth the correct town or city of residence in the Witness Identification Statement is not fatal where the complete and correct residence address appears in the witness statement. See Matter of Arcuri v. Hojnacki, 32 AD3d 658 (3d Dept. 2006), leave to appeal denied, 7 NY3d 707 (2006). Here, the error in the Witness Identification Statement is not cured as the witness statement does not contain the complete and correct residence address of Hicks.

The cases cited by the candidate Respondents are clearly inapposite. For example, in Matter of McLiverty v. Lefever, 133 AD2d 720 (2d Dept. 1987), the subscribing witness omitted his post office address, Pearl River (an unincorporated area of the Town of Orangetown), though he did list his street address and stated that he resided in the Town of Orangetown. Because he did state his street address and town of residence, and there was no indication that address was incorrect, misleading or confusing or that the defect would tend to lead to misidentification or confusion on the part of those seeking to verify his qualifications, the defect did not require [*17]invalidation of the signatures procured by the subscribing witness. Here, the address given was a post office box, which was misleading, particularly since the underlying street address on file with the Suffolk County Board of Elections was incorrect and the defects are such as to lead to misidentification and confusion. Moreover, there was no question in McLiverty that the witness lived where the election records said he lived. That is not the case here.

The reliance by the candidate Respondents on Frome v. Board of Elections, 89 AD2d 950 (2d Dept. 1982) is misplaced as the decision of the Appellate Division therein was reversed by the Court of Appeals, 57 NY2d 741 (1982), which held that the omission of "city or town" in a subscribing witness statement was a fatal defect.

Likewise, the candidate Respondents are not assisted by Matter of McManus v. Relin, 286 AD2d 855 (4th Dept. 2001), leave to appeal denied, 96 NY2d 718 (2001). There, the subscribing witness was in the process of moving from one apartment to another, with both the old and new addresses being within the relevant political subdivision (the City of Rochester). In some subscribing witness statements, the witness used his new address as his current address, though he not had yet moved. The Court found that this defect was not fatal. Here, Hicks moved nearly three years ago and moved outside of Suffolk County. Further, he used a postal box number in Suffolk County, thus masking his true address in a different County.

In Matter of Toporeck v. Beckwith, 32 AD3d 684 (4th Dept. 2006), the subscribing witness listed his address as "160-2 Arbour Lane" rather than 160 Arbour Lane, Unit 2. The Court concluded that this minor defect did not require invalidation of the signatures procured where information sought was apparent on the face of the form and the defect could not possibly confuse, hinder or delay any attempt to ascertain or to determine the identity, status and address of the witnesses. See also Matter of Tully v. Ketover, 10 AD3d 436 (2d Dept. 2004) (subscribing witness gave his correct street name and house number in statement of witness and Witness Identification Information set forth correct city and county). Here, of course, the situation is far more grave as the witness did not give his street address at all and it turned out that the witness does not even live in Suffolk County.

Finally, in Matter of Pulver v. Allen, 242 AD2d 398 (3d Dept. 1997), the subscribing witnesses did not list their street address in the witness statement, as the form did not contain a space for the insertion of the addresses. However, the correct information was added, after the petition had been filed with the board of elections, by other persons, outside the presence of the witnesses. The Court held that, under these circumstances, the addition of the information was not fatal and, in any event, there was sufficient compliance with the statute because the Witness Identification Information correctly stated the town and county of the witnesses' residence. Here, even if Hicks had left his street address blank, he would not be saved by the Witness Identification Information as such information, alleging that Hicks was a resident of the Town of Islip, [*18]County of Suffolk, was manifestly incorrect.

For these reasons, the Court concludes that all of the signatures witnessed by Hicks (save the one previously invalidated for other reasons), must be invalidated, resulting in the disqualification of 16 signatures.

2.Subscribing Witness Michael Dell'Acqua

Petitioners object to Sheet 70 of the Trotto/Alden Designating Petition which was witnessed by subscribing witness Michael Dell'Acqua. In the Statement of Witness, the date was written over; while the date originally inserted was June 24, it was changed to June 25, that is, the 4 was overwritten with a 5. This change was not initialed or dated and not explained on the face of the statement. The Court notes that Sheet 70 contains 20 signatures, 18 of which were dated on or before June 22; the last two signatures (lines 19 and 20) were dated June 25, 2008. None of the 20 signatures were invalidated by the Board of Elections.

It is established law that because the subscribing witness statement is essential to the integrity of the petition process, alterations made to the content of the statement must be initialed and explained, even if the change results in the manifestation of correct information. Matter of McGuire v. Gamache, 5 NY3d 444, 448 (2005); Matter of Abraham v. Ward, 43 AD2d 1271 (4th Dept. 2007). It does not unduly burden the petition process to require a subscribing witness whose statement has been changed to initial the change and explain the reason for the change. Matter of Jonas v. Velez, 65 NY2d 954 (1985). The date of signature of the subscribing witness is a matter of statutorily prescribed content and is important because signatures taken after the date appearing on the witness statement are invalid. See, e.g., Byrnes v. Board of Elections, 134 NYS2d 257 (n.o.r.) (Sup. Ct. Nassau County 1954), affirmed 284 App. Div. 847 (2d Dept. 1954), affirmed, 307 NY 816 (1954); Matter of Weiss v. Mahoney, 49 AD2d 796 (4th Dept. 1975).

It is also established law that the signatures appearing on a petition sheet on which there has been an uninitialed and unexplained change to the subscribing witness statement need not be invalidated where an explanation for the change is provided through testimony offered at the hearing. Matter of Rosmarin v. Belcastro, 44 AD3d 1055 (2d Dept. 2007); Matter of Culey v. Zacek, 22 AD3d 954 (3d Dept. 2005), leave to appeal denied, 5 NY3d 714 (2005).

Respondent candidates called Dell'Acqua to testify. The only material testimony offered by Dell'Acqua was as follows:

THE WITNESS:Looks like I wrote the wrong date and corrected it. A lot of times I don't ever really know the date. From my own job where every bill has its own date.

The question is whether this testimony from Dell'Acqua is sufficient to explain the correction. The point of the correction is whether he signed the Statement of Witness on June 24 or on June 25. Dell'Acqua did not state the date on which he made the correction, i.e., June 25 or some other later, time. The signatures on lines 19 and 20 bear a date of June 25; of great importance to the Court, Dell'Acqua did not testify that he made the change on the same date as he obtained the signatures on lines 19 and 20. In particular, Dell'Acqua did not state that he obtained the signatures on lines 19 and 20 prior to his completion of the Statement of Witness. Further, his testimony was predicated on his assumption that it looked like he wrote the wrong date and corrected it. While he stated that he generally may not know the correct date, he did not state when he noticed the error and when he corrected it and for, for that matter, his testimony did not give confidence that his correction was, in fact, correct.

Nevertheless, whether Dell'Acqua was right or wrong about whether the date that he signed the Statement of Witness was June 24 or June 25, the alteration has no effect on the signatures appearing on Lines 1 through 18. The first signature (Line 1) was obtained on June 7 and the last (Line 18) was obtained on June 22. Thus, whether the correct date was June 24 or June 25 makes no difference as it is clear that Dell'Acqua obtained those signatures prior to either date. At least, Petitioners have not shown that he did not. On the other hand, Dell'Acqua's ambiguous and conclusory testimony is insufficient to validate the signatures appearing on lines 19 and 20. Since Dell'Acqua did not explain when he made the alteration, and did not explain the relationship between the altered date on his witness statement and the dates of the signatures on Lines 19 and 20, the Court is convinced, based on Dell'Acqua's testimony and demeanor on the witness stand, that the alteration was made for the purpose of attempting to cure a fatal defect to the signatures on lines 19 and 20, i.e., that those signatures were obtained after Dell'Acqua had already completed the subscribing witness statement, a defect that was not observed until after June 25.

Respondent candidates called Dell'Acqua as a witness and their knowledgeable and experienced counsel could readily have called upon Dell'Acqua to explain what transpired with appropriate detail. While it is true that Petitioners have the burden of proof on the issue of the validity of the signatures obtained by Dell'Acqua, the [*20]fact that there was an alteration, which was not initialed or dated, appearing on the face of Dell'Acqua's witness statement cast upon Respondent candidates the obligation to provide a cogent and convincing explanation of the change made by Dell'Acqua. This, they failed to do. The Court concludes, based on its evaluation of the testimony offered by Dell'Acqua, its brief and conclusory nature, and his demeanor, that Dell'Acqua has failed to provide a cogent and convincing explanation for the change as it relates to the signatures on lines 19 and 20.

Accordingly, the Court sustains so much of Petitioners' objection to Sheet 70 of the Trotto/Alden Designating Petition as relates to the signatures on lines 19 and 20. The Court rejects the objection insofar as it relates to the signatures on lines 1 through 18.

3.Enrolled Democrat

It is axiomatic that a party designating petition may signed only by registered voters who are duly enrolled in the party. Election Law, §6-132 (subd. 1); Matter of Williams v. Pinkett, 59 AD2d 573 (2d Dept. 1977), leave to appeal denied, 42 NY2d 806 (1977). The signature purporting to be that of I Evlek or I Evleh, 11 Whitehall Court, Holbrook, New York, appears on Sheet 37, line 9. This signature was objected to on the ground that no first name was stated. The Board of Elections records indicate that there was an Ismail Evlek who was registered to vote and enrolled as a Democrat on September 19, 2000 at 769 Waverly Avenue, Holtsville, New York. The records also indicate that a mail notice of registration and polling place sent by the Board of Elections was returned to Sender "Evler 11 Whitehall Ct, Holbrook, NY". (Ct. Ex. 26). There was evidence that Laura L. Jordan was registered and enrolled as a Republican with an address of 769 Waverly Avenue, Holstville, New York in January 1997. (Ct. Ex. 24). Because the identity of the voter on the Trotto/Alden Designating Petition cannot be established by reference to the election registration records, the Court sustains the objection to this signature.

4.Signed Prior Petition

The Election Law requires the disqualification of a signature on a designating petition where the subscribing witness previously signed a valid designating petition of another candidate for the same office. Election Law, §6-134 (subd. 3); see, e.g., Matter of Venuti v. Westchester County Board of Elections, 43 AD3d 482 (2d Dept. 2007). Petitioners objected to the signature appearing on Sheet 21, line 9, and to Sheet 3, lines 5 and 6, on this basis.

The signature appearing on Sheet 21, line 9, is that of Paul Llobell, with a stated residence address of 90 River Road, Great River and is dated June 30, 2008. Examination of the Designating Petition filed by candidate Henry shows the signature of Paul Llobell at 90 River Road, Great River, dated June 28, 2008. Board of Elections records offered during the hearing at the Board of Elections showed the registration of [*21]an enrolled Republican named Paul V. Llobell III, born January 30, 1987, with an address of 90 River Road, Great River. (Ct. Ex. 11). Toward the end of proceedings in Central Islip on the next day, counsel for the candidate Respondents offered into evidence, without objection, a registration document showing the registration of an enrolled Republican named Paul V. Llobell at 89 River Road, Great River, with a birth date of January 30, 1956. (Ct. Ex. 41).

Counsel for the Respondent candidates urges that the signature on the Trotto/Alden Designating Petition is actually that of the Paul V. Llobell who resides at 89 River Road, notwithstanding that the address stated by the signer on the Trotto/Alden Designating Petition is 90 River Road. Counsel asserts that the signature appearing on the Trotto/Alden Petition is "identical" to the signature of the Paul V. Llobell who is registered at 89 River Road. The Court, having closely examined and compared the signatures, cannot conclude that the signatures are similar, much less, identical. Additionally, counsel for the Respondent candidates did not produce either Llobell as a witness and did not request an adjournment for that purpose. Furthermore, the Court has observed that "Paul V. Llobell Jr", of 89 River Road, acted as the subscribing witness on the sheet of the Henry petition on which the signature of Paul Lubell of 90 River Road appears. This cuts both ways: the signature on the subscribing witness form is somewhat similar to the signature on the Trotto/Alden Designating Petition but, on the other hand, that Paul Llobell gave his address as 89 River Road. Nevertheless, the Court cannot conclude from an examination of the signatures alone which Paul Llobell signed the Henry and Trotto/Alden Designating Petitions. This is because the signature on the registration form for the Paul Llobell at 90 River Road is a neat cursive signature in which both the Paul and the Llobell are clearly discernible. The signatures on the subscribing witness statement on the Henry petition, the signature on the Henry petition, and the signature on the Trotto/Alden Designating Petition appear to be "Paul" are not neat and discernible.

In order to accept the argument of counsel for the Respondent candidates that the Paul Llobell who signed their petition is a different Paul Llobell from the person who signed the Henry petition, the Court would have to conclude that the address given by the Respondent candidates' Paul Llobell was erroneous. Section 6-130 of the Election Law requires that signers of designating petitions state their residence address. The failure to state a correct residence address has been held to be a fatal defect warranting the invalidation of the signature. Matter of Stoppenbach v. Sweeney, 98 NY2d 431 (2002); Matter of Liepshutz v. Palmateer, 65 NY2d 965 (1985); Matter of Gleason v. Longo, 133 AD2d 289 (3d Dept. 1987). While the Court is aware that there some cases in which the failure of the address given by the signer to match the address on file with the Board of Elections has not been regarded as fatal, see Matter of Bray v. Marsolais, 21 AD3d 1143 (3d Dept. 2005); Matter of Robelotto v. Burch, 242 AD2d 397 (3d Dept. 1997), those cases did not present the confusion that is present here. The Court cannot conclude, on the basis of its own evaluation of the signatures, unaided by either testimony of the signers or by expert testimony, that the Paul Llobell who signed the Trotto/Alden Designating Petition stated his residence [*22]incorrectly. This conclusion is buttressed by the evidence, in the form of the subscribing witness statement on the Henry petition, that the Paul Llubell of 89 River Road, correctly stated his residence, as well as his identity as "Jr.", in order to clearly differentiate himself from the Paul Llubell of 90 River Road. In addition, the Court observes that this clear differentiation was made in a subscribing witness statement dated July 4, 2008, substantially after the June 30, 2008 signature on the Trotto/Alden Designating Petition.

Accordingly, the objection to the signature appearing at Page 21 line 9 of the Trotto/Alden Designating Petition should be sustained.

On Sheet 3, line 5, of the Trotto/Alden Designating Petition appears the signature of Thomas Inman, of 19 Musket Drive, Holbrook, dated July 9, 2008; the same signature, same address, appears on the Henry petition at Sheet 376, line 6, dated July 6, 2008. Similarly, on Sheet 3, line 6 of the Trotto/Alden Designating Petition appears the signature of Jean Inman of 19 Musket Drive, Holbrook, New York, dated July 9, 2008; the same signature, same address, appears on the Henry petition at Sheet 376, line 5, dated July 6, 2008. Since the signatures of the Inmans on the Henry petition are prior in time to their signatures on the Trotto/Alden Designating Petition, the objections to these two signatures are sustained.

5.Printed Names, Not Signed

A considerable number of objections to signatures were asserted on the ground that the printed names of the voters appeared, rather than their signatures. Because of the significance of this issue, the Court will discuss it separately, utilizing an illustrative situation, and then apply the same standard in its line-by-line review of signatures contested on this ground.

Analysis must begin with Section 6-134 of the Election Law. Subdivision 7 of the statute makes it clear that the voter must sign his or her name; indeed, that this the only item that must be done by the voter himself or herself. Subdivision 5 states:

Taken together, the statute requires that the voter sign his or her name, though he or she may use titles, initials, or customary abbreviations of first names in doing so. While printed names may be added, that is optional.

The question is then what constitutes a signature. It is common knowledge that, while many people sign their names in cursive script, others use printing, and still others use a combination of printing and cursive script. Although our society is generally literate, there may still persons who sign their name through the use of a mark or symbol. All of these, and more, are permissible as signatures, as a signature can be any "memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise" as long as it is placed upon a writing or on an instrument with the intention of executing or authenticating the writing or instrument. General Construction Law, §46.

It is obviously important, in order to prevent fraud, that election officials, and other interested persons, have the ability to check or verify the signature of voters. To this end, the Election Law requires that, in order to register to vote, a person must sign a registration form on a line clearly labeled "signature of applicant" and must swear or affirm: "This is my signature or mark on the line below". Election Law, §5-210 (subd.5 [k][xi]).

Section 6-134, as part of the statutory scheme, provides that, for purposes of designating petitions, whether a signature on a designating petition is that of a particular voter is to be ascertained by "reference to the signature on the petition and that of a person whose name appears in the registration poll ledgers".

It has long been the law that a printed signature on a designating petition is valid only if the voter's signature is similarly printed on the official registration books. Matter of Hall v. Heffernan, 185 Misc. 742, 744 (Sup. Ct. Richmond County 1945), affirmed, 269 App. Div. 953 (2d Dept. 1945), affirmed, 295 NY 599 (1945). The reason for this rule is self-evident: it would be much easier for a person seeking to commit fraud to print a voter's signature than it would be to execute a cursive signature, especially if the malefactor did not have access to the voter's registration signature. Conversely, it would be very difficult, if not impossible, to prove fraud if all the signatures on a petition were printed. Thus, the law sensibly permits those who print their names on a registration card to print their names in similar fashion on a petition but it does not permit a person who signs his or her name in a cursive fashion to use a printed name on a petition. [*24]

Counsel for Respondent candidates reads Cotroneo v. Monroe County Board of Elections, 166 Misc 2d 63 (Sup. Ct. Monroe County) as sustaining the validity of printed signatures even if cursive writing was used on the registration form. The language used in Cotroneo makes such a reading reasonable. The Cotroneo Court held that because General Construction Law, Section 46, makes any mark affixed with intent to execute a document, a signature, and does not make an exception for Election Law matters, a printed signature on a petition is per se acceptable, even if it does not correspond to the signature on the registration form.

First, and foremost, the Cotroneo Court did not cite, much less follow, the decision of in Matter of Hall v. Heffernan, supra , which was affirmed by both the Appellate Division, Second Department, and the New York Court of Appeals. Although the Court of Appeals did not issue an opinion, the fact remains that its affirmance means that it concurred in the result reached, though not necessarily with the rationale expressed. See, e.g., Tepper v. Tannenbaum, 65 AD2d 359, 360 (1st Dept. 1978). Since the result was that printed signatures did not count because they did not correspond with the signatures on the registration records, this Court perceives that Matter of Hall v. Heffernan should be followed, unless and until either the Appellate Division, Second Department, or the Court of Appeals, decides differently. In this regard, the Court notes that the General Construction Law provision was in existence at the time of the Hall v. Heffernan decision, though the statute was amended somewhat thereafter.

Second, Matter of Hall v. Heffernan, supra , was applied in Matter of Rabadi v. Galan, 307 AD2d 1014 (2d Dept. 2003), where the Appellate Division, Second Department invalidated two signatures on a designating petition precisely because the signatures did not match the signatures on the registration records. This Court is obligated to follow the precedents of the Appellate Division, Second Department.

Third, this Court disagrees with Cotroneo in that this Court perceives that Section 6-314 of the Election Law manifests the Legislature's decision to override the General Construction Law insofar as it relates to the use of printed signatures on a designating petition. The statute, by directing a comparison between the signature as set forth on a petition and the signature of the voter as set forth on the registration record, while otherwise insisting upon an actual signature, manifestly adopts the rule of Matter of Hall v. Heffernan and makes an exception to the general application of the General Construction Law provision.

Fourth, the Court views so much of the Cotroneo decision as seems to accept printed signatures in all circumstances as being dicta, not necessary to the decision. The petitioners in that case sought to authenticate the signatures by affidavit [*25]from the signatories themselves and, as so authenticated, the signatures should qualify, in any event.

As elaborated upon elsewhere in this Decision and Order, the law now permits undated, uninitialed alterations to subscribing witness statements and to petition signatures to be explained, either by affidavit or by testimony at a hearing. There is no reason to deny the validity of a printed signature where the signer himself or herself confirms that, in fact, the signature was made by him or her, though the signature on the petition differs from what appears on the Board of Elections records. People do not always sign their names in the same precise fashion, signatures may change over time, and people sometimes sign petitions under circumstances, such as where there is no convenient place to place the petition while it is being signed, which make it difficult to write on the document. Where the signer personally vouches for the signature, there is generally little reason to be concerned with possible fraud. Indeed, in Matter of Jaffee v. Kelly, 32 AD3d 485 (2d Dept. 2006), leave to appeal denied, 7 NY3d 707 (2006), the Court held that signatures were improperly invalidated where the candidate produced affidavits from the voters in question in which they attested that the signatures were theirs. The Court observed that the challengers did not dispute the veracity of the affiants and did not raise any claim of fraud or forgery. Likewise, since the law permits subscribing witnesses to vouch for signatures, that is indeed their very purpose, the Court sees no reason why printed signatures cannot be authenticated by credible testimony offered by a subscribing witness to the signatures in question.

Further, the Court is also reluctant to permit a debate over penmanship. It is one thing if the signature is printed; it is another if the signature is at least somewhat cursive.

Turning to the facts presented herein, the Court, during the hearing at the Board of Elections, preliminarily sustained objections to Sheet 6, lines 10, 11, 12, and 15, because the printed names thereon of C.K. Mendez, Silvana Loiacono, Joseph Loiacono, and C. Noto did not match the cursive signatures of such voters as reflected in the registration records. (Ct. Ex. 40). The next day, the Respondent candidate called Daniel DeLuca, the subscribing witness to Sheet 6, to testify. DeLuca is an attorney and testified that he observed that he saw the voters sign their names. He testified that he is a neighbor of the Notos and that Mr. Mendez was eating when he was interrupted and asked for a petition signature and DeLuca accepted the signature as the best he could obtain under the circumstances. The Court accepts the testimony of DeLuca as subscribing witness that he personally observed these four voters sign their names in the fashion that they did. Petitioners have not offered any reason to question his veracity nor have they raised any claim of fraud. Accordingly, the objections to these four signatures are overruled and these signatures are found to be valid.

The Court now undertakes a line-by-line review of the remaining Specifications of Objections, other than those withdrawn by Petitioners during the proceedings held at the office of the Board of Elections on Wednesday, August 6, 2008.

1.Sheet 2, line 4

The objection to Peter Donohue, asserted on the ground that the signer was not an enrolled Republican, was overruled during the line-by-line review and the Court sees no valid reason for changing that determination.

2.Sheet 2, line 13

The signature appears on Sheet 2, line 13, was objected to on the ground that there was an alteration of the date of the signature. This objection was sustained during the line-by-line review at the Board of Elections.

An alteration consists of a visible change, erasure, or cross out of information filled in on a designating petition by a signer. Matter of Bernstein v. Nelson, 124 Misc 2d 287, 289 (Sup. Ct. Rockland County 1984), affirmed, 104 AD2d 462 (2d Dept. 1984), appeal dismissed, 64 NY2d 647 (1984). Alterations invalidate a signature, as to the signature or its date, where the alteration is not initialed (and dated) or explained by either the signer or the subscribing witnesses and the alteration is material. See, e.g. Matter of Jonas v. Velez, 65 NY2d 954, 955 (1985); Matter of White v. McNab, 40 NY 912, 913 (1976); Matter of Nobles v. Grant, 57 AD2d 600 (2d Dept. 1977), affirmed on App. Div. mem., 41 NY2d 1048 (1977); Matter of Gardner v. Salerno, 74 AD2d 958 (3d Dept. 1980). As to an alteration of date, the alteration is not considered material where there there is no inconsistency in the overwriting and no evidence as to significant differences of times or circumstances of the writings, as in such circumstances there is no inference of impropriety or fraud. Matter of McShane v. Coveney, 37 NY2d 789, 791 (1975) ("June" written over "6" in month portion of date) ; Matter of Schroeder v. Smith, 21 AD2d 511 (2d Dept. 2005). Nor is it material where the overwriting does not change what had been written in the first place. Matter of Schroeder v. Smith, supra .

Here, there has clearly been an alteration in that the date of signing was changed, with what was originally written being overwritten with something different. While the month "6" is the same, it appears to the Court that the date of the signature [*27]was changed either from "25" to "29" or vice versa, as either reading is plausible; it is also plausible that what was written over was "23". The Court also notes that the signature above is dated 6/25 (line 12) and the signature below is dated 6/29 (line 14). The Court also observes that the signer on line 12 resides at 168 Anchorage Drive, as does the signer on line 14, with the signer on line 13 being resident at 171 Anchorage. The Court also observes that the subscribing witness, who herself lives on Anchorage Drive, obtained two signatures from persons at 171 Anchorage Drive on June 23.

While it possible that the change in date on Line 13 was innocent and readily explainable, the Respondent candidates did not submit an affidavit from the subscribing witness nor offer testimony from the subscribing witness. Likewise, no affidavit or testimony was offered by the signer. Because the undated, uninitialed and unexplained alteration has the effect of rendering it impossible, at least to these eyes, of ascertaining what the date of signing was, the Court sustains the objection to this signature.

3.Sheet 14, Line 8

At Sheet 14, line 8, there appears a signature of a voter with an address at 375 Albert Street, Holbrook. This was objected to on the grounds that the voter was not registered/not registered at the address given and not enrolled in the Republican Party. The Court sustained the objection during the line-by-line review at the Board; this signature was not the subject of testimony and the Court sees no reason to change its ruling. According, this signature is invalid.

4.Sheet 15, Line 19

Sheet 15, Line 19, contains a printed signature from Robert W. Karszen, of West Sayville. The registration records for this voter reflect a cursive signature. (Ct. Ex. 40). While the Court had previously reserved decision on the objection to this signature, no validating testimony was proffered from either the voter or the subscribing witness. Accordingly, for the reasons previously stated, the objection is now sustained and the signature found invalid.

5.Sheet 24, Line 6

Sheet 24, Line 6, reflects the initials of "JCM. III", with an address of 6 Ferraro Drive, Holbrook. The registration records reflect the registration of an enrolled Republican, Joseph C. Miller, at 6 Ferraro Drive, Holbrook, who signed his name in cursive as "Joseph C. Miller". (Ct. Ex. 12). The Court notes that, immediately above the disputed signature, on Line 5, there appears a signature that also appears to be that of a person named "Miller" at the same address. Indeed, the registration records reflect the registration of an enrolled Republican named Joseph C. Miller, Jr., who signature on the registration record (Ct. Ex. 13) appears, to the Court, to match the signature on Line 5, though the "Jr." is not used on either the registration record or on [*28]the petition signature. The Court reserved decision on the objection.

No testimony was forthcoming as to the signature from either of the two registered Joseph C. Millers or from the subscribing witness. While it may be an educated guess, based on the birth dates of the two Millers (the Junior having been born in 1960 and the other having been born in 1982) that "JCM III" is the son of Miller, Junior, the statute does not seem to permit the Court to engage in such speculation. Because the identity of the voter cannot be established by simply comparing the "JCM III" on the Designating Petition to the "Joseph C. Miller" who signed his name that way on the registration records, the signature is invalidated. See Matter of Fusco v. Miele, 275 AD2d 426 (2d Dept. 2000) (signatures consisting only of first name of signers held invalid, even though such signatures were accompanied by the full name of the signers printed next to the signatures).

6.Sheet 25, Line 2

Sheet 25, Line 2, bears the printed name of Anthony Mirando. The registration records reflect a cursive signature. (Ct. Ex. 40). The Court sustained the objection and adheres to that ruling now. The signature should not be counted.

7.Sheet 25, Subscribing Witness

Petitioners objected to the subscribing witness statement on the ground that the statement of the number of signatures had been altered without having been initialed. The Court overruled that objection and adheres to that ruling. The number "19" was simply overwritten, without changing what had been there in the first place "19". Thus, this was not an alteration within the legal definition of that term. While the Sheet contained 20 signatures, the Board of Elections reduced the number of signatures to 19. (However, the Court, as noted above, has reduced that number by one, by rejecting the signature on Line 2).

8.Sheet 26, Lines 7,8,9

The voters on Sheet 26, Lines 7,8,9, used cursive signatures but used only the first letter of the first names, rather than the full first names set forth on the signatures on the voting registration records. However, their last names were full set forth. Because the identity of the voters on lines 7 and 8 can be readily established by comparing the petition signatures with the signatures on the registration records, the use of initials, in lieu of a full given name, does not invalidate those signatures. Accordingly, the Court adheres to its preliminary ruling denying the objections to these signatures. However, the situation is different with respect to the signature on Line 9, where "V. Maccone" appears, with an address of 209 Spiral Road, Holtsville. It is established that there are actually two Vincent Maccones registered at such address; one born in 1942 (Ct. Ex. 16) and one born in 1976 (Ct. Ex. 17). The signatures of these two on the registration records are similar and the Court, despite close [*29]examination, cannot ascertain whether the "V. Maccone" who signed the petition is one or the other of the registered Republicans. Neither of the voters nor the subscribing witness testified. Accordingly, the Court sustains the objection to Line 9.

9.Sheet 27, Lines 1, 4

The signatures on Sheet 27, Lines 1 and 4, reflect cursive signatures. With respect to Line 1, the first initial of the voter's first name appears, together with the voter's last name. Accordingly, the Court adheres to its preliminary ruling rejecting the objections to this signature.

The situation is closer with respect to Line 4. There what appears to the Court is the cursive initials "RJ", though there is writing after the "J" that is at least arguably reflective of an intent to express a last name. The records of the Board of Elections show the registration of Raymond O. Johnson who signed his name using first name, middle initial and last name on the registration records. (Ct. Ex. 21). No testimony was offered as to this signature. Since it appears to the Court that the writing is reasonably capable of being construed as "Johnson" and there is a duly enrolled Republican whose first name begins with R and whose last name is Johnson, the Court adheres to its preliminary ruling rejecting objections to this signature.

10.Sheet 29, Line 2

This witness, Anthony Desimone, listed his address as 659 Bellmore Avenue, Islip Terrace, while the registration records reflect his address as being 652 Bellmore Avenue. The Court rejects Petitioners' objection, finding that this error is inconsequential and that any person seeking to verify Desimone's qualifications could readily find him.

11.Sheet 34, Line 5

The Court had preliminarily sustained the objection to the printed name of Frank Edwards, appearing on Sheet 34, Line 5, as the printing did not correspond to the cursively signed name on the registration records. (See Ct. Ex. 23). At the hearing at the Central Islip Courthouse, the Respondent candidates produced testimony from the subscribing witness, Phillip J. Charron. Charron testified that he lives at 325 Kimberly Place in West Islip; Frank Edwards lives at 344 Kimberly Place. Charron testified further that he has known Frank Edwards for 20 years and that Edwards told him that this was the way that he signed everything. The Court credits the testimony of Charron that he saw Edwards print his name and that, when questioned by Charron, Edwards verified that was the way he signs his name. Accordingly, the Court now overrules this objection.

12.Sheet 37, Lines 6, 7 [*30]

The signatures on Sheet 37, Lines 6 and 7, are printed and, in lieu of the full first name, only a first initial is used, while the full first and last names are signed in cursive on the registration documents. (Ct. Ex. 40). The Court preliminary sustained objections to these signatures. No authenticating testimony was offered with respect to these signatures. Accordingly, the Court adheres to its preliminary ruling and holds that these signatures should not be counted.

13.Sheet 37, Line 13

The signature on Sheet 37, Line 13 is indecipherable. The registration records reflect two registered voters, enrolled Republicans, at the address in question, 8 Harley Court, Holbrook. One is a female named Beata Bukowski; the other is a male Peter Bukowski. (Ct. Ex. 27, 28). The signature appearing on the petition does not come close to matching the signature on the registration forms of either Bukowski. Nevertheless, no witnesses were called with respect to this signature and no handwriting experts were called. Since the Court discern the identity of the voter based on the signature on the designating petition in relation to the registration records, the objection to the signature should be sustained.

14.Sheet 37, Line 15

Petitioners objected to this signature, contending that the date set forth adjacent to it was July 16, and the subscribing witness statement is dated July 10. The Court, however, reads the date as being July 10, the same date as the subscribing witness statement and the same date as the signatures on Lines 1 through 14 and Lines 16 and 17. Accordingly, the Court adheres to its preliminary ruling denying this objection.

15.Sheet 38, Lines 13, 14

The signatures on Sheet 38, Lines 13 and 14, are printed, while the registration forms of the voters were signed in cursive. (Ct. Ex. 40). The Court preliminarily sustained objections to these signatures. No authenticating testimony was offered with respect to these signatures. Accordingly, the Court adheres to its preliminary ruling and holds that these signatures should not be counted.

16.Sheet 42, Line 4

The Court had preliminarily sustained Petitioners' objection to the signature at Sheet 42, Line 4, because it was printed, in contrast to the cursive signature on file with the Board of Elections (Ct. Ex. 40). The Respondent candidates called the subscribing witness, Anne M. Danziger, to authenticate the signature. She lives at 8 Westminister Drive in Bohemia, while the signer, Mark Galletta, resides at 2 Westminister Drive. She testified that she saw Galletta sign the document. The Court credits this testimony and overrules the objection to the signature.

[*31]17.Sheet 44, Lines 6, 18

Petitioners objected to the signature on Sheet 44, Line 7, on the ground that no first name was stated. The Court preliminary overruled the objection as a first initial was stated and now adheres to that determination because the last name was given on the petition and the voter is identifiable by reference to the registration records.

The signature on Line 18, however, appears to consist of just a last name, Gerena, a voter residing at 19 Skylark Drive, Holtsville. No first name or initial is discernible. The Board of Elections reflect four Gerenas registered at the address stated: Gilbert (a Republican), Jo Ann (a Republican), Michael (not registered in any party), and James (whose party affiliation, if any, is not indicated on the record admitted into evidence). (Ct. Exs. 29, 30, 31, 32). The signatures of the three male Gerenas are similar and the Court cannot ascertain by reference to the registration records the identity of the petition signer. None of them testified. Neither did the subscribing witness. Accordingly, the Court adheres to its preliminary determination to invalidate the signature.

18.Sheet 49, Line 2

On Sheet 49, Line 2, appears the printed name of Lauren Schroff of 28 Glide Lane, Holtsville. The Board registration documents reflected the registration of Lauren Shongood at the stated address, with a cursive signature. (Ct. Ex. 33). The Board's also reflect the registration of Jonathan Schroff at 46 Laurleton Avenue, Lake Grove. (Ct. Ex. 34). The Court had preliminarily overruled the objection to this signature, perceiving that the printing on the Schroff registration appeared to be the same as the printing on Sheet 49, Line 2. However, on reflection, the Court determines that it should sustain the objection, as the identity of the voter cannot be ascertained by comparing the information on the designating petition to the registration records.

19.Sheet 53, Line 3

Petitioners objected to this signature on the ground that there had been an uninitialed alteration of the date of the signature. The Court disagrees. The mark that appears in the date column (and extends into the Name of Signer column) is part of the signature of the voter on Line 2 and the voter on Line 3 simply wrote over the excessive mark of the Line 2 voter which extended down into Line 3. Moreover, to the extent that the date appears in darker ink than elsewhere on the page, the same dark ink is used elsewhere on Line 2. Further, to the extent that there was an overwriting in the date column, no change was made from what was first written. The date is clearly 6/6 and that is consistent with the sequential dating of the other signatures on the Sheet. Accordingly, the Court adheres to its preliminary ruling to overrule the objection.

20.Sheet 54, Line 16 [*32]

The Court had preliminarily sustained Petitioners' objection to the signature at Sheet 54, Line 16, because it was printed, in contrast to the cursive signature on file with the Board of Elections (Ct. Ex. 35). Neither the signer nor the subscribing witness was called to authenticate the signature. Thus, the Court adheres to its preliminary ruling and invalidates the signature.

21.Sheet 62, Lines 1, 4

Petitioners objected to the signature of Mary Walsh (Sheet 62, Line 1) as being printed. However, the signature is somewhat cursive and sufficiently close to the signature on the Board's records (Ct. Ex. 40) as to preclude a determination that this signature should be invalidated, particularly where the subscribing witness was John F. Walsh of the same address as the voter and the signature on the next line (Line 2) was also named Walsh and was from the same address.

The Court also adheres to its preliminary ruling to overrule the objection to the signature appearing at Sheet 62, Line 4.

22.Sheet 66, Lines 10, 16

The Court adheres to its preliminary ruling to overrule the objections to the signatures appearing on Sheet 66, Lines 10 and 16.

23.Sheet 67, Line 7

At Sheet 67, Line 7, appears the printed name of A. Riccio, a voter at 29 Bayview Avenue, Islip. The corresponding signature on the Board of Elections records is the cursive signature of Alfred P. Riccio. The Court preliminarily sustained the objection to this signature. Counsel for the Respondent candidates subsequently elicited testimony from the subscribing witness, Frank V. Smith, in an attempt to authenticate the signature. However, the subscribing witness, while testifying that he saw the voter print the signature, was unable to recall whether the person was a man or a woman. Because the subscribing witness was unable to testify to the circumstances of the signature with any clarity, the Court does not find the testimony to be credible, and even if credible, sufficient to sustain the validity of the signature.

The Court is sensitive to the fact that it would be relatively easy for a subscribing witness to commit fraud by simply printing a voter's signature and claiming in court that he or she saw the voter print the signature. Thus, in this Court's view, in order for a subscribing witness to authenticate a printed signature of a voter, the subscribing witness should be able to recount enough of the circumstances of the signature to give the Court a degree of confidence that the printed signature is the bona fide writing of the voter. While the Court does not believe that Smith committed, or [*33]intended to commit any fraudulent or improper practice, it does conclude that, because Smith could not recall the event in question with any degree of reliability, his testimony does not rehabilitate the printed signature and, therefore, the Court adheres to its preliminary decision to sustain the objection to the signature.

24.Sheet 68, Lines 4,7, 14

These signatures on the Trotto/Alden Designating Petition are cursive and the Court adheres to its preliminary ruling to overrule the objections to these signatures.

25.Sheet 69, Line 3

Sheet 69, Line 3 contains the printed signature of Carol Franklin, while the Board of Elections reflect a cursive signature. (Ct. Ex. 40). The Court preliminarily sustained the objection to the signature. The subscribing witness was Frank V. Smith. However, Smith did not address the Franklin signature in his testimony and, in any event, the Court, for the reasons stated above, does not view the Smith testimony as sufficient to sustain the signature. Accordingly, the Court adheres to its determination to sustain the objection to this signature.

26.Sheet 85, Line 9

This signature on the Trotto/Alden Designating Petition is cursive, albeit with only a first initial, rather than a full first name. However, the Court cannot relate the signature on the petition to a registered voter. (See Ct. Ex. 40). The first initial on the petition is "M" and the two voter signatures on file have first names starting in either "R" or "F". Accordingly, this signature should be invalidated.

27.Sheet 86, Line 7

The Court adheres to its preliminary ruling to overrule the objection to the signature appearing on Sheet 86, Line 7.

28.Sheet 92, Subscribing Witness Statement

The alteration to the date of the subscribing witness statement was initialed by the subscribing witness, Thomas Cornell. The handwriting appearing above the signed name of the subscribing witness in the name of witness line of the witness statement is simply a printed version of the name. This addition, by way of clarification is not viewed by the Court as being a material alteration and, even if it were it would be viewed as inconsequential as the signature is the same as the signature appearing in the line for signature of witness. The Court adheres to its preliminary ruling to overrule the objection to the Subscribing Witness Statement on Sheet 92.

29.Sheet 97, Line 3 [*34]

The signature appearing at Sheet 93, Line 3, is indecipherable. The residence address is also mostly indecipherable, the only legible part being "41 Bara... L... 11794." The records of the Board of Elections show a registered Republican at 41 Bartley Lane, West Sayville, 11796-1518 named Lisa Cammarata. The signature of Cammarata on the registration record is a net, easily read, cursive signature. Although the Court had preliminarily overruled the objection to the signature, the Court now reconsiders that ruling. Because the name of the street as set forth on the petition is mostly unreadable and the zip code is stated as being 11794, the Court cannot identify the voter by comparing the information on Line 3 to the registration record (Ct. Ex. 36) as being Lisa Cammarata, whose address is within a different zip code. While, during the hearing, the Court had expressed the view that a zip code error made by the signer would not be a invalidating event, the Court, on reflection, perceives this situation as involving more than a zip code error. Because of the zip code discrepancy, the inability to identify the street name written on the petition, and because of the clear and obvious dissimilarity in signatures, the Court concludes the objection should be sustained.

30.Sheet 114, Line 7

During the hearing at the Board of Elections, the Court had preliminarily sustained the objection to the printed signature of William Aufrecht appearing on Sheet 114, Line 7. However, Mr. Aufrecht testified at the Central Islip Courthouse and stated that he had, in fact, signed the Trotto/Alden Designating Petition on Sheet 114, Line 7. Accordingly, the Court now overrules the objection to this signature.

31.Sheet 118, Line 7

Petitioners objected to the signature of Carson R. Davis (Sheet 118, Line 7). However, the signature is cursive and, while it appears to be different from the signature appearing on the registration records (Ct. Ex. 37), in the absence of any testimony from the signer or subscribing witness or handwriting expert, the Court cannot conclude that the signature should be invalidated. Accordingly, the Court adheres to its preliminary ruling to overrule the objection to this signature.

32.Sheet 128, Line 6

This signature was objected to on the ground that the signer was not an enrolled Republican. At the hearing at the Board of Elections, counsel agreed to defer consideration of this objection pending receipt of records from the Board that were to be sent to the Central Islip Courthouse the next day. However, no such records were ever offered. Accordingly, since Petitioners have failed to provide a basis for invalidating this signature, the objection to it is overruled.

33.Sheet 132, Line 3

This signature on the Trotto/Alden Designating Petition is cursive, albeit [*35]with no first name and, in lieu of the first name, what appears to be "Mr Mrs" preceding the last name, "Falkenmayer". Accordingly, the identity of the voter is not ascertainable by resort to the records of the Board of Elections. As no authenticating testimony was offered, the Court now changes its preliminary ruling and sustains the objection to this signature.

34.Sheet 137, Lines 9, 10,11

Sheet 137, Line 9 contains a printed signature from Joan Nestle and Line 10 contains a printed signature from Andrea Kye. The Court had preliminarily sustained the objections to these signatures.

Counsel for the Respondent candidates called Ms. Nestle to testify and she averred that she had printed her name, at least partially, because she came to the door without her glasses. The Court accepts this testimony and overrules the objection to the Nestle signature.

The subscribing witness for Sheet 137 was Frank V. Smith and the candidate Respondents sought to rehabilitate the Kye signature through Smith's testimony. However, for the reasons previously discussed, the Court views Smith's testimony as being unconvincing and not credible. The Court also observes that Sheet 137 contains a number of printed signatures and, while the Court is willing to accept Ms. Nestle's testimony, it cannot assume that all of the signers would likewise confirm their signatures, particularly since the addresses indicate that the signatures were obtained in a variety of locations, including West Islip, Oak Beach, and Bay Shore and between those places intermittently. Moreover, the Court also notes that all of the signatures on Sheet 137 are dated July 10, 2008, which was the last day for filing petitions and, thus, necessarily the last day to obtain signatures. Accordingly, the Court sustains the objection to the Kye signature on Sheet 137, Line 10.

That said, the Court is constrained to adhere to its preliminary ruling to overrule the objection to the signature of Elizabeth Edwards on Sheet 137, Line 11. This signature is partly cursive and the Court cannot, in the absence of testimony, determine that the signature is not that of Elizabeth Edwards (see Ct. Ex. 40). Accordingly, the objection to the signature at Line 11 is overruled.

35.Sheet 139, Lines 5, 7

The Court had preliminarily sustained the objections to the signatures of Stamatios Grammenos and Nick Grammenos at Sheet 139, Lines 5 and 7. (See Ct. Ex. 38, 39) However, both men testified that the signatures on those lines were theirs. The Court credits the testimony. Accordingly, the Court now overrules the objections to these signatures.

36.Sheet 142, Line 7 [*36]

Sheet 142, Line 7 contains a signature from what appears to the Court to be "RJ DePaola" of 60 Jaycox Ave Islip". The signature is predominately printed, though the "RJ" and the "DeP may be considered cursive. The registration records reflect an entirely cursive signature of "Ralph J DePaola 3rd". (Ct. Ex. 40). The subscribing witness, Bruce M. Kelly, attempted to authenticate this signature. However, the testimony was not sufficient on this point Nevertheless, in looking at the signature, the use of the first and middle initials and the last name (albeit without the 3rd) is sufficient to connect the voter to the person on the registration records. Accordingly, the Court the Court overrules the objection.

37.Sheet 142, Line 10

This line contains the printed name of Kim Napolitino. While the Court preliminarily sustained the objection to this signature, Napolitino testified and identified the writing as hers. Accordingly, the Court now overrules the objection to this signature.

38.Sheet 145, Line 4

The signature appearing on Sheet 145, Line 4 was objected to on the ground that the signer was not an enrolled Republican. The Court preliminarily overruled this objection and the Court now adheres to that determination.

39.Sheet 145, Line 9

Sheet 145, Line 9 contains a printed signature of Diane Ryan-Reed. The Court had preliminarily sustained the objection to this signature. However, Ms. Ryan-Reed testified in court that she had placed the writing on the line, stating that is how she signs her name. While her registration records reflect a cursive signature (Ct. Ex. 40), the Court nevertheless credits Ms. Ryan-Reed's testimony and overrules the objection to the signature.

40.Sheet 147, Line 1

The printed name of Jane M. Arnott appears on Sheet 147, Line 1. The registration records (Ct. Ex. 40) reflect a cursive signature. The subscribing witness, Thomas Cilmi, testified that he is a neighbor of Ms. Arnott's and that he has known her for some 10 years. The Court notes that Cilmi resides at 14 Boyd Avenue, Bayshore, and Arnott resides at 15 Boyd Avenue. Under the circumstances, the Court credits Cilmi's testimony and overrules the objection to the signature.

41.Sheet 151, Line 13

Petitioners objected to the signature of Nina Conroy on the ground that there was a change to the date of the signature that was not initialed or dated. While the Court had preliminarily overruled the objection, the Court, on closer examination, [*37]perceives that there was a change to the date in that the number 10 (as in 7/10) was written over what had been previously written there. This change takes on added significance because July 10 was, as previously noted, the last day to obtain signatures. While all the signatures above and below Line 10 have a clearly written date of 7/10, the fact remains that there was a clear alteration of the date on Line 10. As it happened, the subscribing witness on this Sheet was Anne Marie Danziger, who testified as to a signature on Sheet 42. The witness was not asked about the change on Sheet 151, Line 13. Accordingly, the Court will sustain the objection to the signature on Sheet 151, Line 13,

On July 28, 2008, after the expiration of the applicable statute of limitations period but prior to the return date, Petitioners served, by mail, upon both the Respondent candidates and their counsel and upon the Board of Elections, a document entitled Notice of Supplemental Objections and Adoption of Objections. The Notice states that candidate Henry adopts all of the specific objections previously interposed by Shaw and Hulse and gave notice that the Petitioners intended to present to the Court on the return date the additional specific objections annexed. Annexed to the Notice are some 11 pages of additional specific objections. The Board of Elections, though it received this document, did not address any of the additional objections interposed therein.

The Respondent candidates argue that the Court lacks jurisdiction to consider the supplemental objections because they were served after the expiration of the statute of limitations and because the supplemental objections were not verified.

As previously discussed, the Court may consider objections not raised at the Board of Elections, provided that the candidate whose petition is being challenged receives sufficient notice ahead of time of what the additional challenges are. Edelstein v. Suffolk County Board of Elections, 33 AD3d 945 (2d Dept. 2006). Here, the Respondent candidates were afforded notice prior to the return date of the additional specific objections that Petitioners intended to raise. Further, this notice was given, not only before the return date, but more than one week prior to the commencement of the hearing at the Board of Elections.

The Court does not believe that it was necessary for the Notice to be verified as the Notice was not a petition or an amendment to a petition. Accordingly, the lack of verification is not an impediment to the consideration of the supplemental objections.

Moreover, while the Court had repeatedly stated during the proceedings that it would deal with consideration of supplemental objections only after it had completed the review of the original Specifications of Objection, during the hearing at [*38]Central Islip, two events of moment transpired. Petitioners represented that they would discontinue their effort to have all of the supplemental objections presented, except for one supplemental objection. That supplemental objection was to the subscribing witness statement on Sheet 82. Respondent candidates called as their witness the person who acted as the subscribing witness to Sheet 82 who, for all practical purposes, would be the only person who had knowledge of the claimed defect. Thus, under the circumstances, since the Respondent candidates had the opportunity to address the objection on the merits, it is evident that the Respondent candidates would not be prejudiced, or be deprived of fundamental due process, by consideration of this one supplemental objection on its merits.

Accordingly, the Court will consider the objection to the subscribing witness statement on Sheet 82 on its merits but will not consider any of the other supplemental objections.

Petitioners argue that the Statement of Witness on Sheet 82 left blank the number of signatures collected on that page. The subscribing witness, Joseph A. Stassi, was called to testify by the Respondent candidates and he testified that he completed the Statement of Witness and, in particular, inserted the number of signatures, which he believed was 13.

The Court has carefully reviewed the Statement of Witness on Sheet 82. While, at first blush, it does appear that the space for inserting the number of signature is blank, on closer examination, the Court discerns that the number 13 was inserted. The difficulty presented is that the "g" in Hauppauge, inserted in the space for the subscribing witness address on the line immediately above, extends down into the space for number of signatures. This is compounded by the fact that the "S" in Stassi, as signed by Stassi in the space for signature of subscribing witness in the line immediately underneath, also extends up into the space for number of signatures. For these reasons, what, at first blush, seems to be a "g" immediately after the two "p"s in Hauppauge, is, in fact, the combination of the "a", which follows the two "p"s in Hauppague, and the "1" from the number of signatures line. Similarly, the "3" in the number of signatures line is partially obscured by the "g" in Hauppauge from the line above. Nevertheless, the Court can see the "13" in the number of signatures line, a number which is, in fact, correct. In reaching this conclusion, the Court also observes that Stassi himself lives in Hauppauge and there is no reason to believe that he would spell Hauppauge as "Hauppguge", as would be necessarily to order to sustain the argument made by Petitioners.

Accordingly, the Court overrules the supplemental objection to Sheet 82 on its merits.

During the course of the proceeding, counsel for the Respondent candidates expressed an intention to request judicial review of at least some of the 152 objections sustained by the Board of Elections. The Court stated that it would deal with this issue after completion of the review of the objections raised by Petitioners that were not sustained by the Board. At the end of the proceeding, counsel for Respondent candidates never presented the Court with any of the Board rulings questioned and rested without raising any claims about the 152 objections sustained by the Board.

In any event, as the Court had raised during the course of the proceeding, it is well settled that a proceeding to review determinations of the Boards of Election relating to petitions must be brought within 14 days of the last day to file the petition at issue. Election Law, §16-102 (subd. 2); see, e.g., Matter of Conservative Party v. Schwartz, 45 AD2d 976 (3d Dept. 1974), affirmed, 34 NY2d 983 (1974). Because the Board of Elections validated the Trotto/Alden Designating Petition, the Respondent candidates do not get the benefit of the three days allowed by Section 16-102 (subd. 2) of the Election Law to bring a challenge to a determination of invalidity. The Court also notes that the Respondent candidates never filed an answer, having moved to dismiss, and therefore, there is no issue about a cross-claim or counterclaim, though prior court leave (which was not obtained) would have been required for a cross-claim or counterclaim. See, e.g., Matter of White v. Bial, 21 AD3d 573 (2d Dept. 2005), leave to appeal dismissed, 5 NY3d 824 (2005); Matter of Flood v. Schopfer, 20 AD3d 417 (2d Dept. 2005).

The determinations made herein result in the invalidation of 44 signatures. Reducing the number of signatures not invalidated by the Board of Elections (2,020) by 44 leaves the Trotto/Alden Designating Petition with 1,976 signatures, 24 short of the required 2,000 signatures.

Accordingly, the Trotto/Alden Designating Petition is found to lack the required number of valid signatures and, hence, is not valid. The Petition to invalidate the Trotto/Alden Designating Petition should, therefore, be granted.

The Court, in addition to considering the testimony and exhibits received during the course of the hearing, has also considered the following papers:

4)Verified Answer and Return of Respondent Cathy L. Richter Geier, Commissioner of Elections, verified July 30, 2008, together with the exhibits annexed thereto, submitted with proof of due service;

5)Verified Answer of Respondent Anita S. Katz, Commissioner of Elections, verified July 30, 2008;

6)Notice of Motion, dated July 31, 2008; Affidavit of Cameron Alden, sworn to July 31, 2008;Affirmation of Vincent J. Messina, Jr., Esq., dated July 31, 2008; Memorandum of Law in Support of Motion, dated July 31, 2008, all submitted with acknowledgment of due service;

7)Affirmation of Louis J. Petrizzo, Esq., dated August 4, 2008, together with the exhibits annexed thereto; Memorandum of Law In Opposition to Motion to Dismiss, dated August 4, 2008, all submitted with proof of due service;

8)Reply Affirmation of Vincent J. Messina, Jr., Esq., dated August 4, 2008, together with the exhibits annexed thereto; Reply Memorandum of Law, dated August 4, 2008,

9)Stipulation dated August 4, 2008, together with letter from Louis J. Petrizzo, Esq., dated August 4, 2008;

11)Post Hearing Memorandum of Respondents Alden and Trotto, dated August 8, 2008.

Based on the papers aforesaid, and upon the evidence received, and for the reasons above stated, it is hereby

ORDERED that the Verified Petition of Petitioners Jennifer A. Henry, Margaret B. Shaw and Robert Hulse to invalidate the Designating Petition designating Hertha C. Trotto and Cameron Alden as candidates for the public office of Judge of the District Court of Suffolk County, Fifth District, Town of Islip at the Republican Party Primary Election to be held on September 8, 2008, is granted; and it is further [*41]

ORDERED that the designating petition filed with the Suffolk County Board of Elections (under Identification Number R-08-30) designating Hertha C. Trotto and Cameron Alden as candidates for the public office of Judge of the District Court of Suffolk County, Fifth District, Town of Islip, New York at the Republican Party Primary Election to be held on September 9, 2008 is declared to lack the required number of valid signatures and therefore invalid; and it is further

ORDERED that the Suffolk County Board of Elections is enjoined and restrained from printing and placing the names of Hertha C. Trotto and Cameron Alden as candidates for the public office of Judge of the District Court of Suffolk County, Fifth District, Town of Islip on the official ballots to be used in the Republican Party Primary Election to be held on September 9, 2008.

The foregoing constitutes the Decision and Order of this Court.

Dated:White Plains, New York

By: Louis J. Petrizzo, Esq.

Attorneys for Petitioners

200 West Main Street

Babylon, New York 11702

P. KEVIN BROSNAHAN, JR., ESQ.

Co-Counsel for Petitioners

75 West Main Street

Babylon, New York 11702

VINCENT J. MESSINA, JR. ESQ.

Robert L. Cicale, Esq.

Attorney for Respondents Hertha C. Trotto and Cameron Alden

267 Carleton Avenue Suite 301 [*42]

Central Islip, New York 11722

GARRETT W. SWENSON, JR., ESQ.

Attorney for Respondent Commissioner Cathy L. Richter Geier

361 Clubhouse Court

Coram, New York 11727

DANIEL BELANO, ESQ.

Attorney for Respondent Commissioner Anita S. Katz

93 Wheeler Road

Central Islip, New York 11722