Melanie Rimkus, Candidate, Petitioner, v  Colleen Rogers, Objector, et al., Respondents.

Deanne M. Vitrano, Petitioner, v  Mohammed Jahangir Alam, Candidate, et al., Respondents.

Supreme Court, Erie County, August 17, 2023

Peter A. Reese, Buffalo, and James Ostrowski, Buffalo, for Mohammed Jahangir Alam, petitioner in the first above-entitled proceeding and respondent in the third above-entitled proceeding.

Peter A. Reese, Buffalo, and James Ostrowski, Buffalo, for Melanie Rimkus, petitioner in the second above-entitled proceeding.

Jeremy C. Toth, County Attorney, Buffalo, for Erie County Board of Elections and others, respondents in the first, second and third above-entitled proceedings.

Joseph T. Burns, Williamsville, for Colleen Rogers, respondent in the second above-entitled proceeding.

Jessica Kulpit, Buffalo, and Brittanylee Penberthy, Buffalo, for Deanne M. Vitrano, respondent in the first above-entitled proceeding and petitioner in the third above-entitled proceeding.

At a Special Term of this court, petitioners, Mohammed Jahangir Alam and Melanie Rimkus, by their attorneys Peter A. Reese, Esq. and James Ostrowski, Esq., having duly moved for an order, pursuant to article 16 of the New York Election Law, seeking to validate their independent nominating petitions and place their names on the general election ballot upon the grounds that respondents Vitrano and Rogers failed to specify the "volume" number on their specific objections as required by NY Election Law § 6-154 (3) (a) (i); they also seek an order, pursuant to NY CPLR 3001, declaring that respondents, Erie County Board of Elections et al., have violated the New York Open Meetings Law (Public Officers Law § 100 et seq.).

These petitions and opposition papers were filed in connection with the underlying Erie County Board of Elections administrative hearings invalidating the aggrieved parties' independent nominating petitions, which hearings occurred on the same date. The issues and allegations raised in the Alam petition and the Rimkus petition are identical. The defenses raised to the allegations in both petitions are also identical. To that end, for the purpose of judicial economy and upon consent{**80 Misc 3d at 644} of all counsel, the court shall issue one decision to address the relief requested in both petitions.

On or about July 24, 2023, based on the respondent/objectors' specific objections, the Erie County Board of Elections ruled that petitioner Alam's and petitioner Rimkus's independent nominating petitions were invalid for not having the requisite number of valid signatures and for petitioner Alam having a defective independent nominating petition, which rendered all of his signatures invalid. Thereafter, petitioners filed an order to show cause seeking to have their independent nominating petitions validated and have their names placed on the general election ballot.

Regarding the alleged Open Meetings Law violation, the Appellate Division, Fourth Department has previously ruled on this issue. In Matter of Boniello v Niagara County Bd. of Elections (131 AD3d 806 [4th Dept 2015]), petitioner contended that the Niagara County Board of Elections violated the Open Meetings Law and his due process rights to notice and a hearing. The Appellate Division, Fourth Department held that in a proceeding to validate a designating petition the burden of proof is on the candidate to establish that the petition is valid and not merely to establish that the Board committed a procedural error. (Id. at 807.)

In this instance, petitioners only addressed the alleged Open Meetings Law violation and never addressed the merits or the crux of the matter at issue: whether their clients possessed the requisite number of valid signatures for their respective independent nominating petitions. Even after the court prompted petitioners to address the number of valid signatures and the inaccurate or misleading office identified by petitioner Alam in his petition, at no time did petitioners address the court's inquiry during their oral arguments. Accordingly, petitioners bear the burden of proof to establish that the candidates' independent nominating petitions are valid, not the respondents. The record is void of same.

Further, in Boniello (at 808), the Court stated: "[p]etitioner was not entitled to any greater [*2]due process than that provided by the statutory process for judicial review of [the Board's] determination pursuant to Election Law § 16-102 (1) . . . , and petitioner took advantage of that process." Here, the record is clear that the Erie County Board of Elections (hereinafter the ECBOE) properly ruled on the specific objections duly filed by respondent Vitrano and respondent Rogers. This authority is{**80 Misc 3d at 645} vested in the ECBOE pursuant to New York Election Law § 6-154 (2). Petitioner Alam submitted 1,830 actual signatures on his designating petition. After a thorough review of same and the respondent Vitrano's specific objections, the ECBOE determined 1,091 to be invalid, leaving petitioner with only 739 valid signatures. NY Election Law § 6-142 (2) (a) provides that 1,500 signatures of registered Erie County voters are required for the position of County Executive. Petitioner Alam failed to meet the 1,500 signature requirement and on July 24, 2023, the commissioners of the ECBOE determined that petitioner Alam was unsuccessful in his challenge to the specific objections filed by respondent Vitrano and his independent nominating petition was rejected. Regarding petitioner Rimkus, she submitted 229 actual signatures on her independent nominating petition. After a thorough review of same and respondent Rogers's specific objections, the ECBOE determined that 30 signatures were invalid, leaving petitioner with only 199 valid signatures. Two hundred five valid signatures are required for this elective office. Petitioner Rimkus failed to meet the 205 signature requirement and on July 24, 2023, the commissioners of the ECBOE determined that petitioner Rimkus was unsuccessful in her challenge to the specific objections filed by respondent Rogers and her independent nominating petition was rejected.

It is important to note that petitioners failed to state which contested signatures should be validated or why they should be validated and did not offer any evidence or proof establishing that any such signatures were valid. The Appellate Division, Fourth Department has ruled in Matter of Hennessy v Oneida County Bd. of Elections (217 AD3d 1452 [4th Dept 2023]) that a candidate seeking to validate a designating or independent nominating petition must state specifically which signatures he or she intends the court to validate after an invalidation by a Board of Elections. It states in pertinent part:

"A validating petition must specify the individual determinations of a board of elections that the candidate claims were erroneous, including the signatures that the candidate claims were improperly invalidated. Although a petitioner may satisfy that requirement by referencing exhibits attached to the petition, those exhibits must, under the circumstances, provide the respondents with adequate notice to permit them to prepare a defense to the petition." (Id. at 1453 [citations omitted].){**80 Misc 3d at 646}

Again, in the instant matter, the petitioners failed to specify which contested signatures they believed to be valid and did not offer any proof in evidentiary form to support their validating petition.

Instead of specifying which determinations of the ECBOE were erroneous, petitioners argue that NY Election Law § 6-154 (3) (a) (i) now requires that specifications relating to any objections include the volume number, page number, and line number of any signature objected to on any petition and that the specific objections of respondent Vitrano and respondent Rogers do not contain the statutorily required volume number or make any reference thereto. Petitioners believe that this is a fatal defect to the specific objections filed by respondents and petitioners base their argument and focus their proof on same.

This court disagrees with petitioners and concludes that the purpose of the "volume number, page number, and line number" requirement in NY Election Law § 6-154 (3) (a) (i) is [*3]to direct the opposing party to the specific signature that is in question (emphasis added). The volume number requirement presupposed that there is a series of volumes or bound submissions whereby not listing it would make it difficult or troublesome to locate the specific objection. If there is only one submission, it is irrelevant and there is no need to list the volume number.

Based upon the foregoing, and after due deliberation having been held thereon, it is hereby ordered, adjudged and decreed that the petition filed by Mohammed Jahangir Alam, under index No. 809369/2023, is hereby dismissed in its entirety, without costs; and it is further ordered, adjudged and decreed that the petition filed by Deanne M. Vitrano, under index No. 807110/2023, is dismissed as being moot considering the above determination; and it is further ordered, adjudged and decreed that the petition filed by Melanie Rimkus, under index No. 809363/2023, is hereby dismissed in its entirety, without costs.