Petitioner, by way of Article 78 of the CPLR and Article 16 of the New York Election Law, seek by Order to Show Cause relief [a] declaring the name of Petitioner-Candidate Carmen J. Pineyro will appear on the ballot for Village of Freeport Election to be held on March 18, 2025 for the position of Village Mayor for the Village of Freeport on the Alliance for Freeport Party line; [b] declaring the name of Petitioner-Candidate Dina C. Skeffrey will appear on the ballot for Village of Freeport Election to be held on March 18, 2025 for the position of Village Trustee for the Village of Freeport on the Alliance for Freeport Party line; [c] declaring Petitioner-Candidate Gregory A. Schroeder is substituted in place of Craig J. Wright as a candidate for Village Trustee for the Village of Freeport on the Alliance for Freeport Party line; [d] declaring the name of Petitioner-Candidate Gregory A. Schroeder will appear on the ballot for Village of Freeport Election to be held on March 18, 2025 for the position of Village Trustee for the Village of Freeport on the Alliance for Freeport Party line and [e] for any further relief this court deem just and proper.

The Respondent, Freeport Village Clerk, Pamela Walsh Boening, opposes the Order to Show Cause and has made a motion to dismiss, as well as the Intervenors-Respondents Candidate, Robert T. Kennedy (Mayor), Evete Sanchez (Trustee) and Jacques V. Butler (Trustee). Although the term Article 78 has been used, this Court will consider the matter under Article 16 of the Election Law. Lewis v. Garfinkle, 32 AD3d 548 (2nd Dept. 2000).

The Court notes that the candidates in the contested race for Village Justice are not at issue here.

The facts of this petition are generally without dispute. Petitioners filed an independent nominating petition with the Village Clerk of Freeport naming Carmen J. Pineyro (hereinafter "Pineyro") as a candidate for Mayor and Dina C. Skeffrey (hereinafter "Skeffrey") and Craig J. Wright (hereinafter "Wright") as candidates for Village Trustee by the February 11 deadline.

Independent nominations require that candidates file either a Certificate of Acceptance or a Certificate of Declination within three days of the last day for filing nominating petitions. Thus, the last day for filing such certificates was February 14.

On February 14 Pineyro and Skeffrey each filed a Certificate of Acceptance with the Village Clerk. Wright did not file anything by that day or any day thereafter.

On February 15, 2025 the Respondent Village Clerk sent Wright a notice stating that given his failure to file any certificate, his nomination was invalid and his name would not appear on the ballot.

On February 18, 2025 a document entitled "Certificate of Substitution By Committee to [*2]Fill Vacancies After Declination, Death or Disqualification" was filed in the office of the Village Clerk. It named Gregory A. Schroeder (hereinafter "Schroeder") as a candidate for Village Trustee.

On February 20, 2025 the Respondent notified Pineyro and Skeffrey that she had found their nomination were invalid due to their certificates not being properly acknowledged, specifically regarding the absence of dates on the notarized documents.

On the same day she notified Schroeder (with copies to the members of the Committee to Fill vacancies) that she had found the Certificate of Substitution to be invalid for two reasons: (1) their had been no declination filed by Wright and his nomination was therefor void: and (2) the Certificate was deficient since the oath was missing information and the consent was not properly acknowledged.

On February 28, 2025 the Respondent received by Priority Mail service of a copy of the Order to Show Cause and there was no Petition or other document in the mailing.

This Court must first address the serious issues of jurisdiction, including verification and timeliness.

Under amendments to CPLR 2106, as of January 2024, a new form of verification was placed into law, and the current petition is under the incorrect language of the old law, not the current one. In Grandsard v. Hutchison, 227 AD3d 491 (1st Dept. 2024) the appellate court upheld a trial Court decision that the omission of the new 2024 verification language resulted in the petition not being verified, and affirmed the dismissal of the proceeding, in a fact pattern nearly identical to the case at bar.

Also at issue is the untimeliness of the petition. New York State Election Law 16-102(2) mandates that petitions must be filed 14 days after the filing of the petition, in this case, on February 11, 2025. Therefore, the petition must have been filed by February 25, 2025. On February 24, 2025, when the petitioner appeared before this Court, service was set as "overnight delivery" and was not received by the Freeport Village Clerk until February 27, 2025, by priority mail. This late notice has been construed as a jurisdictional default under Election Law 16-102(2). Moss v. D'Apice, 138 AD2d 436 (2nd Dept. 1988). It is noted this Court was not aware of the strict time-line, was not informed by petitioner's counsel, who, in any event, could have still met the statutory time limit by personal service the next day, February 25, 2025. Additionally, as a matter of law, the Court could not extend the deadline for proper service, since the 14 day statute as mandated and without Court discretion. DiStefano v. Borkowski, 153 AD3d 817 (2nd Dept. 2017).

Lastly, the Court points out that no verified petition with exhibits was served on the respondents and, at the time of this decision, no affidavit of service has been filed. Both of these failures to comply invalidated the petition.

Accordingly, based upon the above discussion, the Court finds jurisdiction has not been established for this proceeding and the petition must be dismissed.

However, assuming arguendo, the Court will proceed with a review of the merits of the action, as set forth below.

The Election Law of New York State is a statutory set of laws that are for the most part mandatory, and failure to adhere to these strict rules cannot be cured. Matter of Hudson v. Bass, [*3]54 NY2d 722 (1981). This is particularly the case here, where the issue is strict compliance. Substantial compliance, only relates to form and not prescribed content, such as personal acknowledgment. Matter of Higby v. Mastonery, 48 NY2d 15 (1979); Fuentes v. Lopez, 264 AD2d 490 (2nd Dept. 1999). Therefore, strict compliance controls in this case.

The certificate of acceptance or declination that were filed by Petitioner Pineyro and Skeffrey were not acknowledged in a manner that is required by law. Candidate Pineyro failed to strictly comply by failing to date the acceptance and by the notary failing to date the acknowledgment, (same as with Skeffrey) as well as a clearly printed name of the notary. A notary is required to print their name in addition to producing a duly executed signature and date of the notarial act. New York Executive Law 137: Davin v. Felberman, 205 AD2d 855 (2nd Dept. 2022). Burgess v. D'Apice, 112 AD2d 8058 (2nd Dept. 1985). There is no exemption to those requirements under the Election Law. Rhoades v. Westchester County, 109 AD3d 561 (2nd Dept. 2013).

Failure to date and sign can be a serious matter and can on occasion lead to accusation of fraud. Therefore, due to the fact the acknowledgment of Pineyro and Skeffrey were not duly acknowledged by way of the notarized petition, and as this process requires "strict compliance" and not substantial compliance, with the Election Law, the certificates of compliance are null and void. Rhodes v. Salerno, 90 AD2d 587 (3rd Dept. 1982); Stevens v. Collins, 120 AD3d 696 (2nd Dept 2014).

The second trustee candidate, Craig Wright, never submitted a certification of acceptance or affidavit of declination. Candidate Wright is required by statute to either accept or reject his nomination and he must do one or the other, and failure to do either results in his nomination being null and void. Election Law 6—146(3). Matter of Meehan v. Giunta, 74 AD3d 972 (2nd Dept. 2010); Seawright v. Board of Elections, 35 NY3d 227 (2020). A certificate of declination of candidate Wright is required for the committee to fill vacancies for a replacement candidate, here, it's proposed trustee candidate Gregory A. Schroeder. Matter of Harper v. NYS Board of Elections, 34 AD3d 919 (3rd Dept. 2006). Thus, replacement petitioner trustee candidate Schroeder is prohibited from being placed on the ballot as a candidate for election. Gdanski v. Rockland County Board of Elections, 97 AD2d 744 (2nd Dept. 1983). Due to the fact the Wright nomination is rendered null and void, any attempt at substitution cannot be valid. Ferrandino v. Sammuf, 185 AD3d 992 (2nd Dept. 2020). In any event, as a final note, the Schroeder substitution certificate is invalid, as the notary, once again, has failed to fill in the date upon which the committee to fill vacancies were sworn.

In addition to the oral arguments on March 5, 2025, the Court also reviewed and considered the petition and all attached exhibits, the Memorandum in Support of Petitioner, Motion to Dismiss and Memorandum in Support for the Freeport Village Clerk and the Memorandum in Support for the Intervenors-Respondents.

Accordingly, the Petition of the Petitioners-Candidates is hereby denied in its entirety, and the Motion of the Respondent, Boening, Freeport Village Clerk, to dismiss the petition is granted in its entirety.

This determination shall constitute the decision and Order of the Court.

It is, SO ORDERED.