Supreme Court, New York County

Decided on May 1, 2026

Index No. 154820/2026

Matthew V. Grieco, J.

[*1]

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26, 28, 29, 30, 31 were read on this motion to/for ELECTION LAW - INVALIDATE PETITION.

Upon the foregoing documents and the oral arguments on the record on April 29, 2026, the cross-motion is denied. The remaining issues (including the signature and residency allegations by petitioner) are currently pending before Special Referee Joseph Burke.

On April 16, 2026, petitioner aggrieved candidate Suzanne Jacobson filed this special proceeding pursuant to Election Law §§ 16-100, 16-102, and 16-116 to invalidate the designating petition filed by respondent candidate Micah Bergdale 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 Representative in Congress, 12th [*2]Congressional District, based on invalid signatures (NYSCEF Doc. No. 1). On April 23, 2026, petitioner filed an offer of proof, additionally alleging residency issues (NYSCEF Doc. No 11).

On April 29, 2026, respondent candidate filed a verified answer with exhibits (NYSCEF Doc. Nos. 23-25), setting forth the affirmative defenses that Jacobson's petition had not been properly verified, as required by New York Election Law § 16-116. On April 29, 2026, the parties appeared on the record, and respondent candidate cross-moved to dismiss the petition on the ground of invalid verification. The Court permitted the parties to submit letter briefing, which both sides availed themselves of (NYSCEF Doc. Nos. 27, 30, 31).

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]).

Respondent candidate Bergdale argues that petitioner Jacobson's petition had to be verified in accordance with CPLR 2106 (pertaining to affirmations), and because her verification did not utilize the language of that provision, the pleading is a nullity under CPLR 3022. Petitioner counters that her 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 Jacobson's petition stated:

SUZANNE JACOBSON, being duly sworn, deposes and says:

I am the petitioner in this proceeding; I have read the foregoing VERIFIED PETITION, know the contents thereof, and the same is true to my knowledge except as to those matters stated to be alleged upon information and belief, and as to those matters, I believe them to be true [NYSCEF Doc. No. 1 at 15].

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

According to Bergdale, 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 [*3]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 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."

Jacobson's verification was signed and stamped by a notary, who attested that it had been: "Sworn to before me this 15 day of April 2026" (NYSCEF Doc. No. 1 at 15). Although there is no record of the exact oath that the notary administered to Jacobson, 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 Jacobson's CPLR 2309(b)-compliant verification was valid. Had the legislature truly intended the momentous changes posited by Bergdale, 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.

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.