Espaillat OSC by CelesteKatz

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									                                                                            At an Ex Pcrte Part of the Supreme
                                                                            Court of the State of New York,
                                                                            County of Bronx, at the Coufihouse
                                                                            at 851 Grand Concourse. Bronx.
                                                                            New York on the
                                                                                              =5+l't dai   of-.lLrly,
 FIon   J ehn       (). Ca"ísr
              Justice of the Supreme Court

 COLINTY    OF-æH(            s¡uNr                                         Index No26atl9étzotz

 In the Matter of the Application of

 ADRIANO ESPAILLAT,                                                             ORDER TO SHOW
                                  P   et   it i o ne r - C   qndidat   e,





                                  Candi dates-Respondents

 For an Order, pursuant to Sections l6-102,16-106, l6-l12
 and 16-113 of the Election Law, directing the preservation
of all ballots cast in the Democratic party primary
Election held on lune 26,2012 lor the Democratic party
nomination for the position of Member of Congr.ess from
the 13th Congressional District in the.State of New york
(Bronx and New York Counties), and requesting the courl
to rule on the validity of the casting or canvassing, or
refirsal to cast or canvass, any ballot as set forth in
Election Law Section 16-106 (1); preserving petitioner's
rights under Article 9 of the Election Law and Section 16-
11.3 of the Elecfion Law, and related sections of law; and
pursuant to Section 16-102 of the Election Law,'declaring
Petitioner the lawfilly nominated candjdate in this
election; or, ordering a new primary election
          .          Upon the reading and fìling of'the annexed Verified Petition of Adriano Espaillat,
       J V L eo'6 líck íhq¡; t Esq -
cluly verífiedr(on July 3, 2012; upon a'il the ballots cast for the public offìce ol Member of the

U.S. I-:louse of Representatives from the 13tl'District of New York, in the primary election held

on the 26th clay of June, 2012, upon the original files relating thereto of the New York City Boarcl'

of Elections ("BOE,"), and upon all of the papers and proceedings herein, it is hereby:
                                                                                        E   lech'ø lvlaller s
                    ORDERED, that respondents show cause before this Cor-rfi at Part              to be
held atthe Courthouse        located at 851 Grand Concourse, Bronx, New York, Room 600           ontlr"

ilth day of July, 2012 aT 10:00 a,m. or as soon thereafter as counsel      can be heard, why an Order

shoulcl not be made and entered herein pursuantto Sections 16-102,16-106, 16-112 and 16-113

of the New York State Election Law:

                    A.      Determining the validity of all protested ballots cast and canvassed by the

Board of Elections, or ballots ruled invalid and not canvassed by said Board, under protest by the

candidates, for the public office of Member of the U.S. House of Representatjves for the           13th

Congressional District of New York, in the Democratic Party Primary election held on the 26Ih

day of June, 2012'. and/or

                    B.      Determining the accurate tally upon the recanvass andlor audit of the votes

cast utilizing electronic voting machines, special ballot marking devices, portable electronic

memory devices and/or ballot scanners (collectively "voting machines") fbr the pubiic office of

Membel of the U,S, I-Iouse of Representatives from the 13th Congressional District of New York,

by the voters of the Counties of Bronx and New York, in the Primary Election l-ield on the 26th

clay   of June,   20 72; andlor

           -        C.      Ordering the testing and inspection    of any voting   machines [hat have

rnalfir-ictioned or been tamperecl with, and making appropriate lindings of fact, and adjustments

to the canvass andlor re-canvass and/or audit as may be just and proper includìng, butnot limited

 to, the preservation of evidence; and/or

                D,      Ordering that all ballots cast in the Primary Eìection held on the     26th d,ay

of June, 2012 for the public office of Member of the U.S, I:louse of Representatives from the       13tI'

Congressional District, be completely re-canvassed by a voter verifiable audit (i.e. a recount by

hand of all papel ballots), with counsel and representatives of aìl parties having the right to be

present and interpose challenges; and/or

                E.      Declaring Petitioner the duly nominatecl candidate of thepemocratic Party

lor the public office of      Mernber    of the U.S.    House    of   Representatives   fiom the   13th

Congressional District of New York by virlue of having received the greatest number of valid

votes cast in the Democratic Party Primary Election held on the 26th d,ay of June, 2012             and,

directing the Board of Elections to certify Petitioner as such nominee; and/or

                F.     Directing the holding of a new prirnary election upon a finding that there

has been such fraud and irregularity as     to render impossible a detennination as to who was

rightfully nominated as the Democratic Parly nominee for the public ofñce of Member of the

U.S. Flouse of Representatives from the 13tl'Congressionaì District of New York at the June 26,

2012 printary election; and

               G.      Granting Petitioner such further relief as this Court deems just and proper.

               AND    IT IS FURTHER         ORDERBD, that Respondent Board of Elections              is

hereby ordered to produce in court or at the ofhces of the Board of Elections any ballots; any

removable electronic porlable memory dcvices used by or as part of'voting machines for the

recording of'votes ar-rd voting activity; any offìcial taily sheets and returns o1'canvass sheets; any

reporls pertaining to voting machine breakdowns or malfinctions, any inspectors notes, reports
 ¿utcl   or n.ìet'ì1os; ¿ìny voter registration records; any oLher records which are the sLrbject of issues         Lo

 bc tricd in this proceeding, and emy determinations of'Respondent lJoarcl of Elections upon any

 ptotests and challenges       to votets and/or ballots and/or applications therelbre, änd any other

papers or worksheets relating thereto; as may be necessary ancl proper to the                   trial of any issLre tn

 [his proceecling, as directecl by the court at anci for any hearirig or tlial in this proceeding; and it

is lurther

                      oRDEREI, thar      uny   uttl{"tffi"*iJr3"î;ñ                 in this proceecling be actmittecl

    the place of canvass or recanvass, without the neecl for production and friing of a poll

watcher's certificate, and shail be permitted to protest the canvassing, or reîusal to canvass, any

such ballot and or the validation, ot refusal to validate, any ballot envelope; and               it is funher

                      ORDERED, that,     if in the canvassing of absentee, military, special, federal or
affidavit ballot envelopes, a unanimous vote of the Board of Electìons bi-partisan                       canvassers

shall overrule a protest to a baliot envelope's validity, the Board of Elections is hereby directed

to make a copy of any such ballot and to reseal the copy in the ballot envelope (while canvassing

tlre ballot) in order to preserve the ballot for review by the collrt, as set forth in King tt, Smith,

308 A,D,2c1 556 (2d Dept. 2003'¡; O'Keefe v. Gentile,l Misc.3cl 15i (S. Ct,, Kings Co, 2003);

and it is fi.rrther

                   ORDBIìEI), that, if in the canvassing of an absentee, military, special, Ièderal or

afficlavit ballot cnvelope, a split vote of the Board of Elections bi-parrlisan canvassers on a protest

to the ballot envelope's validity, the ballot envelope shall be cast ancl                   oanvassed pnrsuant to

Election I-aw Section 9-209 (4) (d) with the procednre to prcserve said ballot in accordance with

Iiing v. Sntith, r'upra   and O'Keqfe v. (ientile,.\'Ltprq; ancl   it is f'urthcr
                      OR" Ð LP-?-D,     *\u[ s ho vLcl

                                                                   onS un+¡l F¿.lhe? or¿er                               oF
                   ORDERtrD, that suffrcient reason appearing therefore, leave is hereby granted      to
the patlies herein to submit on the date set for tlie hearing or the triaì o1'this matter additional

witnesses, exhibits, proofs ancl other evidence as may be necess¿rry; and it is further

                   ORDBRED, that in the event the canvass and/or recanvass and/or audrt of voting

machines and/or ballots continues beyond the return date specified hereln above, counsel lor the

parties hereto may acljor:rn same by stipulation, and counsel shall inf'orm the court by telephone

of same upon agreeing thereon, so that the canvass and/or recanvass and/or audit may             proceed

with all due speed, and

                  SUFFICIENT CAUSE APPBARING THBREFOR, it is furlher

                  ORDERED that service of a copy of this order together with the papers upon

which      it is granted be made   upon respondent Board of Elections in the City of New York by

lea    g them at the office of the Board o f Elections, located       al32 Broadway, New York, NY,    on
   before 5:00 p.m. on the   f     auy of Juiy ,2072', and   it is further

                  ORDERED that service of a copy of this order together with the papers upon

which it is granted be made on the other Respondents either

                  (1)    by personal delivery of the same to a Respondent-Candidate on or before

the 6tr' day of July,2012; or,

                  (2)    by personai delivery of the same to a person of suitable age and discretion
                                                                               óv T"   Lv b ,2,0    t7
at the residenc e of such Respondent-Candidate set f'orth in his/her desigáating pëtition¡ and by
      osing the same     in a securely     sealed and duly postpaid wrapper, addressecl      to    such

      ondent-Candidate at the address set forth in his or her designating petition and by depositing

same in a Post    Offlce branch or Post Office box, regularly maintained by tlic United States Postal

Service, on or before the 5th day of July,2072; or,
                 (3) by afÏxing the same to the outer door of the residence of such
                                                            by   sul.y 6fr,eot2
Responclent-Candidate set forth in his or her designating petition/çnü by enciosing the same in a

secttrely sealed and duly postpaid wrapper, addressed       to such Respondent-Candidate at the
address set f'orth   in his or her designating petition, and by depositing same in a Post    Office

branch of Post Office box, regularly rnaintained by the United States Postal Seruice, on or before

the 5th day of July,2012; or

addressed to a Respondent-Candidate at the address as set   forlh in his or her desi           tron

and by sendir.ig same by overnight, guaranteed next-day delivery b              nited States Postal

Ser-vice on   or before the 4th day of July, 2012; and           such method of service shall be

deemed good and sufficient service




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