THE STATE OF NEW YORK

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK NEW YORK, NY 10013.3831
K
v
In the Matter of the Application of
Alan J. Gerson Tndex No. 110759/09
Petitioner,

For an Order pursuant to the Election law of the State

of New York, declaring valid petition designating
Petitioner as a Candidate for the Democratic REFEREE’S REPORT &
nomination for the Public Office of Council Member RECOMMENDATIONS
from theV City Council District, Borough of Manhattan.
City of New York and directing the said Board of $L%E S. LOWENSTEIN
Elections to print and place the name of Petitioner upon -.SPECW.L REFEREE
the ballot to be used at the forthcoming Primary
Election of the Democratic Party to be held. on
Septentbcr 15, 2009 1
AUG
-against

The Board of Elections in the City of New York,

Respondent
x
Appearances:

Petitioner by,
Kantor Davidoff Wolfe Mandelker Twomey & Gallanty, P.C. by,
LawTence A. Mandelker. Esq. and
Daniel S. Kokhba, Esq.
51 East 42
uid
Street
New York, NY 1001 7

Peter GJ.eason by,

Dunnington Bartholow & Miller, LLP by,
Raymond .1. Dowd, Esq.
1359 Broadway
New York, NY 10018

TO TIlE SUPREME COURT: NEW YORK COUNTY IA PART19

By decision and order of Justice Edward H. Lchner the undersigned was assigned as a Special

Referee to hear and report with recommendations with respect to the issues raised in the Order to Show

Cause of July 29, 2009 to validate the desiating petition filed by Alan 3. Gerson as a candidate for
the Democratic nomination for the Public Office of Council Member from tb.e 1 City Council District

in the Borough of Mantattan, City of New York.

In July of 2009 petitioner Alan I (3erson (hereinafter candidate) filed a designating petition for tbe

aforementioned elected office with respondent Board of Elections in the City of New York (hereinafter

Board of Elections). The petition contained a SUffiCCflt number of signatures to qualify the candidate

for a place upon the ballot As such the number of valid signatures within the thirteen volume petition

filed by th.e candidate was never brought into issue in this reference. No objections were ever filed as

against the candidate’s designating petition.

On July 2], 2009 the Board of Elections advised the candidate that the cover sbeet for his

designating petition was inval id because of a defect in Volume NY 0900031 2 wherein a number of

pages in the petition containedan incorrect address of the candidate, 1505 LaGuardia Place, New York,

NY 10012 which in turn did not match the candidate’s actual address of 505 LaGuardia Place, New

York. NY 10012. ‘Uh.e Board of Elections :ftirther informed the candidate that this defect must be cured

withi.n three days of the date of the letter by the filing of an amended cover sheet. A failure to timely

cure the defective cover sheet would result in the invalidation of the entire designating petition.

On .TuJy 22, 2009 the Board of Elections made a hither deteni,ination that certain hand made

corrections on a number of petition sheets in another petition volume. \‘olutne NY 0900242 wherein

the above noted address correction had been made in writing were questionable, inasmuch as the Board

of Ejections could not determine whether the modifications had been made prior to obtaining the

signatures on said petition sheets or subsequent thereto.

On July 24, 2009 the candidate filed an amended cover sheet wherein a statement was attached

expJaining that the incorrect address printed on certain sheets in petition Volume NY 0900312 was the

result of a printef s error and that said filing was not intended to promulgate ‘fraud or deception with

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regard to the candidate’s designating petition.

On July 24, 2009 a second amended cover sheet (hereinafter later cover sheet) was filed which

contained other data relative to the candidate’s designating petition. The amended later cover sheet set

forth that the candidate’s designating petition containedtwelve volumes. Petition Volume NY 0900312

was deleted from mention on the second amended cover sheet. The amended later cover sheet did

contain a reference to petition Volume NY0900242 as being part of the candidate’s petition.

On July 28, 2009 the Board of Elections deterñiined that the candidate’s petition was in..v•aJid as the

result of a defective cover sheet. A.t a hearing held on August 5, 2009 the Board of Elections ruled that

petitioner’s cover sheet was defective and that the candidate’s entire designating petition was thus

invalid. There has been no contention asserted by any party to this proceeding that if both petition

Volumes NY09003 12 and NYO900 242 wel-e to be excluded from the candidate’s designating petition

that the candidate would not have a sufficient number of valid signatures within the remainder of his

petition. so that he would he entitled to have his name placed upon the ballot as a candidate for the City

Council from the l. City Coun.ci.1 District in the Democratic Primary Election on September 15, 2009.

The Order to Show Cause in this proceeding was made returnable before Justice Edward H.

T..ehner on August 3, 2009. The parties appeared before Justice Lehner on Ausust 3, 2009. The court

referred to the undersigned to hear and report with recommendations the issue of whether the

candidate’s designating petition was suff5 ciently valid so that his name should be placed upon the ballot

for the September 15, 2009 Democratic Primary Election for the Public Office of Council Member

from the P’ City Council District of New York. Borough of Manhattan, City of New York.

On August 3, 2009 the parties appeared before the undersigned as denominated above, at Room

300 of Supreme Court New York County at 71 Thomas Street. A hearing was held and completed in

this reference on August 4. 2009. The complete transcription of this proceeding is filed together with

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 this report.

At the hearin.g tile undersigned received into evidence a number of documents (exhibits) The

exhibits are filed together with the instant report and recommendations of’ the undersigned.

Respondent Board of Elections did not appear at thc hearing on August 4, 2009, The undersigned

mindflul of the expedited court calendar applicable to Election Law matters proceeded immediately

upon the issue referenced for hearing by the court. The referenced issue was heard and same is reported

upon as indicated below.

HEARING

At the hearing each of the parties offered an opening statement. A document was then moved into

evidence by the candidate wherein it was set forth that the records of the Board of Elections

demonstrate that 1505 LaGuardia Place, in New York County is a non existent address.

Thereafter petitioner, candidate Alan Gerson was called as a witness for the petitioncr.

The witness initially testified that he is a member of the City Council in New York City. The

witness described the geographic boundaries of LaGuardia Place. The witness then offered testimony

asto an amended cover sheet filed withBoard of Elections relative to the witness’ designating petition.

The amended cover sheet specifically stated that 1505 LaGuardia Place in New York County was a non

existent address. The document bore a Board of Elections’ date stamp of July 24,2009 and requested

a withdrawal ofthe Board of Elections’ objection as to Vol.u.meNYO9003l2 ofthewitness’ petition.

Upon completion of the direct examination a cross exam ination of the witness took place.

In the context of cross examination testimony was adduced of th.e witness wherein he described the

circumstances surrounding the creation and tiling of the amended cover sheet. Th.e witness was farther

‘The parties were permitted in lieu of a summation to submit for the undersigned’s consideration a post hearing memorandum of law
by August 7. 2009. Each party timely submitted a post hearing memorandum which is filed together with the instant report of the
undersigned.

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queried, as to the circumstances of how he learned of the existence of problems with his petition.

The witness was additionally queried as to the manner in which the cover sheet issue was dealt with

by the witness’ canipaign The witness specified that he authorized Mr. Dudley Gaffin to file his

amended covet sheet. The sum and substance ofthe testimony adduced ofthe witness in this regard was

that his campaign filed two amended cover sheets with the Board of Elections. A later filed amended

cover sheet which deleted Volume NY090031. 2 from the designating petition, while the first amended

cover sheet filed by the campaign sought to clarify to the Board of Elections the nature of the incorrect

address that appeared within the context of the witness’ designating petition.

Upon completion of the cross examination the testimony in this proceeding was concluded.

FINDiNGS OF FACT /CONCLUSIONS OF LAW

In considering the issue of whether the defect in the candidate’s cover sheet was defective to the

point where same invalidated the candidate’s entire designating petition the undersigned has reviewed

the proof; testimony and evidence adduced at the hearing. Upon such review the undersigned sets forth

his findings as indicated below.

The candidate in this action initially filed a cover sheet wherein it was set forth that the candidate’s

petition consisted of thirteen volumes. There were two volumes within the petition which contained

petition sheets that had an incorrect address for the candidate printed thereon. They were identified

within the context of the hearing as Volume NY09003 12 and Volume NY 09000242.

The candidate filed two amended cover sheets in order to correct the petition’s defects that resulted

from the misprinted address. The first amended cover sheet sought to explain the nature ofthe incorrect

address and fUrther set forth that there was no intent by the candidate to commit any fraud. The second

amended cover sheet gave details relative to the candidate’s designating petition and deleted petition

Volume NY0900312 from the same.

 The flies of the Board. of Elections as set forth at 9 NYCRR 6215 set forth a number of items

which must appear upon a petition cover sheet. Pursuant to said rules a cover sheet must inter alia

include items such as the name and address of the candidate and the total number of volumes in the

petition.

Election Law §6-1 34(10) provides in pertinent part that the mles relative to designating petitions

shall be liberally construed and that there should be substantial compliance with said rules. The

essential premise of th.e statute is that enors in a petition which are not deemed, to have been intended

to create fraud or cothision. should be viewed in a context wherein it should be determined whether

same were intended to or could cause fraud or confusion in the petitioning process. The legislative

intent relative to this statute as amended in 1996 was to permit a serious candidate forpublie office the

opportunity to establish substantial statutory compliance with Election Law §6-134, rather than to

permit the invalidation of the candidates entire designating petition

.
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lEn the matter at hand the undersigned notes upon a review of the testimony, proof and evidence

adduced upon the hearing held before mc that the first amended cover sheet filed by the candidate on

July 24, 2009 contained insufficient information so as to be in substantial compliance with rules of the

Board of Elections as cited above. This amended cover sheet is therefor considered to be a nullity as

a matter of law and fact.

The undersigned ffirther notes that the second and later filed amended cover sheet did contain

sufficient information so that same could in fact be deemed to be an amended cover sheet in

compliance with the rules of the Board of Elections as set forth above aiid within the statutory

requirements set forth at Election Law §6-134(2). It is of some note that the Board of Elections did not

appear in this action to offer proof, testimony or evidence that would establish that the candidate could

Sce Legislature Memoranda, Memorandum in Support, New York Stste Senate Chapter 709 Laws of t996.
McKinney’s 1996 Session Uws of New York.

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not file the later cover sheet on July 24, 2009. The undersigned therefor finds that the later cover sheet

was timely filed within the three day time period that was allotted, for the filing of an amended cover

sheet. It is thither noi’ed that the Board of Elections presented no proof, testimony or evidence to

establish that the later cover sheet was in fact filed with an intent to create confusion or promulgate a

fraud upon the public or the Board of Elections.

As such th.e undersigned finds that later flied amended cover sheet as filed on July 24, 2009 was

in fact the amended cover sheet relative to the candidate’s petition. The undersigned therefore finds

that Volume NY09003 12 of said petition was no longer part of the candidate’s petition upon the filing

of the amended cover sheet on July 24, 2009. The undersigned.thus determines that the petition sheets

contained in Volume NY09003 12 and the signatures contained thereon are not part of the candidate’s

designating petition.

What remains for consideration is whether the seven petition sheets contained in Volume

NY0900342 of the candidate’s designating petition wherein the candidat&s address is rnisprinted and

which contains alternations which amended the address to the candidate’s correct address and which

volume was included in the later amended cover sheet constituted a sufficient defect in said amended

cover sheet so as to render invalid the candidate’s entire designating petition.

In consideration of the foregoing it is once again noted that the issue of whether the remaining

twelve volumes of the candidate’s petition contained sufficient valid signatures so as to allow the

candidate’s nomination to go forward was never placed into issue. Indeed there was no argument

offered at the hearing to establish that were petition Volume NY0900342 to be excluded in. its entirety

from the remainder of the candidate’s designating petition that the candidate would still not have

enough valid signatures to permit the candidacy to go forward.

The entire argument seeking to void the candidate’s designating petition appears to rest upon the

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Board of Elections determination that the original cover sheet or the amended cover sheet if same was

achially deemed to be accepted. by the Board of Elections was so violative of ti-ic rules of the Board of

Elections so that the candidate’s entire petition should he voided.

The undersigned upon due examination of the proof, testimony and evidence adduced at the hearing

finds that to the extent that enors exist in the candidate’s address on seven petition sheets within

Volume NY0900342 that same is in fact an error without substance.

It has been held as a matter of law that where there is an innocent and inconsequential violation

(error) of the rules set out at Election Law §6-134 with respect to a petition cover sheet such that it is

clear that tlj.e candidate has nothing to gain from the violation and where the violation is such that there

is no potential for fraud or prejudiec, same will not be a basis for the invalidation of an entire

designating petition [Fromson v. Lefever 112 Ad2d 1064 (2 Dept. 1985) affirmed at 65 NY2d 946

(19S5)j.

In the matter at hand, as previously stated, the proof. testimony and evidence adduced at the hearing

in this reference more than amply establishes that of the twelve petition volumes that remained of the

original thirteen volumes filed by the candidate with the Board of Elections same contained sufficient

valid signatures so that the candidate’s designating petition was in compliance with the numerical

requirements relative to the same. In addition even ifpetitiou Volume NY0900342 were excluded from

the candidste’s designating petition there would yet be sufficient signatures within the designating

petition to validate the candidate’s designating petition. Moreover there is nothing in the record of this

reference that would establish that the error in the seven pages wherein the candidate’s address was

misprinted in petition Volum.e NY0900342 was such that the candidate stood to gain any benefit

therefrom or that this error was intended to cause some type of fraud, conflisiot or prejudice to the

nomination process. As such to the extent that the foregoing resulted in an error in the later amended

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 cover sheet flied on July 24. 2009, said error is determined by the undersigned to be an error without

substance.

The undersigned therefore detent ines that the candidate’s later amended cover sheet as submitted

on July 24,2009 withrespectto the desiating petition at issue herein is in fact a sufficiently valid and

appropriate cover sheetfor said nominating petitionwirhin the meaning of Election Law §6-134(2). The

undersigned further determines that the candidate’s nominating petition is otherwise valid in that it

contains a sufficient number of signatures for a valid designating petition for the Public Office of City

Council and that there is no permeation of fraud therein

.
1

Accordingly the undersigned determines that respondent Board of Elections was in error as a matter

of law and fact when it determined to invalidate the designating petition. of th.e candidate in this

reference.

RECOMMENDATIONS

The undersigned having conducted th.e above noted proceeding an.d having found that respondent

Board of Elections was in error when it invalidated the nominating petition of the candidate

i-ecommends that upon confirmation of the in.stan.t report that the court issue an order directing the

Board of Elections to validate the designating petition of the candidate and place the candidate on the

ballot as a candidate in the primary election of September 15, 2009, for the Democratic nomination for
•M
1
the Public Office of Council Member from the City Council Disirict, Borough of Manhattan, City

of New York.

The parties if so advised shall contact the Clerk of IA Part 19 [(646)386- 3277] for the purpose of

calendering a motion to confirm/vacate the report and recommendations of the undersigned.

The parties are furthermore advised that final day that Election Law matters will be considered

iSce thc undersigned’s report n the reference heiring index #110(588/09.

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in the Appellate Division is August 18, 2009.

This constitutes the report and recommendations of the Special Referee.

Respectfully submitted,

LESLIE S. LOWENSTEW4
SPECIALREFERE -;

Da
Leslie S. Lowenstein
Special Referee

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