Rothschild v Monsey Fire Dist. (2011 NY Slip Op 50176(U))

Rothschild v Monsey Fire Dist.

2011 NY Slip Op 50176(U) [30 Misc 3d 1223(A)]

Decided on January 21, 2011

Supreme Court, Rockland County

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This opinion is uncorrected and will not be published in the printed Official Reports.

The following papers numbered 1 to 7 were read on this motion/petition:

PaperNumber

Order to Show Cause, Affirmations and Exhibits1

Affirmation and Exhibits in Opposition2

Memorandum of Law in Further Opposition3

Cases4

Affirmation and Exhibit5

Reply Letter Memorandum6

Reply Letter Memorandum7

Plaintiff-Petitioner, the former Commissioner for the Monsey Fire District (the "District"), brings this action and motion seeking (1) an order declaring that the election for a Commissioner for the District held on December 14, 2010 (the "Election") is null and void; (2) an order directing that Mr. Kramer, the new Commissioner for the District, be prohibited from performing any responsibilities as Commissioner for the District; (3) an order declaring Mr. Rothschild as the winner of the Election, or directing a new election; (4) an order and judgment declaring that the practices of having certain poll watchers present at the Election violated the civil rights of Mr. Rothschild and other voters; and (5) damages and attorneys' fees.

At oral argument on January 5, 2011, Mr. Kramer's counsel orally made a motion to dismiss the petition on the grounds that this Court lacked jurisdiction. Thereafter, the parties submitted papers to the Court on this aspect of the case.

[*2]Background

At the Election, 187 votes were cast for Mr. Kramer, and 113 votes were cast for Mr. Rothschild. The Secretary for the District (in an unsworn "Statement of Facts" attached to Mr. Rothschild's papers ^[FN1]) did not count the 51 affidavit ballots that were cast. The essence of the dispute is that Mr. Rothschild complains that at the polling station, certain poll watchers spoke to some voters in Yiddish, telling them that "the Rabbis changed their minds" such that they should not vote for Mr. Rothschild, but instead for Mr. Kramer. (See Affirmation of Brian D. Nugent (undated) at ¶ 9.) Mr. Kramer, not surprisingly, disputes this account. He attaches to the January 4, 2011 Affirmation of Sherri L. Eisenpress an affidavit from a poll watcher denying that he spoke to anyone in English or Yiddish about who to vote for, as well as a number of affidavits from voters denying that anyone spoke to them at the polls about their vote.

The Election was certified, with Mr. Kramer declared the winner, on December 16, 2010. After the parties were in Court on January 5, 2011, Mr. Kramer was sworn in as the Commissioner on that date by Justice David Fried, Justice of the Village Court of Spring Valley. As there was no stay in effect on January 5th (or at any time, for that matter), there was nothing improper about the swearing-in. The Court notes that the District maintains that the Election "complied in all respects with the applicable law."

Jurisdiction

It is long-settled that

In a summary proceeding pursuant to section 330 of the Election Law, the court's jurisdiction is limited to that conferred by the statute. . . . While section 330 gives the court summary power to set aside a Primary election and order a new one (subd. 2), it does not give the court summary power to do either of those things with respect to a General election;^[FN2] where a General election is involved, the court can make such determinations only in a plenary action in the nature of quo warranto, if the office is occupied, or in a plenary action for a declaratory judgment, if the office is not yet occupied. . . .

In short, the Board of Elections has the ministerial duty to count the votes and determine who has the most; and the court's sole jurisdiction in a summary proceeding under section 330 (involving a general election) is to correct errors of the Board in passing upon disputed paper ballots or in making the mathematical tabulation of the votes, and then to compel the Board to perform [*3]its duty of counting the votes, as corrected by the court, and certifying the winner.

Corrigan v. Board of Elections of Suffolk County, 38 AD2d 825, 329 N.Y.S.2d 857 (2d Dept. 1972). Stated more succinctly, "Any action Supreme Court takes with respect to a general election challenge must find authorization and support in the express provisions of the Election Law statute." Delgado v. Sunderland, 97 NY2d 420, 741 N.Y.S.2d 171 (2002) (quotations and citations omitted). As a result, when there is "a disputed issue of fact," "a plenary, quo warranto proceeding (see Executive Law § 63-b) [is] the proper vehicle for challenging the purported winner's right to take public office." Rettaliata-Tepe v. Katz, 46 AD3d 850, 850 N.Y.S.2d 466 (2d Dept. 2007).

In opposition to Mr. Kramer's motion to dismiss the complaint/petition, Mr. Rothschild argues that "the election of a Fire District Commissioner is not governed by the Election Law," but instead "by § 175 of the Town Law ^[FN3] as clearly established by precedent in the Second Department." However, neither of the two cases that he cites in support of this argument are on point. First, in Filiberto v. Roosevelt Fire Dist., 75 AD2d 572, 426 N.Y.S.2d 551 (2d Dept. 1980), although the Court did hold that "the instant case involves a special Fire District election which is governed by section 175 of the Town Law," it also held that the Article 78 proceeding was proper because "In an election case, a proceeding pursuant to CPLR article 78 is the proper vehicle when there is no disputed fact question." (emphasis added) (citing Mapes v. Swezey, 278 A.D. 959, 105 N.Y.S.2d 489 (2d Dept. 1951) (a"court has jurisdiction where the petition contains facts which entitle petitioner prima facie to the relief sought, there being no disputed question of fact, only an issue of law.") There is no doubt that in the instant matter, the only questions that need to be determined are disputed questions of fact regarding whether or not poll watchers spoke improperly to any voters. Thus, even in a special election such as for a fire or police office, as with a general election, a proceeding pursuant to CPLR article 78 is not the proper vehicle to resolve the remaining factual issues regarding the other claimed voting irregularities (see, Matter of Filiberto v. Roosevelt Fire District, supra ). When, as here, there are disputed questions of fact, the proper vehicle is either an action in the nature of quo warranto or an action for a declaratory judgment. If the successful candidate has assumed office, then an action in the nature of quo warranto is appropriate.

[*4]Duncan v. Board of Com'rs of Port Washington Police Dist., 207 AD2d 834, 616 N.Y.S.2d 633 (2d Dept. 1994). (Nor does the other case that Mr. Rothschild cites, Bethpage Fire Dist. v. Mancini, 114 AD2d 873, 495 N.Y.S.2d 156 (2d Dept. 1985), support his position. Bethpage Fire does not discuss Article 78 at all, but merely addresses the interplay of Town Law §§ 175 and 175-a.).

Accordingly, because an "action in the nature of quo warranto by the Attorney-General, now statutorily embodied in section 63-b of the Executive Law, is the exclusive means of . . . trying title to public office," Morris v. Cahill

96 AD2d 88, 469 N.Y.S.2d 231 (3d Dept. 1983) where, as here, there are open questions of fact, the Article 78 claims must be dismissed. See, e.g., Sellers ex rel. Village of Cobleskill v. Lapietra, 23 Misc 3d 368, 871 N.Y.S.2d 877 (Sup. Ct. Schoharie Co. 2009) ("The proper vehicle for challenging the results and contesting title to the public office of the purported winner is a quo warranto action, now codified in Executive Law § 63-b. The power to commence a quo warranto action is vested in the Attorney General, to be used only after the alleged usurper' has taken office. . . .") (citations and quotations omitted); Flood v. Schopfer, 20 AD3d 417, 799 N.Y.S.2d 232 (2d Dept. 2005).

The Section 1983 Claim

There is no dispute that defendants-respondents have not yet answered the complaint/petition. Nor does there appear to be any dispute that the Section 1983 claim is not yet ripe for adjudication. The Court will, therefore, allow the 1983 claim to go forward at this point. Once the amended complaint is served,^[FN4] defendants-respondents can answer or move as they see fit.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York