Petitioner-objector commenced the instant proceeding pursuant to Section16-102 of the Election Law, seeking to invalidate the nomination and restraining the Board of Elections from printing and placing Linda M. Murray upon the Official Ballots of such General Election upon the grounds that 1) a quorum of duly elected delegates was not present when Murray was nominated, and 2) that the number of delegates present did not provide for a correct and true proportionality to the votes for Governor and the party rules. This Court denied the motions to dismiss made by respondents ^[FN1] , and held a hearing on October 17, 2017. The Court allowed the parties to submit post hearing submissions, and received one submission from counsel for Dennis Zack and Susan McGuire, which was adopted by counsel for Linda M. Murray. Petitioner declined to make any further submission. Based on the credible testimony and documentary evidence, the Court makes the following Findings of Fact and Conclusions of Law:

The Rules of the Independence Party of New York provide for a proportionate number of delegates to the Judicial Convention for the Ninth Judicial District in relation to the number of votes for Governor in the last gubernatorial election. According to the Party Call and the Roll Call of elected delegates, 28 delegates were duly elected to the Judicial Convention for the Ninth Judicial District. The Rules of the Independence Party of New York establish that in order to establish a quorum at any judicial convention, there must be a "majority of the total number of delegates or respective alternates elected to serve at that convention."

Dennis Zack is an elected delegate residing in Dutchess County in the 105th Assembly District, which is in the Ninth Judicial District. He was selected by the Independence Party of New York to convene the Independence Party of New York's Ninth Judicial District Convention. The convention was held on September 24, 2017, at the Hampton Inn at 60 Centre Drive, Central Valley, New York. Prior to the Convention, Mr. Zack received a copy of the Roll Call from the State Independence Party. Susan McGuire, Chancy Murphy, Michael Amo, Niki Rowe, Yvonne Flowers and Harold Traudt were all elected delegates from Dutchess County, and were present at the Convention. Mr. Zack knows them personally. However, he does not know how many other elected delegates were present at the Convention. In addition to those named above, there were other people present in the room, but he does not know their names, or the names of all the other elected delegates. Chauncey Murphy made a motion to waive a reading of the roll call, which was adopted without objection. The vote to waive the roll call was taken by voice vote, not by raising hands. The minutes of the Convention, signed by Mr. Zack, indicate that a quorum was present. He does not know how many delegates would have to be present to form a quorum. He does not know whether there were 15 delegates at the Convention. Linda Murray was the only candidate nominated at the Convention, without objection.

Susan McGuire is an elected delegate residing in Dutchess County, which is in the Ninth Judicial District. She was present at the Convention on September 24, 2017, and was elected as [*2]its Secretary. She did not take a roll call. She prepared and signed the Minutes from the Convention, and swore to their truth. The Minutes indicate that a quorum was present. She does not know how many people at the Hampton Inn were elected delegates. She was not aware that 28 delegates were elected to the Convention, nor did she count the people in the room. Besides Dennis Zack, Chancy Murphy, Yvonne Flowers and Harold Traudt, she does not know how many other people were in the room. She did not ask anyone in the room if they were an elected delegate. She did not know any of the elected delegates from Westchester County.

Yvonne Flowers is an elected delegate to the Convention, residing in Dutchess County. She was present at the Convention on September 24, 2017. Patrick Watson, the alternate from her district, was not present at the Convention. The room where the Convention was held had tables and chairs. She sat towards the front of the room. People were coming and going from the room. Besides Dennis Zack, Susan McGuire, Chauncey Murphy, Michael Amo, Niki Rowe and Harold Traudt, she does not know if any other elected delegate was present at the convention, or if 15 delegates were present. The only people who identified themselves at the Convention were Dennis Zack and Susan McGuire.

Chauncey Murphy is an elected delegate to the Convention, residing in Dutchess County. He was present at the Convention on September 24, 2017. He did not know how many elected delegates were present at the Convention, nor was he aware that 28 delegates were elected to the Convention. He does not know how many people were in the room. He knows Dennis Zack, Susan McGuire and Yvonne Flowers. He met Harold Traudt while at the Courthouse waiting to testify. He does not know Michael Amo or Niki Rowe. Mr. Murphy made the motion to waive a reading of the Roll Call. No one asked him to make the motion. He has some experience with parliamentary procedure. He knows what a quorum is, but does not know whether a quorum was present at the Convention. He made the motion to waive the roll call because there was only one candidate placed in nomination.

Howard Traudt is an elected delegate to the Convention, residing in Dutchess County. He was present at the Convention on September 24, 2017. He saw Dennis Zack, Susan McGuire, Yvonne Flowers and Chauncey Murphy at the Convention. He does not know Michael Amo or Niki Rowe. He did not meet anyone else at the Convention.

The parties placed a Stipulation on the record that petitioner Kevin Jacobi was not at the Convention, and has no direct knowledge about what occurred at the Convention.

The Court finds that each of the witnesses testified credibly.

The minutes of the Independence Party of New York's Judicial Convention of the Ninth Judicial District are entitled to a presumption of regularity. Reda v. Mehile, 197 AD2d 723,724 (2d Dept. 1993 citing Richardson on Evidence, § 72 [Prince, 10th ed]. Those minutes indicate that a motion was made to dispense with the calling of the roll and recognized the presence of a quorum. "This presumption compels the adversary to come forward with affirmative evidence of unlawful or irregular conduct. 'Substantial evidence' is required to overcome the presumption of regularity." Prince, Richardson On Evidence, § 3-120 [Farrell, 11th ed] citing People v. Harris, 61 NY2d 9 (1983) and People v. Robinson, 191 AD2d 523 (2d Dept. 1993).

Only five elected delegates testified that they were present at the Convention. There is no dispute that there were 28 elected delegates and/or alternates eligible to attend and vote at the Convention, however, there was no proof presented by any of the remaining 23 delegates and/or [*3]alternates. The witnesses called by petitioner only know a very limited number of elected delegates, who they identified at the convention. None of the witnesses knew how many elected delegates or alternates were present at the Convention. As there was no direct proof that less than a majority of eligible delegates or alternates were present, petitioner has failed to set forth substantial evidence, or any evidence, to overcome the presumption of regularity attached to the minutes. The Court notes that Respondents had no burden of proof here, and were entitled to rest on the presumption.

That the delegates waived a roll call is of no moment. While Election Law § 6-126 (2) requires that "the roll of the delegates shall be called and each delegate when his name is called shall arise in his place and announce his choice", this is only required when "more than one candidate is placed in nomination." The evidence at the hearing established that only Linda M. Murray was placed in nomination at the Convention, and therefore, the Election Law did not require that the roll be called. Compare Meader v. Barasch, 133 AD2d 925 (3d Dept. 1987) (where two candidates where placed in nomination, and the minutes recorded the exact number of votes for each candidate, and with no record of abstentions or "no votes, the Court relied upon Election Law § 6-126 (2) for its conclusion that the number of votes counted in the minutes represented the total number of delegates present at the Convention). While it may be better practice to require a roll call in all situations, that is a matter for the Legislature, not the Court.

Accordingly, it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the respondent Linda M. Murray. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decision/order/judgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.