Supreme Court, New York County

Decided on May 1, 2026

Index No. 154729/2026

Matthew V. Grieco, J.

[*1]

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 14, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 were read on this motion to/for ELECTION LAW - INVALIDATE PETITION.

Upon the foregoing documents, the cross-motion to dismiss the petition is denied.

In this special proceeding pursuant to Election Law §§ 6-122, 16-100, 16-102, and 16-116, petitioner candidate Illapa Sairitupac seeks to invalidate the designating petition that respondent Jasmin Sanchez filed with respondent Board of Elections in the City of New York ("BOE") to appear as a candidate for the Democratic Party in the June 23, 2026 primary election for the office of Member of the Assembly for the 65th Assembly District, State of New York, on the ground of residency ineligibility. Respondent Sanchez cross-moves to dismiss the petition on the basis of defective verification.

Election Law § 16-116 requires that a special proceeding under Article 16 of the Election Law "shall be heard upon a verified petition" (see Tenneriello v Board of Elections of City of NY, 63 NY2d 700, 701 [1984]). That "requirement is jurisdictional in nature, and cannot be cured by amendment" (Goodman v Hayduk, 64 AD2d 937, 938 [2d Dept 1978], affd 45 NY2d 804 [1978]).

1. Due Diligence in Raising the Objection

Sairitupac contends that Sanchez waived the right to object to his verification because she did not raise it with due diligence.

CPLR 3022 provides:

A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.

The Court of Appeals has "never specified a uniform time period by which to measure due diligence" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; see Miller v Board of Assessors, 91 NY2d 82 n 3 [1997] [noting that "[v]arious lower courts have defined due diligence to mean within 24 hours," while others "have measured due diligence according to the particular circumstances of the case"]). Election Law proceedings are, of course, subject to severe time constraints, necessitating immediate action (see Staber v Fidler, 65 NY2d 529, 534-535 [1985]; Stavisky v Chu, 230 AD3d 1278, 1279 [2d Dept 2024]).

Sairitupac notes that he served Sanchez with a copy of his invalidating petition on April 15, 2026, via Priority Overnight Federal Express, at the address listed on Sanchez's designating petition (318 Madison St., New York, NY 10002), but that her attorney did not raise an objection until emailing Sairitupac's attorney on April 19, 2026. Sairitupac concedes that Federal Express records reflect that the petition was not actually delivered to Sanchez until April 24, 2026 (NYSCEF Doc. Nos. 27 ¶ 12; 32), but because Sanchez's counsel "[e]vidently . . . obtained the Invalidating Petition through some other method . . . , he could only have obtained it from the court's e-filing system," where it had been available since April 13, 2026 (NYSCEF Doc. No. 27 ¶¶ 13-14). Sairitupac thus argues that Sanchez should be charged with a six-day delay, which should not be deemed due diligence.

Sanchez's attorney states that he did not check NYSCEF until April 19, 2026, and that he emailed his objection to the verification within hours of that discovery (NYSCEF Doc. No. 25 ¶¶ 8, 15; No. 35 ¶¶ 2-11). He rightly argues that he had no obligation to monitor NYSCEF every day in anticipation that something might possibly be filed against a client. By searching, on his own initiative, on April 19, 2026, five days before service was received, he was more than duly [*2]diligent. Under the circumstances, that diligence outweighs Sairitupac's argument that Sanchez herself brought about the delay in delivery of service by failing to include her apartment number on her designating petition.

2. Use of an Affidavit Rather Than CPLR 2106 Verification

As to the merits of the verification objection, Sanchez argues that Sairitupac's petition had to be verified in accordance with CPLR 2106 (pertaining to affirmations), and because his verification did not utilize the language of that provision, the pleading is a nullity under CPLR 3022. Sairitupac counters that his verification was by affidavit, and therefore the language did not have to track CPLR 2106.

CPLR 2106 ("Affirmation of truth of statement") provides that "affirmation shall be in substantially the following form:"

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, except as to matters alleged on information and belief and as to those matters I believe it to be true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

The verification on Sairitupac's petition stated:

ILLAPA SAIRITUPAC, being duly sworn, says as follows: he is the petitioner in the within proceeding, has read the foregoing petition and knows the contents thereof; the same is true to petitioner's own knowledge, except as to matters stated to be alleged upon information and belief, and as to those matters, he believes it to be true [NYSCEF Doc. No. 1 at 7].

That phrasing does not substantially conform to CPLR 2106, and thus, if mandated, Sairitupac's verification would be defective.

According to Sanchez, there is such a mandate and it derives from CPLR 3020(a), which states, in pertinent part:

Generally. A verification is a statement, subscribed and affirmed to be true under the penalties of perjury in accordance with rule twenty-one hundred six of this chapter, that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters such deponent believes it to be true.

In turn, CPLR 2106 states, in relevant part:

(a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, other than in a deposition, or an oath of office, or an oath required to be taken before a specified person other than a notary, may be used in an action in New York in lieu of and with the same force and effect as an affidavit, a certificate, a response to a notice to admit, an answer to interrogatories, a verification of a pleading, a bill of particulars and any other sworn statement. Such affirmation shall be in substantially the following form . . . [emphasis added].

The emphasized clause states that an affirmation "may be used . . . in lieu of and with the same force an effect as an affidavit," not that an affirmation completely supplants any use of an [*3]affidavit. The rule goes on to specify the language that must be used in "[s]uch affirmation," not every sworn statement, and not an affidavit. Therefore, if a proper affidavit is used as a verification, it will be "in accordance with" CPLR 2106, as directed by CPLR 3020(a), because CPLR 2106 itself distinguishes between affirmations and affidavits. That conclusion is reinforced by CPLR 3020(d), which states: "By whom verification made. The verification of a pleading shall be made by the affidavit of the party." Further reinforcement is found in CPLR 3021 ("Form of affidavit of verification"): "The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true."

Affidavits are governed by CPLR 2309(b) ("Oaths and affirmations"), which provides that "[a]n oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs" (see Collins v AA Trucking Renting Corp., 209 AD2d 363 [1st Dept 1994] [within the parameters of CPLR 2309(b), "[t]here is no specific form of oath required in this State"]). Under Executive Law § 135, "[e]very notary public duly qualified is hereby authorized and empowered within and throughout the state to administer oaths and affirmations, to take affidavits and depositions."

Sairitupac's verification was signed and stamped by a notary, who attested that it had been: "Sworn to before me this 13th day of April, 2026" (NYSCEF Doc. No. 1 at 7). Although there is no record of the exact oath that the notary administered to Sairitupac, the jurat and stamp of the notary raises the strong presumption of a proper oath (see Collins, 209 AD2d at 363; People v Gouiran, 192 AD2d 620 [2d Dept 1993], lv dismissed 81 NY2d 1014 [1993]).

In sum, CPLR 2106 accords a verification supported by a notarized affidavit "the same force and effect" as one supported by an affirmation containing the statutorily prescribed language, and Sairitupac's CPLR 2309(b)-compliant verification was valid.^FN1 Had the legislature truly intended the momentous changes posited by Sanchez, that affidavits are now eliminated, or that affidavits must recite a specific formula, or that the interchangeability of affirmations and affidavits is a one-way street (permitting affirmations to be used in place of affidavits, but not affidavits in place of affirmations), it would have clearly stated so.

In light of the foregoing, this Court need not reach Sairitupac's alternative argument that even if the verification were defective, there was no prejudice to Sanchez, and any irregularity could therefore be overlooked, or whether such an infirmity could not be excused, at least in the Election Law setting.

Accordingly, it is

ORDERED that respondent candidate's cross-motion to dismiss the petition is denied.

This constitutes the decision and order of the Court.

DATE 5/1/2026

MATTHEW V. GRIECO, J.S.C.