Supreme Court, Queens County, August 16, 2022

Ali Najmi, New York City, for petitioners.

Messina Perillo Hill, LLP, Sayville (John Ciampoli of counsel), for Stefano Forte, respondent.

Sylvia O. Hinds-Radix, Corporation Counsel, New York City (Stephen Edward Kitzinger of counsel), for Board of Elections in the City of New York, respondent.

On this motion by order to show cause by objector-petitioner Ellen McRae and aggrieved candidate-petitioner Toby Ann Stavisky (collectively referred to as petitioners), for an order declaring insufficient, defective, invalid, null and void the independent nominating petition filed with respondent the Board of Elections in the City of New York (the Board), purporting to nominate respondent-candidate Stefano Forte, as candidate of an independent nominating body named "Independence" for the public office of State Senator for the 11th Senate District of New York State in the general election to be held on November 8, 2022, for an order directing, requiring and commanding the Board not to place and/or print Forte's name as candidate for the independent nominating body named "Independence" for the public office of the State Senator for the 11th Senate District of New York State in the general election to be held on November 8, 2022, and for an order declaring the independent nominating petition filed with the Board purporting to designate Forte as candidate for the independent nominating body named "Independence" for the public office of State Senator for the 11th Senate District of New York State on the official ballots to be used at the general election to be held on November 8, 2022, to be a legal nullity, and reversing any contrary determination of the Board that may have been made or may hereinafter be made, it is ordered and adjudged that the petition is granted for the following reasons:

In the instant proceeding brought pursuant to Election Law § 16-102, petitioners seek to invalidate an independent nominating petition nominating Forte as a candidate of the independent nominating body named "Independence" for the public office of State Senator for the 11th Senate District in a general{**76 Misc 3d at 800} election to be held on November 8, 2022. After Forte submitted his nominating petition to the Board, the petitioner Ellen McRae filed general objections to the nominating petition with the Board, and subsequently submitted specifications of objections. The objections allege that of the 4,162 signatures supporting the nominating petition, only 1,990 are valid. A clerk's report found that Forte's nominating petition contained only 2,307 valid signatures. Nevertheless, the Board did not adopt the clerk's report, and Forte's nominating petition was effectively declared valid.

Petitioners subsequently commenced this proceeding against Forte and the Board. The record before the court contains, among other things, the pleadings as well as Forte's affidavit. At a hearing on the return date of the petition, the primary issue before the court was whether the nominating petition contained the signatures of voters who resided outside of the 11th Senate District, as the specifications of objections assert that this is the case for numerous signatures in the petition. In opposition to this objection, Forte highlighted the recent reapportionment of New York's congressional and state senate districts. He acknowledged that certain signatures on his nominating petition may belong to voters who, under the new boundaries of the 11th Senate District, reside outside of the district. However, he asserted that, under these unique [*2]circumstances, these signatures should be declared valid, as he should not be penalized for relying on the old boundaries of the 11th Senate District when gathering signatures for the nominating petition. Specifically, he argued that the Board was obligated to make voter information for the new 11th Senate District available, and that the Board's failure to do so was what caused him to obtain signatures of voters outside of the new 11th Senate District. In addition, Forte waived all other objections to the clerk's report.

In reply, the petitioners noted that an interactive map of the new state senate district boundaries was available as soon as the new maps were finalized, and that this map could be found through a brief Internet search. In light of this, the petitioners argued that Forte had notice of the changes to the boundaries of the 11th Senate District and was obligated to take the necessary steps to gather signatures from voters who resided within the new 11th Senate District.

As an initial matter, notwithstanding petitioners' argument that Forte has advanced impermissible cross claims, the court{**76 Misc 3d at 801} entertained them as affirmative defenses, implicitly granted Forte permission to put forth his opposing arguments, and then held an extensive hearing on the "out of district" issue. Forte and petitioners alike were given the opportunity to submit additional papers after the hearing in order to address any issues raised at the hearing, particularly with regard to the "out of district" issue, which both Forte and petitioners did so submit in the form of expert affidavits. Based upon the hearing as well as the parties' submissions, the court agrees with the petitioners' argument with respect to the "out of district" signatures. Generally, "there must be strict compliance with statutory commands as to matters of prescribed content" of nominating petitions (Matter of Hutson v Bass, 54 NY2d 772, 774 [1981]). However, there are rare instances where, under the circumstances, substantial compliance with the Election Law requirements would be deemed acceptable (see e.g. Matter of Straniere v Cutolo, 59 AD2d 572 [2d Dept 1977]; Matter of Vasti v May, 54 AD2d 533 [3d Dept 1976]). As is relevant here, "[i]t is well settled that an incorrect statement of the assembly or election district of a signatory or subscribing witness on a nominating petition is a fatal defect, unless the error was caused by confusion due to reapportionment" (Matter of Morgan v Jenkins, 208 AD2d 732, 732-733 [2d Dept 1994] [citations omitted]; see Matter of Phanelson v Pabon, 192 AD2d 609, 609-610 [2d Dept 1993]; Matter of Berger v Acito, 64 AD2d 949, 950 [3d Dept 1978]).

Here, it is undisputed that following the Court of Appeals' decision in Matter of Harkenrider v Hochul (38 NY3d 494 [2022]), new congressional and state senate district maps were adopted on May 20, 2022 (see generally Matter of Harkenrider v Hochul, 2022 NY Slip Op 31471[U] [Sup Ct, Steuben County 2022]). Upon the hearing and a review of Forte's affidavit as well as the parties' expert affidavits, the court has determined that Forte has failed to establish that he made a reasonable effort to determine where the new senate district boundaries were located and to ascertain whether signatories were located within the new 11th Senate District. He merely asserted that the Board was obligated to provide him with this updated information upon his request, and that the Board's failure to do so was the root cause for the purported "out of district" signatures in his nominating petition. This argument, as well as his constitutional argument, lacks merit (see Matter of O'Hara v Board of{**76 Misc 3d at 802} Elections in the City of N.Y., 2022 NY Slip Op 32070[U] [Sup Ct, Kings County 2022], affd 207 AD3d 506 [2d Dept 2022], lv denied 38 NY3d 911 [2022]).

Furthermore, when the parties' arguments at the hearing as well as their evidence is weighed, Forte has failed to defeat petitioners' showing that as of May 21, 2022, updated maps [*3]were readily available, that they were easily accessible online, and that they were sufficient to determine whether potential signatories to Forte's nominating petition actually resided in the new 11th Senate District. In addition, Forte made no effort to establish that this is a case of voter confusion created by reapportionment, and the circumstances described above are insufficient to warrant such a finding (see Matter of Sciarra v Donnelly, 34 NY2d 970 [1974]). Therefore, Forte has failed to establish that any exception to the general rule of strict statutory construction should apply.

In light of the above determinations regarding "out of district" signatures, as well as Forte's waiver of all other objections to the clerk's report, upon de novo review, the court finds it appropriate to adopt the findings of the clerk's report. Moreover, the parties have, in essence, and as impacts this decision, adopted the clerk's report, as well. Accordingly, this court shall abide by the newly-drawn senate district boundaries, thereby rendering at least 1,106 signatures out of district. Given the clerk's report's finding that Forte had a total of 1,855 invalid signatures, this left him with only 2,307 valid signatures. Even if this court was to calculate the additional 27 signatures that were determined to be valid after the clerk's report was generated, Forte's number of valid signatures would still be below the 3,000 signatures required to appear on the ballot for the public office of State Senator.

Accordingly, it is hereby ordered and adjudged that the petition is granted; and it is further ordered and adjudged that the independent nominating petition of the independent nominating body named "Independence" carrying the name of Stefano Forte, for the public office of State Senator for the 11th Senate District in a general election to be held on November 8, 2022, is declared invalid, null and void, due to the failure of said petition to have the sufficient number of valid signatures; and it is further ordered and adjudged that respondent the Board of Elections in the City of New York is hereby enjoined, restrained and prohibited from causing, permitting or allowing the name of Stefano Forte to be printed or placed on the official ballots to{**76 Misc 3d at 803} be used at the November 8, 2022 general election for the public office of State Senator for the 11th Senate District, State of New York, as a candidate for the independent nominating body named "Independence."