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Fidler Petition

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									 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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In the Matter of the Application of

                    LEWIS FIDLER,                                                Index No.

                                                                                 VERIFIED PETITION
                                                               Petitioner,


                             -against-

                      DAVID STOROBIN

                                   and

  and THE BOARD OF ELECTIONS IN THE CITY OF
       NEW YORK,


                                                             Respondents,

For an Order, pursuant to Sections 16-106, 16-112 and 16-113
of the Election Law, directing the preservation of all ballots
cast in the Special Election held on March 20, 2012 for the
Public Office of State Senator from the 27th State Senate
District, in the County of Kings and invoking the court’s
jurisdiction to rule on the casting or canvassing, or refusal to
cast or canvass, any ballot as set forth in Election Law Section
116-106 (1); preserving Petitioner’s rights under Section
9-209 (4)(d) of the Election Law and Section 16-113 of the
Election Law, and related sections of law; declaring Petitioner
the lawfully elected candidate in this election.
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TO THE SUPREME COURT OF THE STATE OF NEW YORK:

        The Petitioner, by his attorney, respectfully shows:

      1. Petitioner Lewis Fidler was the candidate of the Democratic Party and of the

Independence Party for the public office of State Senator from the 27th Senate District in the

Special Election held on March 20, 2012.



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   2. The subject 27th State Senate District, State of New York consists of part of Kings County,

City and State of New York.

   3. Petitioner has standing under Sections 16-100, 16-102, 16-106, 16-112 and 16-113 to

bring this proceeding.

   4. Respondent David Storobin was the Republican Party and Conservative Party Candidate

for the public office of State Senator from the 27th Senate District in the Special Election held on

March 20, 2012.

     5. The Respondent Board of Elections in the City of New York is responsible for

canvassing the returns of the elections held within the County of Kings and certifying the results

of elections for the subject public office, acting in their capacity as the County Board of

Canvassers.

     6. Unofficial election night returns indicated an exceedingly close contest with those

returns indicating Respondent Storobin had received 118 more votes than Petitioner. The

subsequent recanvass of the voting machines and the canvassing of absentee, military, special

and affidavit ballots that is currently being conducted at the Brooklyn Borough Office of the

Respondent Board of Elections has resulted in a tie vote, as of 5:30 p.m. As of 5:30 p.m. last

night the number of uncounted protested ballots preserved for the court’s review in this

proceeding is 378. Remaining to be completed at the Board of Elections today is the review of all

absentee and affidavit ballots that the Board of Elections staff has determined are invalid and not

to be opened. In that part of the canvassing process, each ballot will be called out to afford either

candidate’s representatives an opportunity to protest the decision not to open the ballot, a

necessary pre-requisite for the jurisdiction of this court to review such Board determinations.




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JURISDICTION

     7. Subsequent to the March 20, 2012 balloting Respondent Storobin, together with party

chairman Craig Eaton commenced a proceeding in this court pursuant to Election Law Section

16-112 (Eaton, et ano. v. Fidler, et al., Index No. 700002/12). This court has previously issued

orders in that matter dealing with preservation of ballots during the Board of Elections’ re-

canvassing and canvassing of ballots. Petitioner requests that said orders remain in effect during

the pendency of the instant proceeding.

     8. The Eaton proceeding is merely one seeking protection and preservation of ballots. As

Section 16-112 sets forth explicitly, such a proceeding is brought “in view of a prospective

contest….”

     9. This proceeding is just such a “prospective contest” come to fruition. It is brought

pursuant to Election Law Section 16-106 (1) which grants jurisdiction to the court to rule on

contested ballots, either challenging the casting of such ballots or the refusal to cast such ballots.

It also invokes the court’s jurisdiction under Section 16-106 (4) for the correction of errors in the

Board of Elections’ canvass and grants the court the jurisdiction to order a re-canvass. The

statute sets forth a Statute of Limitations of 20 days from the election day (or the contested

action of the Board of Elections) for commencement of such a proceeding. Election Law §16-

106 (5).

     10. This petition is brought to continue to preserve the ballots, review irregular and

possibly fraudulent returns from voting machines, preserve the voting machine ballots and

determine where Petitioner may have been deprived of votes by malfunctioning or tampered with

voting machines, to protect the Petitioner’s rights to have this Court review all determinations of



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the Boards of Elections as is provided for in the Election Law, invoke the court’s jurisdiction to

rule on the validity of disputed ballots. allow for this Court to make adjustments in the canvass

as may be necessary, enjoin any certification of election results which would prejudice the rights

of the Petitioner, and to bar or prevent any procedural defect which might be asserted to defeat

this Court’s determinations.

      11. Moreover, as this is a Special Election, which is the equivalent of a General Election in

its finality, an injunction against issuance of a certificate of election might be the only remedy

available to the Petitioner so as to allow for the determination of the rightful claimant to the

subject public office without resort to an action quo warranto by the Attorney General.

“THREE DAY” SPLIT BALLOTS

      12. During canvassing of absentee, military, special and affidavit ballots on March 28,

March 29 and March 30, a number of ballots protested by the candidates’ representative each day

resulted in a “split vote” of the Board of Elections canvassers. That is, one of the bipartisan team

voted to uphold the validity of the ballot and the other ruled that is was invalid and not to be

counted.

      13. A special provision of the Election Law governs such a situation. Section 9-209 (4) (d)

provides, inter alia, “If the Board cannot agree as to the validity of the ballot it shall set the

ballot aside, unopened, for a period of three days at which time the ballot shall be opened and the

vote counted unless otherwise directed by an order of the court.” Thus, without a court order,

such protested ballots will be canvassed and the right of the candidates to have the validity of the

ballot ruled upon by the court will be forever lost.

      14. Absent the provision included in the annexed Order to Show Cause, the parties will

appear in court on April 2 to deal with the “split” ballots from March 28, 29, 30. Thereafter, as



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the canvass continues (and a likely full paper ballot re-canvass pursuant to the Board of Elections

Rule), the parties will be appearing before the court every day for rulings on “splits” from three

days before. Accordingly, in the interest of judicial economy, Petitioner has requested in the

annexed Order to Show Cause a provision ordering that all protested ballots upon which the

canvassers have split their vote be preserved, unopened, until the court has an opportunity to

review such ballots.

THE AUDIT PROCESS IN THIS ELECTION

     15. Section 9-211 of the Election Law sets forth the requirement that the Board of

Elections conduct a random audit of three percent of the voting machines after an election.

Pursuant to this Section, the New York State Board of Elections has promulgated regulations

governing this audit process and has mandated that the number of machines to be audited be

increased should the audit of 3% of he machines fail. Should the second stepped audit of

machines fail, a third step is mandated. Should that stepped audit produce failure, a full paper

ballot count is required.

     16. Upon information and belief, the staff report on the audit of 3% of the machines used in

the instant election indicated that not all ballots were properly recorded by each audited machine.

Notwithstanding this fact, the Board of Elections voted to not conduct the mandated second step

audit of machines.

     17. Petitioner therefore is invoking the court’s jurisdiction under Section 16-113 of the

Election Law to seek manual audit tallies and/or a full manual count of the ballots cast in this

election.




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     18. Of course, in the increasingly like event that the margin of votes between the candidates

is less than one-half of one percent, Petitioner requests the court to order the Board of Elections

to conduct a full canvass by hand of all votes cast in the election. (Petitioner has no doubt that

the Board will do so of its own accord pursuant to its own rules. However, at the stage the final

margin is computed, as well as the total number of votes cast, the election contest will be before

the court and a remitter to the Board may be necessary.)

ALLEGATIONS OF FRAUD WITH RESPECT TO ABSENTEE BALLOTS

     19. Petitioner has discovered in the course of the absentee ballot canvassing process that a

single individual, Alla Pometko, submitted 177 absentee ballot applications to the Board of

Elections.

     20. Most, if not all, of these applications were filled out in the same handwriting; they

stated that the voter was disabled and wished to be placed on the permanent absentee list; they

named Alla Pometko as their authorized agent to pick up their ballot from the Board of

Elections.

     21. In fact, it appears that Alla Pometko did receive 177 absentee ballots from the Board of

Elections and that she returned approximately 120 completed ballots to the Board.

     22. With respect to a number of the ballots returned to the Board of Elections by Alla

Pometko, the voter signed the absentee ballot envelope with a “mark” rather than a signature.

The witness to the mark was Alla Pometko.

     23. With respect to 16 of the absentee ballots returned to the Board of Elections by Alla

Pometko, the voters appeared in person at their polling places on election day and cast votes in

person on the machines. While their absentee ballots have been properly invalidated on this

account, this fact is evidence that Alla Pometko submitted false absentee ballot applications



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claiming permanent disability for such persons. Furthermore, the fact that the voters appeared in

person indicates that they were unaware that whatever they signed for Ms. Pometko was a ballot.

      24. Alla Pometko is not a registered voter. Campaign finance disclosure reports reveal that

Alla Pometko was paid as a “consultant” by the Storobin campaign.

      25. Upon information and belief, with respect to many of the absentee ballots submitted by

Alla Pometko: (i) the voter was unaware that he/she were applying for an absentee ballot; and/or

(ii) the voter was unaware that he/she was designating Alla Pometko as their agent to receive

their ballot; and/or (iii) the voter did not actually place the vote on the ballot or ever see the

ballot; and/or (iv) the voter did not actually sign or place his/her mark on the ballot envelope;

and/or (v) the vote was otherwise obtained by illegal means, including the fact that the voter was

falsely informed that he/she was eligible to cast an absentee ballot.

      26. Annexed hereto as Exhibit A is a list of the absentee ballot applications delivered to the

Board of Elections by Alla Pometko, for each of which a ballot was given to her by the Board of

Elections; a list of the absentee ballots she returned to the Board of Elections; a list of voters for

whom application for an absentee ballot based on disability was filed but who voted in person; a

list of absentee ballots where the voter’s signature is a mark witnessed by Alla Pometko.

      27. Petitioner is continuing his investigation into this matter and respectfully request leave

in the annexed Order to Show Cause to amend this Petition and to serve and file a Bill of

Particulars setting forth more specific allegations prior to a hearing on this matter.

RESERVATION OF FEDERAL CAUSE OF ACTION

      28. Approximately 200 absentee ballots that were returned to the Board of Elections were

invalidated by the Board for the reason that the voter had failed to signed the ballot envelope. In

some cases such ballots were received by the Board of Elections weeks before the election. Yet,



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the Board of Elections made no effort to contact such voters or to return the ballot to them for

signature.

     29. Upon information and belief, it is the practice of all Boards of Elections outside the

City of New York to return unsigned absentee ballots when they are received with sufficient time

remaining before election day for the voter to affix their signature and return them. The failure of

the Boards of Elections to afford an opportunity to voters to correct their ballot envelopes is a

violation of federal law for which State law affords no remedy. (NYS Constitution, Art. 2,

Section 7).

     30. Accordingly, Petitioner reserves his right to pursue a federal action in the United States

District Court for the Eastern District of New York under the federal Civil Rights and Voting

Rights laws and excludes such claims from this proceeding.

THE INSTANT PROCEEDING

     31. Petitioner requests leave to and reserves the right to submit further proofs by way of

witnesses, affidavits and evidence on the date set by this court for the trial and hearing of this

matter, and to amend these pleadings to reflect the facts of the conduct of the subject election

and/or facts adduced by the way of further investigation and/or a canvass of the ballots for the

election for the subject public office by the Board of Elections.

     32. In the course of the canvass of ballots there may be erroneous determinations made by

the Board of Elections, and such determinations may be sustained by a unanimous vote.

     33. Without Court intervention at this juncture such ballot envelope would be burst, the

ballot removed from the envelope and intermingled with others, depriving the Petitioner of the

ability to have the administrative determination of the Boards of Elections reviewed by the

Court.



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      34. No prior application for the relief requested herein has been made by the Petitioner to

any court, excepting, as specified herein, which order(s) do/does not necessarily protect your

Petitioner’s rights under the law.

      35. Petitioner has no other remedy at law other than that applied for herein. Leave is

respectfully requested and the Petitioners respectfully reserve the right to amend these pleadings

as needed.

      36. Leave is respectfully requested and Petitioners respectfully reserve their right to

produce evidence in support of this petition by way of testimony, affidavits, and other evidence

at the trial or hearing of this matter.

      37. Leave is respectfully requested and the Petitioners respectfully reserve the right to

make further applications to the Court for interim relief as may be needed.

              WHEREFORE, Petitioner respectfully requests the relief sought in the annexed

Order to Show Cause and such other and further relief as this Court may deem to be just and

proper in the premises.

Dated: March 30, 2012



                                               _____________________________

                                                 MARTIN E. CONNOR, ESQ.
                                                   61 Pierrepont Street, #71
                                                  Brooklyn, New York 11201
                                                  Telephone: (718) 875-1010
                                                  e-mail: sendem1@aol.com


                                                     FRANK V. CARONE, ESQ.
                                          ABRAMS. FENSTERMAN, FENSTERMAN, EISMAN,
                                          FORMATO, FERRARA & EINIGER, LLP
                                                   1 Metro Tech Center, 17th Floor
                                                     Brooklyn, New York 11201

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          Telephone: (718) 272-6040
          Facsimile: (347) 750-8344

   ANTHONY J. GENOVESI, JR., ESQ.
BORCHERT, GENOVESI & LaSPINA, P.C.
    19-02 Whitestone Expressway
     Whitestone, New York 11357
       Telephone: (718) 767-3333
       Facsimile: (718) 767-3309
     e-mail: agenovesi@bgllpc.com




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                                       VERIFICATION


STATE OF NEW YORK)
                 ) ss.:
COUNTY OF KINGS )


       I, Lewis Fidler, being duly sworn, depose and say, that the deponent is the Petitioner in the

within proceeding; that deponent has read the foregoing Petition and knows the contents thereof;

that the same is true to deponents own knowledge, except as to the matters therein stated to be

alleged on information and belief and that as to those matters deponent he believes them to be true.



                                                      ______________________________

                                                              LEWIS FIDLER

Sworn to before me,
this 30th day of March, 2012.

_____________________________
      NOTARY PUBLIC




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