In the Matter of Penny Mintz,, Appellant,v.The Board of Elections in the City of New York, Respondent, Rachel Lavine, Intervenor-Respondent.BriefN.Y.August 29, 2018REPRODUCED ON RECYCLED PAPER New York County Clerk's To be argued by Index No. 157145/2018 Stephen Kitzinger (15 Minutes) NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT In the Matter of the Application of PENNY MINTZ, Petitioner/Candidate-Appellant, For an Order Pursuant to Sections 16-100, 16-102, and 16-116, of the Election Law, Declaring Valid the Petition Designating Penny Mintz Candidate for the Public Office of Female Member of the Democratic State Committee for the 66th Assembly, New York County, New York, in the Democratic Party Primary Election to be held September 13, 2018, and to Order Respondent Board of Elections of the City of New York to Print and Place the Name of Candidate Upon the Official Ballots of Such Primary Election, -against- BOARD OF ELECTIONS IN THE CITY OF NEW YORK; Respondent-Respondent and RACHEL LAVINE, Intervenor-Respondent. RESPONDENTS' BRIEF ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Appellant- Respondent, 100 Church Street, 2-126 New York, New York 10007 (212) 356-2087 skitzing@law.nyc.gov Stephen Kitzinger, Of Counsel. August 20, 2018 TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................... ii PRELIMINARY STATEMENT.......................................... 1 QUESTIONS PRESENTED............................................ 3 STATEMENT OF FACTS............................................. 4 ORDER AND JUDGMENT OF SUPREME COURT............................ 6 ARGUMENT....................................................... 7 POINT I.............................................. 7 SUPREME COURT ERRED WHEN IT DETERMINED THAT IT HAD JURISDICTION.....................................7 POINT II............................................ 10 SUPREME COURT ERRED IN FAILING TO TAKE EVIDENCE, CONSIDER, AND DETERMINE WHETHER OR NOT THE VERIFICATION WAS FRAUDULENT.....................10 POINT III........................................... 11 SUPREME COURT CORRECTLY DETERMINED THAT THE PETITION WAS DEFECTIVE IN THAT IT DID NOT PROPERLY SPECIFY THE PARTY POSITION TO WHICH PETITIONER SOUGH ELECTION.......................11 POINT IV............................................ 16 SUPREME COURT PROPERLY DECLINED TO CONSIDER THE CLAIMS THAT PETITIONER SOUGHT TO BELATEDLY ASSERT IN THE AMENDED PETITION..................16 CONCLUSION......................................21 PRINTING SPECIFICATIONS STATEMENT............................. 22 ii TABLE OF AUTHORITIES Page(s) Cases Bliss v. Nobles, 297 A.D.2d 457 (3rd Dep’t 2002) .............................13 Bosco v. Smith, 104 A.D.2d 462 (2nd Dep’t 1984) aff’d 63 N.Y.2d 698 (1984) ......................................................11 Carusone v. Varney, 227 A.D. 326 aff’d 301 N.Y. 669 (1950) ......................12 Dotson v. NYC Bd. of Elections, 2001 N.Y. Misc. LEXIS 594 (S.Ct. N.Y. Cty. 2001) ............12 Dunlea v. N.Y.S. Bd. of Elec., 275 A.D.2d 589 (3rd Dep’t 2000) .............................12 Escoffery-Bey v. New York City Bd. of Elections, 65 A.D.2d 480 (1st Dep’t 2009) ..............................16 Franco v. Velez, 112 A.D.2d 875 (1st Dep’t 1985) .............................11 Matter of Goodman v. Hayduk, 45 N.Y.2d 804 (1978) .........................................7 Harden v. Board of Elections, 74 N.Y.2d 796 (1989) ........................................20 Matter of Harder v Kuhn, 153 A.D.3d 1119 (3rd Dep’t 2017) ............................11 Hutson v. Bass, 54 N.Y.2d 772 (1981) ........................................11 Ighile v. Board of Elec. in the City of N.Y., 66 A.D.3d 899 (2nd Dep’t 2009) ..............................12 Lansner v. Bd. of Elec., 143 A.D.2d 236 (2nd Dep’t 1988) .............................12 Luthmann v Gulino, 131 A.D.3d 636 (2nd Dep’t 2015) .............................20 Messina v. Albany County Bd. of Elections, 66 A.D.3d 1111 (3rd Dep’t 2009) .............................16 iii Nagubandi v. Polentz, 131 A.D.3d 639 (2nd Dep’t 2015) .............................16 Niebauer v. Bd. of Elec. in the City of N.Y., 76 A.D3d 660, 660-61 (2nd Dep’t 2010) ........................7 Pidot v. Macedo, 141 A.D.3d 680 (2nd Dep’t 2016) ....................................................16, 17, 19 Sloan v. Kellner, 120 A.D.3d 895 (3rd Dep’t 2014) .............................17 Tenneriello v. Bd. of Elec., 63 N.Y.2d 700 (1984) .........................................7 Statutes CPLR 402.......................................................17 CPLR § 1001(a).................................................21 CPLR § 1012(b).............................................20, 21 CPLR R. 3021....................................................7 Election Law 6-154.............................................17 Election Law § 2-102(4).........................2, 11, 12, 18, 19 Election Law § 2-104(2)........................................12 Election Law § 2-120...........................................13 Election Law § 6-132(1).....................................2, 11 Election L. § 6-134........................................13, 14 Election Law § 6-154(2)........................................17 Election Law § 16-102..........................................17 Election Law § 16-116...........................................7 Election Law § 6-158(1).........................................4 Executive Law § 71.........................................20, 21 Other Authorities 9 N.Y.C.R.R. § 6215.6..........................................13 9 N.Y.C.R.R. § 6215.7..........................................18 iv 22 N.Y.C.R.R. § 202.5-b(e)...................................7, 8 1 In the Matter of the Application of PENNY MINTZ, Petitioner/Candidate-Appellant, For an Order Pursuant to Sections 16-100, 16-102, and 16-116, of the Election Law, Declaring Valid the Petition Designating Penny Mintz Candidate for the Public Office of Female Member of the Democratic State Committee for the 66th Assembly, New York County, New York, in the Democratic Party Primary Election to be held September 13, 2018, and to Order Respondent Board of Elections of the City of New York to Print and Place the Name of Candidate Upon the Official Ballots of Such Primary Election, -against- BOARD OF ELECTIONS IN THE CITY OF NEW YORK; Respondent-Respondent and RACHEL LAVINE, Intervenor-Respondent. APPELLANTS' BRIEF PRELIMINARY STATEMENT In this special proceeding, petitioner-appellant Phyllis “Penny” Mintz (“Mintz”) seeks an order declaring the designating petition purporting to designate her as a candidate for election to the party position of Member of the Democratic Party State Committee from the 66th Assembly District (the “Designating Petition”). The Democratic Party State Committee consists of, among others, a male and a female member elected 2 from each Assembly District in each county of this state. Mintz’s petition failed, in violation of N.Y. Election Law §§ 2- 102(4) and 6-132(1), to specify whether she was seeking election as the male or female member of the committee from the 66th Assembly District. Because the Designating Petition failed to properly identify the party position to which petitioner sought election, on August 1, 2018, the Board determined that it was invalid. Supreme Court, New York County (Edmead, J.S.C.), by order dated August 15, 2018, denied respondent’s motion to dismiss the complaint for lack of jurisdiction and then denied and dismissed the petition on the merits, concluding that the Designating Petition was fatally flawed. This appeal ensued. 3 QUESTIONS PRESENTED Did Supreme Court, New York County, err when it determined that the petition was properly verified in spite of the fact that it did not bear the signature of the petitioner? Did Supreme Court, New York County, err when it declined to determine whether or not the verification on the petition was fraudulent? Did Supreme Court, New York County, correctly determine that the petition was fatally defective because it failed to identify the party position to which petitioner seeks election? Did Supreme Court, New York County, correctly decline to consider claims raised in the Amended Petition that petitioner attempted to serve on August 15, 2018, in court and long after the statute of limitations had expired? 4 STATEMENT OF FACTS On February 27, 2018, the Board adopted its Designating Petition & Opportunity to Ballot Petition Rules for the 2018 Primary Elections. See Minutes of February 27, 2018, Board of Elections meeting, available at http://vote.nyc.ny.us/downloads/pdf/documents/boe/minutes/2018/0 22718meet.pdf (last visited August 16, 2018), pp. 2-3. The last date to file designating petitions for the September 13, 2018 Primary Election was July 12, 2018. Election Law, § 6-158(1). On or about July 12, 2018, the Designating Petition was timely filed with the Board of Elections. It was processed in the ordinary course by the Board’s staff.1 Thereafter, the failure to identify on the Designating Petition the specific party position - that is, whether it was the male or female position - sought by Mintz was noted by the Board. Once noted, the Board sent a notice to Mintz advising of the deficiency and providing the candidate with the opportunity to be heard at the Board’s hearing on August 1, 2018, as to why such deficiency did not warrant a determination of invalidity. On July 31, 2018, prior to the Board having determined that the Designating Petition was invalid but after the time 1 The Board acknowledges that its clerical staff erred in listing the Designating Petition as purporting to designate Mintz as a candidate for Female Member. The Board’s ledger and contest list each state that they are “Tentative and Subject to Change.” Only the Board itself is authorized to make determinations. 5 within which to commence a proceeding as of right, petitioner electronically filed2 the instant proceeding in Supreme Court, New York County, seeking an order determining that the Designating Petition was valid. On August 1, 2018, after the Board determined that the Designating Petition was invalid, petitioner sought an order to show cause to set this matter down for a hearing. On August 2, 2018, petitioner served the Order to Show Cause together with the petition on the Board, commencing the instant proceeding. The petition contained a verification that, rather than including the actual signatures of the affiant (here, the petitioner) and the notary (here, counsel for the petitioner), it merely contained a typed “/s/” in its place. The Verification, dated July 31, 2018, also purported to speak to portions of the petition relating to the Board’s determination of invalidity that occurred on August, 1, 2018, the day after the verification was allegedly signed. In addition, it is undisputed that on August 8, 2018, in court, Mintz executed a verification that had been previously notarized as of July 31, 2018. 2 Election cases are explicitly precluded from electronic filing pursuant to an order of the Chief Administrative Judge. Administrative Order 192/18. 6 ORDER AND JUDGMENT OF SUPREME COURT The Supreme Court, New York County (Edmead, J.S.C.) denied respondent’s motion to dismiss for lack of jurisdiction and the denied the petition finding that the Designating Petition did not properly set forth the title of the party position to which petitioner sought election. The instant appeal ensued. 7 ARGUMENT POINT I SUPREME COURT ERRED WHEN IT DETERMINED THAT IT HAD JURISDICTION. As set forth above and in Election Law § 16-116, a proceeding to validate a petition must be verified. N.Y. Election L. § 16-116; Tenneriello v. Bd. of Elec., 63 N.Y.2d 700, 701 (1984). The failure to have a properly verified petition is a jurisdictional defect mandating dismissal of the proceeding. N.Y. Election L. § 16-116; Matter of Goodman v. Hayduk, 45 N.Y.2d 804 (1978); Niebauer v. Bd. of Elec. in the City of N.Y., 76 A.D3d 660, 660-61 (2nd Dep’t 2010). The failure to have a properly verified petition may not be cured by an amendment. Niebauer, 76 A.D.3d at 660. Here, the verification does not contain a signature from the petitioner, only an “/s/” with her name printed beneath it. It cannot be disputed that a verification must be signed. (Verification is an affidavit. See N.Y. C.P.L.R. R. 3021). Under the Uniform Rules of the Trial Courts (the “Uniform Rules”), because there is no applicable exception, petitioner’s verification was required to have been completed with an actual signature, not merely by the use of an “/s/.” Rule 202.5-b(e) of the Uniform Rules provides that an image of a person’s actual signature must be utilized for electronic filing in all but certain circumstances, none of which are present here. 8 11. Specifically, Rule 202.5-b(e)(1) provides as follows: Signing of a document. An electronically filed document shall be considered to have been signed by, and shall be binding upon, the person identified as a signatory, if: (i) it bears the physical signature of such person and is scanned into an electronic format that reproduces such signature; or (ii) the signatory has electronically affixed the digital image of his or her signature to the document; or (iii) it is electronically filed under the User ID and password of that person; or (iv) in a tax certiorari action in which the parties have stipulated to this procedure, it is an initiating document that is electronically filed without the signature of the signatory in a form provided above in this subparagraph, provided that, prior to filing, the document is signed in full in hard copy (which hard copy must be preserved until the conclusion of all proceedings, including appeals, in the case in which it is filed); (v) in a small claims assessment review proceeding, it is a petition recorded by the NYSCEF site upon the filing of a text file as provided in subdivision (b)(1) of this section, provided that prior to filing, the document was signed in full in hard copy 9 (which hard copy must be preserved until the conclusion of all proceedings in the matter, including article 78 review and any appeals, and must be made available during the proceeding upon request of the respondent or the court); or (vi) it otherwise bears the electronic signature of the signatory in a format conforming to such standards and requirements as may hereafter be established by the Chief Administrator. Here, because no actual signature (scanned or otherwise) was ever filed as part and parcel of the Verification, the Verification is defective and invalid. In effect, the verification was nothing more than an unsigned document attached to the petition. As set forth above, the failure to timely commence an election proceeding through the use of a properly verified petition is a fatal defect depriving the Court of jurisdiction. Accordingly, Supreme Court erred when it determined that the signature was sufficient and it therefore had jurisdiction over petitioners’ claims. Supreme Court was required to dismiss the instant proceeding. 10 POINT II SUPREME COURT ERRED IN FAILING TO TAKE EVIDENCE, CONSIDER, AND DETERMINE WHETHER OR NOT THE VERIFICATION WAS FRAUDULENT. Respondent raised the issue as to whether or not the underlying verification was ever signed by petitioner on July 31, 2018. Petitioner’s counsel admitted that petitioner executed a back-dated verification in open court on August 8, 2018. The Court concluded that respondent failed to raise this issue in its original papers and therefore declined to consider it. Respondent could not have raised this issue in its original papers as they had already been filed at the time petitioner executed a back-dated verification. Supreme Court should have taken testimony on this issue to the extent that it concluded that where a verification with only an “/s/” was filed and counsel alleged that the original was in his possession, but not filed electronically, was sufficient to constitute a valid verification. 11 POINT III SUPREME COURT CORRECTLY DETERMINED THAT THE PETITION WAS DEFECTIVE IN THAT IT DID NOT PROPERLY SPECIFY THE PARTY POSITION TO WHICH PETITIONER SOUGH ELECTION. Supreme Court correctly determined that the Designating Petition was fatally defective in that it failed to specify that petitioner sought to be designated as a candidate for election as the female member. Election Law § 6-132(1) requires that the office or position for which designation is sought be clearly set forth on the face of the petition. Election Law § 2-102(4) requires that when a party adopts a rule that its state committee shall have equal representation between men and women, a designating petition must list the candidate by sex. In this instance, the New York State Democratic Committee has adopted such a rule in Article II, Section 1(c)(iii)(a) of its Bylaws (Exhibit 1 in the Tenzer Affirmation in Support of the Motion to Intervene). The Election Law mandates “strict compliance with statutory commands as to matters of prescribed content.” Hutson v. Bass, 54 N.Y.2d 772, 774 (1981) (citations omitted); see also Matter of Harder v Kuhn, 153 A.D.3d 1119, 1121 (3rd Dep’t 2017) and Franco v. Velez, 112 A.D.2d 875, 876-77 (1st Dep’t 1985). The position to which designation is sought is a matter of content, not form. Bosco v. Smith, 104 A.D.2d 462 (2nd Dep’t 1984) (“[F. Wilson] Smith and [Imogene] Mayer failed to 12 designate their respective sexes anywhere on the designating petitions. Thus, unlike the case of Matter of Goldblum v Power, 5 NY2d 749 (1958), this is not merely a matter of form, where the requisite information is contained in the designating petition. Rather, the necessary information is completely omitted. Consequently, the application to invalidate should have been granted.”) aff’d 63 N.Y.2d 698 (1984). Petitioner’s reliance on Carusone v. Varney, 227 A.D. 326 aff’d 301 N.Y. 669 (1950) is similarly misplaced. Varney relates to matters not of a “vital and mandatory nature.” Election Law § 2-102(4) explicitly makes the listing of gender mandatory. All of the other cases cited by petitioner similarly relate to technical defects that were matters of form, rather than prescribed content or cover sheets. Likewise, the Second Department in Lansner v. Bd. of Elec., concluded that the failure to identify the gender of the candidate for election to a party committee on the designating petition was a fatal defect. Lansner, 143 A.D.2d 236, 237 (2nd Dep’t 1988) (“Election Law § 2-104 (2) requires the designating petition to list the candidates separately by sexes”). There are two integral components of the office or position - the title of the office or position and the geographic territory from which election is sought. Ighile v. Board of Elec. in the City of N.Y., 66 A.D.3d 899, 900 (2nd Dep’t 2009); Dunlea v. N.Y.S. Bd. of Elec., 275 A.D.2d 589, 590 (3rd Dep’t 2000); Dotson v. NYC Bd. of Elections, 2001 N.Y. 13 Misc. LEXIS 594 (S.Ct. N.Y. Cty. 2001). Where there is more than one title of party position elected from the designated geographic territory, it is not “sufficiently informative” so as to preclude any possibility of confusion or fraud. Bliss v. Nobles, 297 A.D.2d 457, 458 (3rd Dep’t 2002). Here, there are two distinct State Committee Member positions up for election within the 66th Assembly District - Male and Female Member in the same election, the September 13, 2018 Primary Election. Likewise, both the New York State Democratic Committee State of Party Positions to be filled at the Primary Election (“Party Call”) and the New York County Democratic Party Party Call (filed pursuant to Election Law §§ 2-120(1) & (2) provides for the election of both a male and female member of the State Committee from, among others, the 66th Assembly District. Petitioner contends that the Designating Petition was sufficiently informative such so as to not be confusing. She further argues that 9 N.Y.C.R.R. § 6215.6 prescription for a liberal construction of the rules saves the Designating Petition. Again, petitioner is incorrect. First, § 6215.6 relates to the application of the State Board’s rules. The Designating Petition was determined to be invalid because it violates two separate provisions of the Election Law. The State Board Rules and their application are wholly irrelevant to this proceeding. Petitioner also seems to rely on N.Y. Election L. § 6-134(10) for a “liberal 14 construction” that would allow for substantial compliance and applied solely for the prevention of fraud. Petitioner, once again, is wrong. The provision relied upon relates only to the matters contained within section 6-134, not the entire election Law as petitioner suggests (“[t]he provisions of this section . . .”). Second, petitioner relies on an unsupported contention that the name “Penny” is, by definition, the name of a female, and therefore petitioner had to be seeking the designation for Female Member. Verified Petition, ¶ 15. Not only is such incorrect (e.g., Anfernee “Penny” Hardaway was an National Basketball Association “All Star” who played for, among other teams, the New York Knicks), such a rule is simply not workable. Petitioner scoffs at the notion that “Penny” Hardaway is a viable example of a man with the name “Penny” because it was a “nickname.” Ironically, petitioner’s given name is actually “Phyllis,” not “Penny.” In other words, she - like Mr. Hardaway - adopted the nickname Penny. As a result, she, like Mr. Hardaway, would not be included in either of the databases she relies upon to support her claim that Penny is “always” associated with a female. Petitioner calls for this Court to establish a rule that would vary in application based upon whether or not the name of the putative candidate is one that is “exclusively” associated with only a single gender. 15 Such a rule would necessarily result in the unfair application of the law based upon perceptions of a name. Casey, Riley, Jessie, Jackie. Peyton, Jody, Kerry and Pat are all common names used by both men and women. See https://fivethirtyeight.com/features/there-are-922-unisex-names- in-america-is-yours-one-of-them/ (last visited August 5, 2018) (analyzing Social Security Administration data). In fact, it is estimated that nearly one percent of all people in the United States have a unisex name. Application of the rule put forth by petitioner would necessitate different results for the same factual circumstances based solely on cultural identifiers. In sum, petitioner failed to properly include sufficient information on the petition to identify the position to which she sought election, and the rule she proposes is wholly unworkable and completely dependent upon cultural norms (that would likely work to the detriment of minority groups). 16 POINT IV SUPREME COURT PROPERLY DECLINED TO CONSIDER THE CLAIMS THAT PETITIONER SOUGHT TO BELATEDLY ASSERT IN THE AMENDED PETITION. Petitioner sought to raise new claims after the expiration of the statute of limitations through the late service of an amended petition on August 15, 2018. Supreme Court properly declined to consider such claims. Nonetheless, petitioner presents them (that the Board’s determination was ultra vires and that the invalidation of the Designating Petition violates the State Constitution) to this court as if they were made in the original petition. Petitioner also now seeks new and different relief in the form of an opportunity to ballot - that is, to create a contest where none currently exists so as to permit petitioner to mount a write-in campaign. Such a request is not permitted and should be rejected. A. The Amended Petition Was Untimely A party may not raise claims not asserted in the petition once the statute of limitations has expired and certainly not at the conclusion of the case. Escoffery-Bey v. New York City Bd. of Elections, 65 A.D.2d 480 (1st Dep’t 2009); Pidot v. Macedo, 141 A.D.3d 680, 681 (2nd Dep’t 2016); Messina v. Albany County Bd. of Elections, 66 A.D.3d 1111, 1114-15 (3rd Dep’t 2009); Nagubandi v. Polentz, 131 A.D.3d 639 (2nd Dep’t 2015) (“Supreme Court properly denied, in effect, Nagubandi's motion to amend her petition to validate the designating petition, as the motion was both untimely and improperly filed 17 without leave of court (see Election Law § 16-102; CPLR 402). Since Nagubandi did not provide timely notice that she intended to challenge the Board of Elections’ determinations to invalidate signatures, the court properly precluded her from doing so.”)(citations omitted). Likewise, a party may not seek relief not requested in the timely filed petition. Pidot, 141 A.D.3d at 681 (“The court also properly, in effect, dismissed Pidot's oral application to reschedule the primary election, as that relief was not requested in his petition, and, in fact, was not sought until the last day of the hearing.”). 1. The Board acted within its authority. Petitioner contends that the Board was without authority to adopt rules relating to the disposition of designating petitions where no objection was filed. Petitioner is incorrect. The language of Election Law § 6-154(2) is clear and unequivocal. It provides that each “board is hereby empowered to make rules in reference to the filing and disposition of such petition, certificate, objections, and specifications.” Petitioner contends that the provision relates solely to “objections.” If that were the case (which it is not), why would the statute speak to rules relating to the filing of petitions and certificates? In fact, Election Law 6- 154 relates to the filing and disposition of all documents relating to nominations and designations. Furthermore, and again contrary to petitioner’s claim, the Board is authorized to make determination. Sloan v. 18 Kellner, 120 A.D.3d 895 (3rd Dep’t 2014) (holding that board of elections was authorized to determine that designating petitions were invalid in the absence of an objection.” Relying on 9 N.Y.C.R.R. § 6215.7 for the proposition that the Board must complete its review of the petition within two business days of its filing, petitioner contends that the Board’s determination of invalidity was untimely. 9 N.Y.C.R.R. § 6215.7 sets a time limitation for the Board to review the petition for compliance with the “cover sheet and binding requirements of these regulations.” This review was for compliance with the Election Law, not the rules, and did not relate to defects concerning the cover sheet3 or binding. Because the review related to compliance with the Election Law, rather than the Rules of the State Board of Election, it was not subject to the two-day limit set forth in 9 N.Y.C.R.R. § 6215.7. The Designating Petition was only determined to be invalid at the properly noticed hearing on August 1, 2018, after petitioner had been afforded the opportunity to present evidence and/or argument as to why the Designating Petition was not deficient. 2. Section 2-102(4) does not violate the New York Constitution. Using broad and sweeping language, petitioner makes the claim that Election Law § 2-102(4) violates numerous 3 Petitioner raises a concern that the cover sheet, which did not get a notice of non-compliance, also failed to identify the party position by gender. The cover sheet was not defective as it matched the petition. 19 provisions of the State Constitution if it serves to invalidate the Designating Petition because it purportedly serves no purpose.4 Such is simply not the case. This argument, if it were at all meritorious (it is not), could be used against every provision that could possibly result in the invalidation of a designating petition. That is not what the State Constitution requires. Moreover, petitioner’s claim that that provision serves no purpose is without merit. Section 2-102(4) serves the compelling interest in identifying the party position to which the designee seeks election. In the absence of such provision, neither signatories to a designating petition nor a board of elections could ever be sure to which position a candidate was seeking election. Likewise, the contests for male and female member are required to be set apart on the ballot as well. It is clear that such a requirement is necessary to be imposed upon designees in order to ensure a fair and orderly electoral process. 3. There is no basis for requiring an opportunity to ballot. Petitioner now seeks an order from this Court directing the Board of Elections to create a contest where none currently exists through an opportunity to ballot. Such a remedy is appropriate only where it is timely requested, Pidot, 4 As set forth elsewhere herein, this claim was neither timely nor properly asserted in this summary proceeding. 20 141 A.D.3d at 681, and where the defects requiring disqualification of the petition were purely technical in nature and would leave the party without any candidate for office. Harden v. Board of Elections, 74 N.Y.2d 796, 797 (1989) (Hunting remedy “designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. It was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law.”). Here, the party has a candidate on the ballot and the relief was not timely requested. As such, it should be denied. B. Petitioner Failed to Give Notice to the Attorney General That It Was Challenging the Constitutionality of State Law. The Supreme Court correctly declined to consider petitioner’s belated constitutional claims for the failure to provide notice to the Attorney General that she was challenging the constitutionality of various provisions of the N.Y. Election Law. Petitioner makes no attempt to deny or excuse this failure. Accordingly, such claims were properly disregarded. Luthmann v Gulino, 131 A.D.3d 636, 637 (2nd Dep’t 2015) (dismissing Constitutional challenge where petitioner failed to give notice to Attorney General as required by N.Y. Executive Law § 71 and CPLR § 1012 (b)(1). 21 While the Attorney General is not a necessary party under the rules of joinder, see N.Y. CPLR § 1001(a), petitioner was required pursuant to a specific statute to be provided with notice and an opportunity to defend the constitutionality of statutes. New York CPLR § 1012(b) requires that the Attorney General be afforded the opportunity to intervene as of right in all cases where the constitutionality of a statute is being challenged. The court lacks discretion to excuse this failure. N.Y. Exec. L. § 71(3). Petitioner’s failure to provide such notice is fatal to this claim. CONCLUSION FOR ALL THE REASONS ABOVE, THE ORDER OF THE SUPREME COURT SHOULD BE REVERSED, WITH COSTS. Respectfully submitted, ZACHARY W. CARTER, Corporation Counsel of the City of New York, Attorney for Respondent-Respondent By: s/Stephen Kitzinger Stephen Kitzinger STEPHEN KITZINGER, Of Counsel. 22 PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 N.Y.C.R.R. § 600.10 that this brief was prepared on a computer, using Courier New 12, double-spaced. The entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10, contains 4,732 words.
