In the Matter of Anthony Catalano et al., Petitioners, v  Christian John Fuentes et al., [*2]Respondents.

Supreme Court, Richmond County, October 11, 2018

Sinnreich Kosakoff & Messina LLP (John Ciampoli of counsel) for Christian John Fuentes and others, petitioners in the first above-entitled proceeding and respondents in the second above-entitled proceeding.

Law Offices of Martin E. Connor (Martin E. Connor of counsel) for Anthony Catalano and others, respondents in the first above-entitled proceeding and petitioners in the second above-entitled proceeding.

Zachary W. Carter, Corporation Counsel (Stephen Kitzinger of counsel), for Board of Elections of the City of New York, respondent in the first and second above-entitled proceedings.

At the Judicial Convention of the Democratic Party held on September 20, 2018, for the 13th Judicial District, Anthony Catalano and Orlando Marrazzo, Jr., were named as the Party's candidates for Justice of the Supreme Court for such district in the November 6, 2018 general election.

Christian Fuentes, Leon Moise and Michael Golding move here to invalidate the certificate of nomination and minutes naming Mr. Catalano and Mr. Marrazzo as candidates for Supreme Court and to restrain the Board of Elections from placing their names on the ballot in November (index No. 80089/2018).

For their part, the two candidates and convention officers Manuel Ortega and Sheila McGinn move to validate the certificate of nomination and convention minutes and to order the placing of Catalano and Marrazzo on the ballot in November's general election as the candidates of the Democratic Party for Supreme Court Justice in the district that is coterminous with the county of Richmond (index No. 80087/2018).^[FN1]

These applications were made returnable on Wednesday, October 10, 2018; service on the named parties and the Board{**62 Misc 3d at 269} of Elections of the City of New York was timely made on or before Friday, October 5. On October 9, 2018, at a meeting of the Board, arguments were heard and the Board, voting five-to-five, took no position.

From the motion papers, the letter brief on behalf of Mr. Fuentes et al. (the petitioners in this order), the memorandum of law on behalf of Mr. Catalano et al. (the respondents in this order), and oral argument on October 10, the case comes down to whether the failure to have the convention minutes certified by the chairwoman and secretary of the convention is a fatal defect which invalidates the nomination of the two candidates.^[FN2]

The Election Law provides that the certificate of nomination must be filed one day after the last day that a judicial convention could have been held, which in 2018, was the day after Monday, September 24. Catalano et al. complied with subdivision (6) of section 6-158—they filed their nominating petition on September 25.

The same provision of law provides that the minutes of the convention, certified by its chairperson and secretary, shall be filed within 72 hours after adjournment of the convention. The 13th District Judicial Convention adjourned on the evening of Thursday, September 20 (7:15 p.m.), and filed the minutes therefor with the Board of Elections of the City of New York on Monday afternoon, September 24, at around 1 p.m. (petitioners' exhibit 4). Such a 72-hour period that ends on Sunday advances to Monday, and, by itself, the filing of the convention minutes would satisfy the calendar (and the clock).

Timeliness is critical. Subdivision (2) of section 1-106 (added by L 1969, ch 529, Election Law former § 143) reads as follows: "The failure to file any petition or certificate relating to the{**62 Misc 3d at 270} designation or nomination of a candidate for party position or public office or to the acceptance or declination of such designation or nomination within the time prescribed by the provisions of this chapter shall be a fatal defect."

In 1982, 10 candidates from the Democratic Party's judicial convention for New York County had their nominations invalidated because the certificate of nomination was filed one day late (Matter of Gammerman v Board of Elections of City of N.Y., 57 NY2d 888 [1982], affg 90 AD2d 461 [1st Dept 1982], revg 115 Misc 2d 1055 [Sup Ct, NY County 1982]). The First Department cited Matter of Carr v New York State Bd. of Elections (40 NY2d 556 [1976]).

The Carr case was heard well after election day, but considered because of the likelihood of the issue reoccurring. The Court of Appeals invalidated the nominations of three judicial candidates from the Liberal Party because the certificate therefor was a day late. The Court looked to the memorandum of introduction of the Secretary of State in 1969 for what became [*4]section 1-106 (2) of the Election Law:

"The bill will . . . mak[e] the time limitations provided therefor absolute and not a matter subject to the exercise of discretion by the courts . . .

"The mandatory nature of the provisions of the Election Law relating to the time for filing establishes the rules of the game, which should be applied to all with equal effect . . .

"A liberal construction of such provisions would diminish their effect, resulting in confusion and inequality" (40 NY2d at 558).

In Matter of Thomas v New York State Bd. of Elections (44 AD3d 1155 [3d Dept 2007], affg 17 Misc 3d 1116[A], 2007 NY Slip Op 52029[U] [2007]), two Supreme Court Justice candidates were nominated by the Working Families Party on Monday, September 24, 2007, with the convention adjourning at 8 p.m. On September 27, at 5:30 p.m., a notary public was directed by the party to file the minutes by mailing them to the State Board of Elections. The post office was closed; the last mail pick up was 5:45 p.m.; the notary dropped them in the mailbox at about that time, but they were not postmarked until the next day.

The Third Department stated that a court, in its discretion, could "excuse the untimely filing of convention minutes when 'the delay in filing was brief and [does] not prejudice the integrity{**62 Misc 3d at 271} of the electoral process or disrupt the electoral machinery' " (44 AD3d at 1156, quoting Matter of Murphy v Acito, 65 AD2d 661 [3d Dept 1978], lv denied 45 NY2d 712 [1978]). However, the Third Department upheld Special Term in refusing to excuse the late filing "in light of both the disruption to the electoral process that would occur if the delay were excused and [the] failure to offer any excuse for the delay" (44 AD3d at 1157). Special Term relied, in part, on the State Board's explanation that the change in the 2007 primary calendar had shortened the time to the general election, which especially impacted absentee and military voters.

In any event, this matter is not about timeliness, but the substance of the minutes. Respondents rely on Matter of Hurd v Stout (97 AD2d 616 [3d Dept 1983]) which distinguishes the minutes from the certificate of nomination:

"Moreover, the two documents are inherently dissimilar since they make different representations; the minutes recite what actions transpired at the convention while the certificate of nomination is the embodiment of the ultimate disposition of the convention's deliberations" (97 AD2d at 617).^[FN3]

The Second Department has ruled that judicial convention minutes are entitled to a presumption of regularity (Matter of Reda v Mehile, 197 AD2d 723 [1993]). The Reda court contrasted Matter of Meader v Barasch (133 AD2d 925 [3d Dept 1987]), which invalidated a nomination for Supreme Court Justice where the convention minutes indicated that 20 delegates voted for Meader and 7 for another candidate, establishing that a quorum of 34 delegates was not present.

The Fuentes petitioners point to Matter of McCormack v Jablonski (132 AD3d 921 [2d Dept 2015]) and Matter of Dadey v Czarny (132 AD3d 1427 [4th Dept 2015]). Matter of McCormack involved the nominations of multiple candidates by the Women's Equality Party to town and city offices in Dutchess County. The Second Department invalidated the certificate of nomination: while it [*5]contained the notarized signatures of the presiding officer and secretary, there was no statement from either attesting to the truth of what was in the certificate. The Court ruled that such was a departure from prescribed content and not "a mere error in form" (132 AD3d at 923).

{**62 Misc 3d at 272}In Matter of Dadey, the Fourth Department came out the same way and for the same reasons. However, bear in mind that in each case, at issue was a certificate of nomination, not the proceeding's minutes.

Matter of Hurd v Stout supports viewing the convention minutes in a different light than a certificate of nomination. The minutes are to inform us as to what happened at the convention. Thus, in Meader v Barasch, they were the basis for extinguishing the nominee's candidacy because a quorum was lacking.

For the 13th Judicial District Convention, we have a 31-page transcript of what transpired, including: placing names in nomination, calling the roll, electing officers and remarks of candidates (petitioners' exhibit 2). Read into the record was a letter from the State Democratic Party Chairman to the Richmond County Democratic Chair, which contained the following: "Please note that . . . the Election Law requires that within 72 hours after adjournment . . . the minutes of the Convention, duly certified by the Chair and Secretary shall be filed with . . . the New York City Board of Elections" (id. at 5-6).

As we know, such was not done. With that said, this court concludes the convention minutes "make different representations." The court is not otherwise persuaded by the fact that the convention minutes, admitted into evidence, were not sworn to by the reporter; no objection to that effect was made at the hearing.^[FN4]

In view of the foregoing, it is ordered that the application (index No. 80089/2018) of Christian Fuentes, Leon Moise and Michael Golding to invalidate the certificate of nomination and convention minutes of the 13th Judicial District Convention of the Democratic Party making nomination for Justice of the Supreme Court 13th Judicial District, in the 2018 general election and restraining the Board of Elections of the City of New York from placing the names of Anthony Catalano and Orlando Marrazzo, Jr., on the ballot in the November 6, 2018 general election is denied; and the application (index No. 80087/2018) of Anthony Catalano, Orlando Marrazzo, Jr., Manuel Ortega and Sheila McGinn to declare valid the certificate of nomination{**62 Misc 3d at 273} and convention minutes of the 13th Judicial District Convention of the Democratic Party making nomination for Justice of the Supreme Court 13th Judicial District, in the 2018 general election and to order the Board of Elections of the City of New York to place the names of Anthony Catalano and Orlando Marrazzo, Jr., on the ballot in the November 6, 2018 general election is granted.

The representative of the Board of Elections expressed concern about a lack of verification in one set of papers, but such was corrected in the subsequent submission, and in any case, the issue does not effect consideration of motion Nos. 80089/2018 and 80087/2018 (citing Matter of Goodman v Hayduk, 45 NY2d 804 [1978], Matter of Tenneriello v Board of Elections of City of N.Y., 63 NY2d 700 [1984], and Matter of Niebauer v Board of Elections in the City of N.Y., 76 AD3d 660 [2d Dept 2010]).

Secondly, the respondents argue that the State Chairman of the Democratic Party should have been served, citing Matter of Regan v New York State Bd. of Elections (207 AD2d 647 [1994]) and Matter of Vasquez v Smith (224 AD2d 822 [1996]), but those Third Department cases involved the State Party's rules for selecting judicial convention delegates.

Footnote 3:The Hurd court, in 1983, made reference to the fact that certificates of nomination and convention minutes are governed by different statutes. The latter had been in section 6-126 until it became part of section 6-158 (6) by chapter 378 of the Laws of 1986.

Footnote 4:In the certification of nomination, the convention's chairwoman and secretary were sworn before a notary, as were the two judicial candidates in their respective certificates of acceptance (petitioners' exhibit 1).