| Matter of Lehrer v Cavallo |
| 2007 NY Slip Op 06880 [43 AD3d 1059] |
| September 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Michael J. Lehrer et al.,Respondents, v Giulio Cavallo et al., Appellants, et al.,Respondents. |
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In a proceeding pursuant to Election Law article 16, inter alia, to invalidate the organizationalmeeting of the Westchester County Committee of the Independence Party held September 15,2006, and all actions taken by the Westchester County Committee of the Independence Party as aconsequence of the organizational meeting, to direct a new organizational meeting to be held,and to have a court-appointed monitor supervise the new organizational meeting, Giulio Cavallo,Dhyalma N. Vazquez, Mario Castaldo, and the Westchester County Committee of theIndependence Party appeal (1) from an order of the Supreme Court, Westchester County(Donovan, J.), entered December 4, 2006, which, inter alia, (a) granted the petitioner's motion forleave to amend the petition to include, in effect, a challenge to a meeting held on September 5,2006, at which certain Independence Party rules were amended, (b) granted the petition, (c)invalidated the organizational meeting held September 15, 2006, (d) Ordered that a neworganizational meeting be held, (e) ordered that the new organizational meeting be conductedunder the supervision of a court-appointed monitor and in accordance with the IndependenceParty rules as adopted in 2004, without the amendments made at the meeting held on September5, 2006, and (f) ordered that Giulio Cavallo, Dhyalma N. Vazquez, Mario Castaldo, and theWestchester County Committee of the Independence Party bear the cost of the court-appointedmonitor, and (2) an order of the same court dated December 21, 2006, which, inter alia,appointed Neal S. Comer, Esq., as monitor to supervise all aspects of the organizational meeting,set the monitor's fee at $350 per hour, and directed Giulio Cavallo, Dhyalma N. Vazquez, MarioCastaldo, and the Westchester County Committee of the Independence Party "to post $25,000against the monitor's fees and expenses," with such amount to be held in the monitor's escrowaccount.
Ordered that the orders are reversed, on the law and the facts, without costs or [*2]disbursements, the motion for leave to amend the petition is denied,the petition is denied, and the proceeding is dismissed.
On September 22, 2006 the petitioners Michael J. Lehrer, Shandra Sookdeo, and ShadiKhader, members of the Westchester County Committee of the Independence Party (hereinafterthe County Committee), commenced the instant proceeding pursuant to Election Law article 16and CPLR article 78, inter alia, to invalidate the County Committee's organizational meeting andelection of officers held September 15, 2006, and to seek a court-appointed monitor to superviseany newly held organizational meeting. Specifically, the petitioners alleged that Giulio Cavallo,Dhyalma Vazquez, and Mario Castaldo (hereinafter the individual appellants), were improperlyelected as officers of the County Committee since, inter alia, the organizational meeting was notproperly noticed and was fraught with other fraud and irregularities.
After the appellants' motion to dismiss on several grounds was denied, the Supreme Courtconducted a hearing. By order dated November 29, 2006, inter alia, it granted leave to amend thepleadings to include an additional challenge to a prior meeting held on September 5, 2006,invalidated the organizational meeting held September 15, 2006, and directed that a neworganizational meeting be held under the supervision of a court-appointed monitor. Among otherthings, the court found that the individual appellants failed to give proper notice of the September5 and September 15 meetings, and further found that the collection and counting of proxies wassuspicious, all of which constituted such irregularities rendering it impossible to determine whowas rightfully elected at the September 15, 2006, meeting. In a subsequent order, the court, interalia, appointed a monitor with directions to submit written rules and procedures for the conductof the organization meeting. The individual appellants and the County Committee appeal fromboth orders, and we reverse.
It is well settled that "internal issues arising within political parties are best resolved withinthe party organization itself and judicial involvement should only be undertaken as a last resort"(Matter of Bachmann v Coyne, 99 AD2d 742 [1984]; see Matter of Independence Party State Comm. of State of N.Y. v Berman,28 AD3d 556, 558 [2006]). "Judicial intervention is only warranted upon a clearshowing that a party or its leaders have violated th[e] [Election Law] or the party's own rulesadopted in accordance with law, or otherwise violating the rights of party members or theelectorate" (Harding v Harrington, 127 Misc 2d 5, 5-6 [1984], affd 104 AD2d544 [1984]; see Matter of Bachmann v DeFronzo, 164 AD2d 926, 928 [1990]; seealso Matter of Kahler v McNab, 48 NY2d 625, 626 [1979]).
The Supreme Court improperly granted the petitioners' motion to amend the pleadings toinclude information regarding their challenge to the prior organizational meeting held onSeptember 5, 2006, at which time County Committee members adopted several amendments tothe Independence Party rules enacted in 2004, which amendments the Supreme Court utilized toinvalidate the September 15, 2006 meeting. The 10-day statute of limitations under which thepetitioners could challenge the September 5, 2006 meeting had lapsed by the time the instantproceeding was commenced (see Election Law § 16-102 [2]; Matter of Sayeghv Castaldo, 287 AD2d 639 [2001]; Matter of Flynn v Olma, 286 AD2d 568 [2001]).Thus, the rule changes adopted at the earlier meeting were in full force and effect at the time ofthe challenged September 15, 2006 meeting.
Where, as here, a case is tried without a jury, the Appellate Division's "authority is as broadas that of the trial court . . . and as to a bench trial it may render the judgment itfinds warranted by the facts" (Northern Westchester Professional Park Assoc. v Town ofBedford, 60 [*3]NY2d 492, 499 [1983]; see Domanova v State of New York,41 AD3d 633 [2007]). The petitioners failed to make a clear showing that the notice forand conduct of the September 15, 2006 organizational meeting violated the Election Law, orinvolved such fraud or irregularities as would render it impossible to determine who wasrightfully nominated or elected at the meeting (see Election Law § 16-102 [3];cf. Matter of Mills, 291 NY 98, 102-103 [1943]).
Aside from the fact that the mailing announcing the organizational meeting was reasonablycalculated to give timely notice to the County Committee members, the alleged irregularitiesadduced at the hearing were not "of such a nature as to establish the probability that the result ofthe election would be changed by a shift in, or an invalidation of, the questioned votes," therebyrequiring a new election (Matter of Lisa v Board of Elections of City of N.Y., 40 NY2d911, 912 [1976]; see Matter of Stevenson v Power, 27 NY2d 152, 154 [1970]; Matterof Ippolito v Power, 22 NY2d 594, 597-598 [1968]). Accordingly, the Supreme Courtimprovidently exercised its discretion in ordering a new organizational meeting and elections, aswell as appointing a monitor to supervise the organizational meeting.
In light of our determination, we need not reach the appellants' remaining contentions.Schmidt, J.P., Rivera, Krausman and Balkin, JJ., concur.