| Matter of Kelley v Lynaugh |
| 2013 NY Slip Op 08524 [112 AD3d 862] |
| December 20, 2013 |
| Appellate Division, Second Department |
| In the Matter of Chris Ann Kelley,Petitioner, v Barbara Lynaugh et al., Respondents. (Proceeding No. 1.) In theMatter of Barbara Lynaugh, Petitioner, v Chris Ann Kelley et al., Respondents.(Proceeding No. 2.) In the Matter of Constance M. Kepert, Appellant-Respondent, vMichael A. Loguercio, Jr., Respondent-Appellant, et al., Respondents. (Proceeding No.3.) |
—[*1]
In three related proceedings pursuant to Election Law article 16 to preserve forjudicial review certain ballots cast in a general election for the public offices of, interalia, Councilmember, 4th Council District, Town of Brookhaven, held on November 5,2013, and to contest the casting and canvassing of those ballots or the refusal to cast andcanvass those ballots, Constance M. Kepert appeals, as limited by her brief, from somuch of a final order of the Supreme Court, Suffolk County (MacKenzie, J.), datedDecember 10, 2013, as, after a hearing, in effect, denied that branch of the petition inproceeding No. 3 which was to prohibit the casting and canvassing of the ballotdesignated as exhibit 2 in that proceeding and directed the Suffolk County Board ofElections to cast and canvass that ballot, and, in effect, denied those branches of thepetition which were to direct the casting and canvassing of ballots designated as exhibits3, 8, 15, 17, 19, 20, 21, 23, and 24 in that proceeding and directed the Suffolk CountyBoard of Elections not to cast and canvass those ballots, and Michael A. Loguercio, Jr.,cross-appeals, as limited by his notice of appeal and brief, from so much of the samefinal order as, in effect, granted those branches of the petition in proceeding No. 3 whichwere to direct the casting and canvassing of ballots designated as exhibits 6, 12, 13, 14,16, and 22 in that proceeding and directed the Suffolk County Board of Elections to castand canvass those ballots.
Ordered that the final order is modified, on the law and the facts, (1) by deleting theprovisions thereof, in effect, denying that branch of the petition in proceeding No. 3which was to prohibit the casting and canvassing of the absentee ballot designated asexhibit 2 in that proceeding and directing the Suffolk County Board of Elections to castand canvass that ballot, and substituting therefor a provision granting that branch of thepetition and directing the Suffolk County Board of Elections not to cast and canvass theabsentee ballot designated as exhibit 2, and (2) by deleting the provisions thereof, ineffect, denying those branches of the petition in proceeding No. [*2]3 which were to direct the casting and canvassing of theballots designated as exhibits 3, 15, 19, 20, 21, 23, and 24 and directing the SuffolkCounty Board of Elections not to cast and canvass those ballots, and substituting therefora provision granting those branches of the petition and directing the Suffolk CountyBoard of Elections to cast and canvass the ballots designated as exhibits 3, 15, 19, 20, 21,23, and 24; as so modified, the final order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
"A vote for any candidate or ballot measure shall not be rejected solely because thevoter failed to follow instructions for marking the ballot. . . . A mark isconsidered valid when it is clear that it represents the voter's choice and is the techniqueconsistently used by the voter to indicate his or her selections" (9 NYCRR 6210.13 [a][2], [3]; see Matter of Stewart vChautauqua County Bd. of Elections, 14 NY3d 139, 149 [2010]; Matter of Mondello v NassauCounty Bd. of Elections, 6 AD3d 18, 23-24 [2004]). Contrary to the contentionof Constance M. Kepert, the petitioner in proceeding No. 3, the Supreme Court did noterr in determining that the inconsistent and extraneous markings on the absentee ballotdesignated as exhibit 8 rendered it impossible to determine the voter's intent (see9 NYCRR 6210.13 [a] [2], [3]; Matter of Stewart v Chautauqua County Bd. ofElections, 14 NY3d at 149; cf. Matter of Mondello v Nassau County Bd. ofElections, 6 AD3d at 24). Thus, the court properly, in effect, denied that branch ofthe petition in proceeding No. 3 (hereinafter the petition) which was to direct the castingand canvassing of the absentee ballot designated as exhibit 8. Based on these sameprinciples, the court properly determined that the absentee ballots designated as exhibits12, 13, 14, and 22 were valid because the markings used by each voter clearly andconsistently indicated his or her choice on the ballot. Accordingly, the court properly, ineffect, granted those branches of the petition which were to direct the casting andcanvassing of the absentee ballots designated as exhibits 12, 13, 14, and 22.
However, the Supreme Court erred in determining that the absentee ballotsdesignated as exhibits 19, 20, 21, and 23, and the affidavit ballot designated as exhibit24, were invalid. Although the markings on these ballots did not strictly comport with theinstructions for marking the ballot, they clearly represented each voter's choice (seeMatter of Stewart v Chautauqua County Bd. of Elections, 14 NY3d at 149).
The Supreme Court also erred in invalidating the absentee ballot designated asexhibit 15. The voter utilized an absentee ballot because she suffered from a permanentdisability. Her absentee ballot envelope was initially signed by another voter, who livedat the same address and cast her own absentee ballot, which was designated here asexhibit 16, due to her own permanent disability. Thereafter, the erroneous signature onthe envelope containing the ballot designated as exhibit 15 was crossed out and theproper voter's signature was inscribed above it. We find that the proper voter's signatureon the absentee ballot envelope containing the ballot designated as exhibit 15corresponds to the signature found in her voter registration record. Under thesecircumstances, the court should have determined that the absentee ballot designated asexhibit 15 was valid (cf. Matterof DiPietro v New York State Bd. of Elections, 30 Misc 3d 449, 453 [2010]).However, the court properly determined that the absentee ballot designated as exhibit 16was valid.
The Supreme Court also erred in invalidating the special ballot designated as exhibit3. Contrary to the court's determination, the credible evidence adduced at the hearingconducted by the Supreme Court demonstrated that this special ballot was received bythe Suffolk County Board of Elections (hereinafter the Board of Elections) in a timelyfashion (see Election Law §§ 11-302, 9-209; cf. Matter of Coviello vKnapp, 91 AD3d 868, 869 [2012]). Consequently, the court should havegranted that branch of the petition which was to direct the casting and canvassing of thespecial ballot designated as exhibit 3.
Furthermore, the Supreme Court erred in determining that the absentee ballotdesignated as exhibit 2 was valid, since the signature on the envelope in which thatabsentee ballot was submitted did not correspond to the signature on the voter'sregistration poll record (see Election Law §§ 8-506 [1]; 9-104 [1];9-209 [2] [a] [i] [C]; Matter ofJohnson v Martins, 79 AD3d 913, 920-921 [2010], affd 15 NY3d 583[2010]; Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d at 25;Matter of Kolb v Casella, 270 AD2d 964 [2000]). Accordingly, the court shouldhave granted that branch of the [*3]petition which was toprohibit the casting and canvassing of the absentee ballot designated as exhibit 2.
Contrary to the contention of Michael A. Loguercio, Jr., a party to proceeding No. 3,the Supreme Court did not err in determining that the special ballot designated as exhibit6 was valid, and thereupon, in effect, granting that branch of the petition which was todirect the casting and canvassing of that ballot. "[A]n employee of the board of elections[or poll worker] may deliver to the . . . board of elections, at any timeduring the period in which an application for an absentee ballot may be so delivered. . . a written statement that he or she will be unable to appear at the pollingplace for such election district on the day of an election because his or her duties as anemployee of such board . . . require him or her to be elsewhere. The boardof elections shall provide such voter a special ballot not earlier than two weeks before theelection and not later than the close of the polls on election day. Such cast ballots may bedelivered to an office of such board of elections or to any board of inspectors not laterthan the close of the polls on election day" (Election Law § 11-302). This statute,by its terms, requires that a poll worker submit only one statement of the reason for his orher inability to vote in person at his or her polling place. Upon providing such statementto a board of elections, such poll worker is entitled to a special ballot. Election Law§ 11-302 does not require the poll worker to provide any subsequent statement oraffirmation of the reason that he or she requires a special ballot. In contrast to ElectionLaw §§ 7-122 and 8-400, which prescribe the form and content of absenteeballot applications and absentee ballots, Election Law § 11-302 does not prescribethe form of the "written statement" required to obtain a special ballot (see Matter of Panio vSunderland, 14 AD3d 627, 631 [2005], affd in part and mod in part on othergrounds, 4 NY3d 123 [2005]). Similarly, Election Law § 11-302 does notspecify the form of the special ballot itself or the envelope, if any, in which it is to bedelivered. Since the poll worker who cast the special ballot designated as exhibit 6complied with the requirements of Election Law § 11-302, the court properlydetermined that this ballot was valid.
Finally, the Supreme Court did not err in determining that the absentee ballotdesignated as exhibit 17 was invalid. With respect to this ballot, the witness to the voter'smark on the absentee ballot envelope testified at the hearing that she witnessed the votermake his mark. However, the court found that her testimony was not credible. We deferto the court's credibility determination in this instance, as it had the opportunity toobserve the demeanor of the witness (see Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492 [1983]), and we decline to disturb itsdetermination that this ballot was invalid.
Accordingly, we conclude that the Board of Elections should not cast or canvass theballots designated as exhibits 2, 8, and 17, and should cast and canvass the ballotsdesignated as exhibits 3, 6, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24. We note that noargument was raised on either the appeal or the cross appeal with respect to the proprietyof the Supreme Court's determination as to the validity of ballots designated as exhibits1, 5a, 5b, 7, 9, and 18. Dillon, J.P., Chambers, Lott and Cohen, JJ., concur.