| Matter of Messina v Albany County Bd. of Elections |
| 2009 NY Slip Op 07478 [66 AD3d 1111] |
| October 21, 2009 |
| Appellate Division, Third Department |
| In the Matter of Samuel Messina, Respondent, v AlbanyCounty Board of Elections et al., Respondents, and John H. Cunningham et al.,Appellants. |
—[*1] Matthew J. Clyne, Democratic Elections Commissioner, Albany, appellant pro se. James E. Walsh, Schenectady, for Samuel Messina, respondent. Thomas J. Marcelle, Albany, for John Graziano, as Republican Elections Commissioner,respondent.
Per Curiam. Appeal from a judgment of the Supreme Court (O'Connor, J.), entered October8, 2009 in Albany County, which, among other things, granted petitioner's application, in aproceeding pursuant to Election Law §§ 16-102, 16-106 and 16-112, to declareinvalid certain absentee ballots cast in the Working Families Party primary election for the officeof Supervisor in the Town of Bethlehem, Albany County, held on September 15, 2009.
This proceeding involves a challenge to 11 absentee ballots cast in the Working FamiliesParty (hereinafter WFP) primary for Supervisor in the Town of Bethlehem, Albany County. InAugust 2009, 13 completed voter registration forms and applications for absentee [*2]ballots were presented to respondent Albany County Board ofElections. All of the forms had been completed by newly registering voters who sought to enrollin the WFP. While the registration forms were being processed by respondent Matthew J. Clyne,the Democratic Elections Commissioner, employees notified respondent John Graziano, theRepublican Elections Commissioner, who began to raise questions. After a contentiousdiscussion with Clyne, Graziano agreed that the registration forms should be processed. Inaddition, Graziano agreed that the absentee ballots could be issued pursuant to the applications,but reserved his right to object to such issuance.
After 11 of the absentee ballots were cast, petitioner, a candidate in the WFP primary,objected to the opening, counting and canvassing of those ballots. He thereafter commenced thisproceeding, by order to show cause, pursuant to Election Law §§ 16-102, 16-106and 16-112, requesting that Supreme Court, among other things, oversee the canvassing of theabsentee, emergency and affidavit ballots cast in the primary election. The petition also allegedthat the absentee ballots were issued to voters who were not qualified to vote pursuant toElection Law § 8-303 because they failed to show proper identification. Supreme Courtconducted a hearing on October 1, 2009 at which petitioner, respondent John H. Cunningham(another candidate in the WFP primary), Clyne and Graziano all appeared. Minutes before thehearing commenced, Graziano served an answer upon the other parties which, for the first time,raised the argument that the applications for absentee ballots for the 11 voters should be declaredinvalid, ab initio, because of a material misrepresentation. Graziano alleged that, at the time thevoters completed their absentee ballot applications, they were required to certify that they wereregistered voters and, inasmuch as they filled out the applications contemporaneously with theirvoter registration forms, they could not have made such statement. During the hearing, petitionermoved to amend his petition to include this claim, over the objection of Cunningham and Clyne,which motion the court granted.
Supreme Court thereafter granted Cunningham's motion to dismiss as much of the petition asclaimed a violation of Election Law § 8-303, finding that the proper information wasincluded on the voters' registration forms and their identities were verified prior to the primaryelection. However, the court further found that, because the voter registration forms andcorresponding absentee ballot applications were affirmed on the same day, it was impossible forthe voters to have believed that, at the time they executed the applications, they were registeredto vote, and the applications therefore contained material misstatements of fact. As such, thecourt ruled that the applications were void ab initio and, consequently, the Board was withoutauthority to issue the ballots. Accordingly, the court held that the ballots were invalid and couldnot be opened, canvassed or counted. Cunningham and Clyne now appeal.
As a threshold issue, we reject Cunningham's assertion that Supreme Court erred in failing todismiss the petition for failure to join as necessary parties the voters whose ballots are beingchallenged. Contrary to his contention, Election Law § 16-108 (2) is inapplicable,inasmuch as petitioner has not challenged, in either the petition or during the hearing, theregistration of the voters but, instead, challenges the right of their absentee ballots to be counted.As this litigation compels us to examine the " 'legislatively mandated requirements of theElection Law,' " we find that the requested relief can be granted without joining the voters andthat they will not be inequitably affected by the outcome (Matter of Harper v New York State Bd. of Elections, 34 AD3d919, 920 [2006], quoting Matter of Breslin v Conners, 10 AD3d 471, 473-474[2004], lv denied 3 NY3d 603 [2004]; see CPLR 1001 [a]; Matter of Seamanv Bird, 176 AD2d 1061, 1062 [1991]; Matter of Michaels v New York State Bd. ofElections, 154 AD2d [*3]873, 873 [1989]; see also Matter of O'Brien v SenecaCounty Bd. of Elections, 22 AD3d 1036, 1036 [2005]; see e.g. Matter of Panio v Sunderland,4 NY3d 123 [2005]).
We do find merit, however, in the contention of Cunningham and Clyne that Supreme Courterred in allowing Graziano to raise the argument that the absentee ballot applications were voidab initio, and in allowing petitioner to amend his petition to assert that claim. It is imperative thata petition sufficiently particularize the claimed irregularities in order that the respondents are puton notice of the errors being asserted (see Matter of Krueger v Richards, 59 NY2d 680,682-683 [1983]; Matter of Fischer vSuffolk County Bd. of Elections, 55 AD3d 759, 760 [2008]; Matter of Jennings v Board of Elections ofCity of N.Y., 32 AD3d 486, 486-487 [2006], lvs denied 7 NY3d 707 [2006];Matter of Vasquez v Smith, 224 AD2d 822, 823-824 [1996]; compare Matter ofMaxwell v Hill, 225 AD2d 947, 948-949 [1996]; Matter of Mazza v Board of Electionsof County of Albany, 196 AD2d 679, 680 [1993]). It necessarily follows that an argumentthat is advanced for the first time during a hearing should not be considered, as it is manifestlyunfair to suddenly confront a party and deprive it of its full statutory opportunity to meet theproof of its opponent (see Matter of Krueger v Richards, 59 NY2d at 682-683;Matter of Suarez v Sadowski, 48 NY2d 620, 621 [1979]).
Here, the petition merely stated that the absentee ballots should not have been issued becausethe identity requirements of Election Law § 8-303 had not been complied with andincluded generalized claims, such as that the Board "may be unable to determine the validity ofthe individual ballots." The specific allegation that the applications were void ab initio was firstadvanced, as acknowledged by both Supreme Court and Graziano, in Graziano's answer, whichwas untimely served on respondents just minutes before the commencement of thehearing.[FN*]Only after Graziano advanced this argument during the hearing did petitioner adopt the argumentand seek to amend his petition. Notably, the issue was not addressed in either Cunningham's orClyne's individual answers, which only addressed petitioner's challenge to the verification of thenew registrants' identification. As such, we find that the petition did not sufficiently putrespondents on notice that this argument was being advanced and, therefore, the court erred inallowing the issue to be raised for the first time during the hearing and ruling on its merits(see Matter of Krueger v Richards, 59 NY2d at 682-683; Matter of Fischer v SuffolkCounty Bd. of Elections, 55 AD3d at 760; Matter of Jennings v Board of Elections ofCity of N.Y., 32 AD3d at 486-487).
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, and petition dismissed.
Footnote *: Notably, Graziano, havingfailed to avail himself of the statutory procedure to challenge the issuance of the absentee ballots(see Election Law § 8-402), cannot challenge the applications after the ballotshave been cast (see Matter of Gross vAlbany County Bd. of Elections, 10 AD3d 476, 479 [2004], affd 3 NY3d 251[2004]; Matter of Mondello v NassauCounty Bd. of Elections, 6 AD3d 18, 25-26 [2004]; Matter of Kolb v Casella,270 AD2d 964, 965 [2000], lv denied 94 NY2d 764 [2000]; Sheils v Flynn, 252App Div 238, 242-243 [1937], affd 275 NY 446 [1937]; Matter of St. John v Boardof Elections of County of Albany, 145 Misc 2d 324, 328-329 [1989]).