Matter of Neider v Westchester County Bd. of Elections

Supreme Court, Westchester County

Decided on April 24, 2026

Index No. 62107/2026

William J. Giacomo, J.

In a special proceeding brought pursuant to Article 16 of the Election Law, under Index Number 62107-2026, petitioner-aggrieved candidate Brandon J. Neider seeks an order declaring the designating petition of J. Gary Pretlow for Member of the New York State Assembly, District 89, invalid in its entirety. In the related proceeding, under Index Number 62317/2026, petitioner J. Gary Pretlow seeks an order declaring his Democratic Party designating petition to be legally valid and sufficient and directing the Westchester County Board of Elections (Board of Elections) to place his name on the ballot as a Democratic Party candidate for Member of the New York State Assembly, District 89 for the primary election to be held on June 23, 2026.

Papers Considered Index No.:62107/2026 NYSCEF DOC NO. 1-20

1. Petition/Affirmation in Support of Brandon J. Neider/Memorandum of Law/Exhibits A-B/ Order to Show Cause/Affirmation of Service

2. Answer of J. Gary Pretlow/ Exhibits A-B/ Memorandum of Law

3. Neider's Memorandum of Law

4. Correspondence to the Court

5. Answer of the Board of Elections/ Exhibits 1-2/Memorandum of Law in Opposition

Papers Considered Index No.:62317/2026 NYSCEF DOC NO. 1-4;7

1. Petition/Exhibit A/Affirmation/Order to Show Cause

FACTUAL AND RELEVANT PROCEDURAL BACKGROUND

On April 3, 2026, J. Gary Pretlow filed a designating petition with the Westchester County Board of Elections seeking the Democratic nomination for the same office. The designating petition contained two volumes, each containing a cover sheet. The cover sheets [*2]contained the name of the candidate, party position and place of residence, but did not have Pretlow or his agent's signature at the bottom. On April 13, 2026, the Board of Elections sent a notice to the contact person to correct deficiencies as identified on the cover sheets. The contact person appeared at the Board of Elections and corrected the cover sheets on April 14, 2026.

Petitions

Neider moves to invalidate Pretlow's designating petition, on the basis that the cover sheets were unsigned and argues that this constitutes a fatal defect. Neider also argues that, even if the cover sheets were ultimately signed, the petition would still be invalid, since the Board of Elections waited 10 days to notify Pretlow of the defect, which is contrary to the allegedly mandatory nature of the two business day review window.

Neider, Pretlow and the Board of Elections all submitted briefs on the matter. After reviewing the record and hearing oral argument on the matter, as set forth below, the Court finds that Pretlow's designating petition is valid and Neider's petition to invalidate it is denied.

DISCUSSION

Cover Sheets

"Election Law § 6-134 (2) provides, in relevant part, "[s]heets of a designating petition shall be delivered to the board of elections in the manner prescribed by regulations that shall be promulgated sby the state board of elections, provided, however, that the sheets of any volume of a petition shall be numbered."

The New York State Board of Elections has enacted various regulations to comply with provisions of the Election Law. As relevant here, 9 NYCRR § 6215.1 states, among other things, that petitions with 10 pages or more shall contain a cover sheet. Then, 9 NYCRR § 6215.2 sets forth what information shall be contained on the cover sheets. In the statute, there is no mandatory requirement for the signature of the candidate or agent. Therefore, at the outset, Pretlow's cover sheets are valid regardless of whether Pretlow corrected them.

In any event, Election Law § 6-134 (2) provides that "[w]hen a determination is made that a designating petition does not comply with such regulations, the candidate shall have three business days from the date of such determination to cure the violation." See also 9 NYCRR § 6215.7 (d); see e.g. Matter of Armwood v McCloy, 109 AD3d 558, 559 (2d Dept 2013) ("9 NYCRR § 6215.7 (d), among other things, reiterates the provision of Election Law § 6-134 (2) that, when a board of elections determines that a designating petition does not comply with the regulations, the candidate shall have three business days to cure the violation").

In this situation, the Board of Elections notified Pretlow and/or his agent of the deficiencies with the cover sheets. Prelow has established that he properly cured the defects by submitting revised cover sheets which included the signature of candidate or agent, and also established that he cured this violation timely within 3 business days.

As explained below, contrary to Neider's contention, candidates cannot be penalized for the delay on the part of the Board of Elections to notify the candidate of cover sheet deficiencies. Pursuant to 9 NYCRR § 6215.7 (a) and (b),

"Within two business days of the receipt of the petition, the board with whom such petition was filed shall review the petition to determine whether the petition complies with the cover sheet and binding requirements of these regulations. In the event that, upon the review conducted pursuant to subdivision (a) of this section, the board determines that a petition does not comply with these regulations, the board shall forthwith notify the candidate or candidates named on the petition of its determination [*3]and the reasons therefor."

It is undisputed that the Board of Elections received Pretlow's designating petition on April 3, 2026 and notified him of the deficiencies 10 days later. Here, however, it is irrelevant that the Board of Elections waited more than two business after receiving Pretlow's petition to advise him to cure the defect. Courts have consistently held that it is an error to remove a candidate based on the Board of Election's failure to follow its own rules. The candidate must be given an opportunity to correct the defect, which Pretlow did, within his mandatory three day cure period. See e.g. Matter of Muhammed v Board of Elections in the City of New York, 109 AD3d 424, 425 (2d Dept 2013)(It was an error to remove the candidate from the ballot when "the petitioner was not given the full statutory opportunity to cure the purported defect in the cover sheet nor was she properly notified as required by the Rules of the Board of Elections"); see also Matter of Krance v Chiaramonte, 87 AD3d 669, 669 (2d Dept 2011) (internal citations omitted) (Court denied petition to invalidate a designating petition where the "cover sheets of the designating petitions . . . substantially complied with the requirements of the Election Law and the regulations of the New York State Board of Elections, to allow for the Rockland County Board of Elections . . . to cumulatively count the signatures within the subject designating petitions to reach the required minimum number of valid signatures. In any event, the candidate was not notified of, and given the opportunity to cure, the purported defect, as required").

Accordingly, the petition to validate is granted, and the Board of Elections is directed to place the name of J. Gary Pretlow on the appropriate ballot. The petition to invalidate is denied, and the proceeding is dismissed.

All other arguments raised on these petitions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

CONCLUSION

Accordingly, it is hereby

ORDERED that petitioner-aggrieved candidate Brandon J. Neider's petition (Index Number 62107/2026) seeking to invalidate the petition of J. Gary Pretlow for Member of the New York State Assembly, District 89, is denied and the proceeding is dismissed; and it is further

ORDERED that petitioner J. Gary Pretlow's petition (Index Number 62317/2026) seeking an order declaring his Democratic Party designating petition to be legally valid and sufficient and directing the Westchester County Board of Elections to place his name on the ballot as a Democratic Party candidate for Member of the New York State Assembly, District 89 for the primary election to be held on June 23, 2026, is granted.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 24, 2026

White Plains, New York

HON. WILLIAM J. GIACOMO, J.S.C.