COURT RULING: Leber v. Rasmussen, et. al.

8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.

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STATE OF NEW YORK

SUPREME

COURT ULSTER

COUNTY

PHILLP

LEBER,

TERRIE

ROSENBLUM,

NANCY E.K.

SCHAEF,

Petitioners-Obj

ectors,

-against-

Decision

&

Order

Index No.: 15-2244

FREDRICK

RASMUSSEN

III,

Respondent-C andidate,

-against-

VICTOR WORK

and

THOMAS

F.

TURCO,

Commissioners

constituting

the

Ulster County

Board

of

Elections

Respondents.

Supreme Court,

Ulster County

Motion

Return Date:

August

4,2015

RII

No. 55-15-01256

Present:

Christopher

E.

Cahill,

JSC

Appearances:

Harris

Beach

PLLC

Co-Counsel for Petitioners-Obj

ectors

333

Earle

Ovington Blvd.,

Suite

901

Uniondale,

New York 11553

By:

Jared

Kasschau,

Esq.

Wapner, Koplovitz

&

Futerfas,

PLLC

Co-Counsel for

Petitioners-Obj

ectors

PO

Box

3268

Kingston,

New

York

12402

By:

Joshua Koplovitz,

Esq.

Rod

Futerfas,

Esq.



Christopher

Burns,

Esq.

Attorney for

Respondent-Candidate

369 Washington

Avenue

Kingston,

New York

12401

Beatrice Havranek,

Esq.

Ulster County Attomey

Attomey for

Respondents

PO

Box

1800

Kingston,

New York

12402

By: Clinton

G. Johnson,

Esq.

Cahill,

J.:

In this

proceeding

brought

pursuant

to various

provisions

of

Article 16

ofthe Election

Law,

the

petitioners-objectors

seek to annul

the

petition

designating

Fredrick

Rasmussen

III

as a

Working Families

Party candidate

for

the office of

County Executive

of Ulster

County

in the

September

10, 2015

primary

election.

By

Order dated

July 30,2015, this

Court directed

the

Ulster

County Board

of

Elections

to rule

on the

petitioners-objectors'

specific

objections

to Mr. Rasmussen,s

designating

petition

by 5:00

p.m.

on

July 31,

2015.

The

Commissioners

did,

in

fact, rule

on

the objections,

but

several of their rulings

were

split

decisions which

left

unresolved

whether

Mr.

Rasmussen's

designating

petition

contains

the requisite (and

stipulated)

32 valid

signatures in

order

to

appear on the

ballot in the

September

10, 2015

Working

Families Party

primary.

2



Accordingly,

this Court conducted a hearing on August 4,2015

to determine the

validity

of the 38 signatures

which

remained after the Commissioners

had

ruled

several

others

invalid by mutual consent.

After hearing what

amounted to the oral argument of the attomeys

(neither

attomey

called any witnesses

to

testiff,

and

the

admission

of five

Court exhibits was

stipulated to),

the

Court concludes as follows.

First, respondent-candidate's attomey conceded that


were

correct

inassertingthatfive(5)signatures(Page4,

line3;Page6,

line

l;Page6,

line2;Page6,

line

5; Page 8,

line 4)

had

to

be

declared invalid

because the five

(5)

signatories

had

previously

signed

the

designating

petition

of

incumbent

County

Executive

Michael Hein

as a candidate

for the

Working

Families

Party nomination for

County

Executive

in the September

primary

(see

Election Law

$

6-134

[3];

Ehrlich

v

Biamonte,65 AD2d990

[2d

Dept 2009]).

Second,

with

regard

to


argument

that

seven

(7)

signatures

(Page

4, lines 2

and

4;

Page 5, line 1; Page

6,

lines 3 and

4;

Page 14,

lines

2

and 4) must be

invalidated

because

the subscribing

witness

to

these signatures, Mr. Rasmussen

himself, had

previously

signed the Independence Party designating petition

of Elizabeth

Bemardo

for

UlsterCountyExecutive,theCourtagrees.

ElectionLaw$6-132(3)requiresthatthe

Statement

of

Witness

must

be

given

by

a

duly

qualified

voter

of the state

qualified

to

sign

the petition.

Based

on

Election

Law

$

6-134

(3),

however,

Mr. Rasmussen

was

not



qualified

to sign

the

petition

because he had

already

signed

the Bemardo

Independence

Party

petition.

Therefore,

he was

not

qualified

to complete

a

Statement

of

Witness,

and the

seven

(7)

signatures

at issue

(Ms.

Mcluckie's

signature

having

already

been invalidated

as

discussed

above) must

be

invalidated.

Next, as

to

petitioners-obj

ectors' contention

that the

signature

contained

on

Page

9,

line

3 is also invalid,

the

court agrees. while

the line

contains

the voter's

signature,

the

street

name and

town name, it

does

not contain

a

number

for the address.

This

omission has

been

held

to

be a

fatal defect

as

the requirements

of Election Law

6-130

which

includes the

complete

residence

of the signatory

must be strictly

complied

with

(Stoppenbush

v

Sweeney,

98

NY2d

a3l

Q0021;

Matter of DiSanzo v

Addabo,76

AD3d655l2dDept

20101).

Proceeding

to Page

12,


contend

that all four

(4)

signatures

are

invalid

because

the information

below the

subscribing witness's

signature which

requires

the

subscribing

witness

to identif

the

town

or

city where he

or

she resides

has

been left

blank

and

the witness's

residence

address

(16

Center

Street,

Phoenicia,

Ny

12464)

does not

identifu

a town

in

Ulster county.

The

court disagrees.

As recently

as

August

2ol4,the

Third

Department

has

held

that this

omission

is

not fatal

to the

validity

of the

signature

where,

as

here,

the

complete

residence

address

ofthe

subscribing witness

appears

elsewhere

on

the

same

page

of the

petition

and

where,

as

here,

there is

no evidence

of

fraud

or

that the

subscribing

witness

did not

live

at

the address

provided

(vanSavage

v

Jones,

120

AD3d

gg7



[2014]).

In

reaching this conclusion,

the

Court

also rejects the petitioners-objectors'

contention

that 1

6 Center Street, Phoenicia, NY

12464 does

not

identiff

a town in

Ulster

County.

Phoenicia is located

within

the

Town

of

Shandaken.

VanSavage

also requires

the

denial

ofpetitioners-objectors'

objections

to

page

14.

Proceeding

to

page

l6

which

contain four (4)

signatures,

the attorneys

agreed

during

oral argument

that

at

the most only two

(2)

signatures

could be valid

as

according

to the

Statement of

Witness, only two

(2)

signatures

were witnessed.

Again,

as

with

Pages

4, 5, 6

and

14,

the

two (2)

signatures

are

challenged

because

the

witness

identification

section

does

not

specif)

a

town or

city

as required by Election

Law 6-132. Pursuant

to

VanSavage

(supra),

however,

this challenge

must be

denied.

As to the second

objection that the

two

(2)

signatures must

be

invalidated

because the subscribing witnesses

failed

to

place

the correct

number

of

signatures

(4)

in the designated space,

the

petition

presented

no

statutory or

case

law to support

this

claim.

Accordingly, this objection

must be denied.

Finally,

as

to Page 19, the

Court

rejects


argument

and agrees

with respondent-candidate

that*7ll8l20l5,

the date written

to the left

of the signature,

is

obviously

a

mistake

as the

petition

itself

was

filed with the

Board

of Elections

on July

9,

2015,and,therefore,

the voter

could

obviously

not have

signed

it

later.

Accordingly,

that

signature

is valid.

To

summarize,

as

this Court,

based

on the

foregoing,

has

determined

that

the



designating

petition

of

Mr.

Rasmussen contains

only

25

valid

signatures,

the

petition

brought

pursuant

to Article l6

of the Election Law

must be

granted

in all respects,

without

costs.

Therefore, it is

ORDERED

that the

petition

is

granted

in all

respects, without

costs.

This shall

constitute the decision and order ofthe

Court.

The

original

decision

and

order and

all

other

papers

are

being delivered to the

Supreme Court Clerk for transmission

to the Ulster County

Clerk

for

filing.

The signing

ofthis

decision

and

order shall not constitute entry

or

filing

under

CPLR

2220.

Counsel is

not

relieved from

the applicable

provisions

of that rule regarding

notice

of

entry.

SO ORDERED.

Dated: Kingston. New York

August 5,2015

Papers

considered:

Order

to

Show

Cause

dated

July

17

,2015,

Koplovitz Affirmation

dated

July

16,

2015,

Verified

Petition

dated July 16,2015

and

annexed

exhibits

A-B;

Courr

Exhibits

l-5.

6

COURT RULING: Leber v. Rasmussen, et. al.

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Transcript of COURT RULING: Leber v. Rasmussen, et. al.