STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
In the Matter of the Application of
MARJORY H. JAEGER, Objector,
THOMAS W. PECORARO and
Carol Berman, Neil w. Kelleher, Evelyn J. Aquila
and Helena Moses Donohue, as Commissioners of
and constituting the New York State Board of Elections,
for an Order pursuant to Article 16 or the Election Law declaring the Independence
Party designating petition of Thomas W. Pecoraro for the public office of Representative
in Congress, 27th District, State of New York, at a primary election to be held on
the 12th day of September 2000 invalid, null and void.
In the Matter of the Application of
MARJORY H. JAEGER, Objector,
Index No. 2000/6439
THOMAS W. PECORARO and
Respondent - Cross Petitioner
NEW YORK STATE BOARD OF ELECTIONS
SAWN ST BLDG
CORE 1, Empire State Plaza
Albany, New York 12223-1650
Commissioners of Elections and constituting
the NY State Board of Elections,
For an Order declaring valid, the Independence designating Petition of THOMAS A. PECORARO
for the public office of MEMBER OF THE U.S. House of Representatives,
27th Congressional District, State of New York at a primary election to
be held on September 12, 2000.
Appearances: RONALD P. BENNETT, ESQ.
Attorney for Marjory H. Jaeger
MARK JASEN, ESQ.
Attorney for Thomas W. Pecoraro
TODD VALENTINE, ESQ.
Attorney for Board of Elections
MICHALEK, JOHN A., J.
This matter comes before the Court by way of Petitioner, MARJORY H. JAEGER's, Order to Show Cause, seeking an Order pursuant to Article 16 of the Election Law, declaring the Independence Party's designating Petition of THOMAS W. PECORARO, for the public office of Representative in Congress 27th District, State of New York at a primary election to be held on the 12th day of September, 2000, invalid, null and void.
The Respondent, BOARD OF ELECTIONS, after the signing of the Order to Show Cause, did take the position of invalidating the Independence Party Designating Petition of THOMAS W. PECORARO.
Respondent, THOMAS W. PECORARO, cross-moves by Order to Show Cause for an Order declaring valid, the Independence Designating Petition of THOMAS W. PECORARO for the public office of member of the US House of Representatives, 27th Congressional District, State of New York at a primary election to be held September 12, 2000.
This matter did come before the Court on the return date on the Orders to Show Cause and for a Hearing on Monday, August 14, 2000.
At the outset, this Court notes and sets out, based on the actions by the BOARD OF ELECTIONS, and the relief requested by the Petitioner, MARJORY H. JAEGER is moot. It is noted this was done with over the objection of Petitioner's counsel.
At the Hearing, testifying for the Cross-Petitioner that is, THOMAS W. PECORARO, was Daniel Ward, Esq., Ralph Mohr, Commissioner from the BOARD OF ELECTIONS and THOMAS W. PECORARO. The only witness for the Petitioner / Cross Respondent was Ralph Mohr, Commissioner from the BOARD OF ELECTIONS.
It appears clear, the necessary number of signatures to qualify an Independent Party Designating the Petition for the Public Office of Representatives in Congress 27th District of the State of New York at a primary election to be held on the 12th day of September, 2000, is three hundred seventy-three (373). There is no dispute, the Cross-Petitioner, THOMAS W. PECORARO did submit four hundred two (402) signatures. The BOARD OF ELECTIONS, thereafter, did invalidate forty-nine (49) of those signees, leaving a remaining amount of three hundred fifty-three (353) signatures, i.e. twenty (20) short of the necessary qualifying number. It is noted, the BOARD OF ELECTIONS did invalidate the Designating Petitions of THOMAS W. PECORARO. Therefore, what remains before the Court by way of the Cross Petition is a validation proceeding.
At Hearing, Cross-Petitioner did assert, and submitted proof that twenty-two (22) of the forty-nine (49) signatures invalidated by the BOARD OF ELECTIONS, should be declared valid and proper thereby allowing Petitioner the necessary number of signees to qualify for the primary election to be held September 12, 2000.
The first proof submitted before the Court by Cross-Petitioner, was the invalidated Petition signature page of attorney, Daniel Ward. He had witnessed and notarized a petition sheet containing fifteen (15) signatures. The basis, of the action by the BOARD OF ELECTIONS invalidating the fifteen (15) signatures thereon, was that the signature sheet signed by Daniel Ward is not dated. That is not to say, there were no dates next to the individual signatures on the sheet, but no date set out as to the signature of Daniel Ward as notary thereon.
It is asserted by Cross-Petitioner's counsel, Mark Jasen, Esq., this form as completed by Daniel Ward, Esq., did substantially comply with the requirements of the Election Law. Counsel for original Petitioner, MARJORY H. JAEGER, sets out, pursuant to the standards of the State of New York, i.e. specifically Election Law Section 6-132, Subdivision 2, strict compliance was required as to the date requirement. The Election Law section noted, provides each sheet of a designated petition must contain a statement of a subscribing witness and shall be dated and signed by that witness (The Matter of MacKay v. Cochran, 695 NY2d 113; 264 AD2d 699, Second Dept, Sept 10, 1999). This Court agrees with Cross-Respondents, that is, the date is a matter of prescribed content and therefore strict compliance was required. See also (Matter of Hutson v. Bass, 54 NY2d 772, 443 NYS2d 57; Matter of Frohm v. Board of Elections of Nassau County, 89 AD2d 950, 951, 454 NYS2d 94. Therefore, the action taken by the BOARD OF ELECTIONS invalidating fifteen (15) signatures on the sheet signed by Daniel Ward, Esq., is sustained.
It has also been submitted, that five (5) individuals who had signed the Petition sheet of Daniel Ward also signed other signature sheets under this Independence Party Designating Petition. This is not disputed by counsel for the BOARD OF ELECTIONS or for MARJORY H. JAEGER. This Court agrees those five (5) signatures located elsewhere are valid.
Cross-Petitioner, THOMAS W. PECORARO testified as to seven (7) additional signatures on his Independence Designating Petition sheets. Five (5) of these signatures occurred before MR. PECORARO as witness. As to all seven (7), MR. PECORARO sets out, through examination of records, as being members of the Independence Party in the 27th Congressional District.
As to four (4) of the seven (7) signatures, pointed out by THOMAS W. PECORARO, the testimony of Ralph Mohr, Commissioner, BOARD OF ELECTIONS, was clear and concise in that they were not the individuals asserted by Cross-Petitioner. That is to say, for example, as to a Mr. Hartwick allegedly on page four (4), line nineteen (19) was clear that at that location on the petition sheet, was an individual by the name of Zajava. In another instance, at page six (6) line four (4) an individual with the last name of Sorjar. It was clear by Mr. Mohr's testimony and the exhibits before the Court, this individual was a different Sorjar, i.e. Haseena, not a member of the Independence Party. On page fourteen (14) line eight (8) a Paul E. Arnold signed the Petition not a Paul G. Arnold as submitted by Cross-Petitioner. Paul E. Arnold is a Democrat as opposed to Paul G. Arnold member of the Independence Party. On page fourteen (14), line fifteen (15) James M. Damon who is a Blank rather than the asserted James W. Damon, II a member of the Independence Party. The actions by the BOARD OF ELECTIONS as to these four (4) signatures is sustained.
As to the three (3) remaining number of the seven (7) signatures, asserted by THOMAS W PECORARO to be valid, it is the Court's finding, the burden of proof as to their validation has not been met and therefore, the actions by the BOARD OF ELECTIONS as to these three (3) signatures is sustained.
Based on the Court's findings herein, the invalidations of the Designated Petitions of THOMAS W. PECORARO for the public office of member of the of US House of Representative of Congress 27th District of the State of New York is sustained. Once more, Cross-Petitioner, THOMAS W. PECORARO needed three hundred seventy three (373) signatures to remain a candidate for the primary election, to be held with the Independence Party on September 12, 2000. Based on the evidence before this Court, the Cross-Petitioner has no more than three hundred fifty eight (358) valid signatures and therefore falls short of the required number, i.e. three hundred seventy three (373) necessary to maintain his place on the primary ballot.
It is therefore the Decision of this Court, the Cross-Petitioner, THOMAS W. PECORARO name be stricken from the Independence primary ballot in accordance with the findings of the BOARD OF ELECTIONS.
DATED: August 16, 2000
HON. JOHN A. MICHALEK
Supreme Court Justice