Hikind Conservative Party

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posted:: 8/10/2012
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At an lAS Term., Special Election_~art oftbe'.
.' -: Supreme Court of the State of New York,. ".
held in and for the County of Kings, at-the
, . Courthouse, atCivic'Center,Brooklyn.. .'
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. .1" New York, on the 9th day of August 2Gi2.
.- PRESENT:':

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,.' Doy HilaND
Respondent- Candidate,
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.and . . .
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J BOARD'C?F ELI3CTIONS IN THE CITY OF NBW YORK
, Respondent
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The fonowin~ J)Q.pers umbered 1 to 4 read herein:
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. PaDers Numbered
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Notice of MctioIYOrder to Show Cause!
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PetitionlCro$s Motion and .
Affida;vits (Affinnations) ;Annexed
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. Opposi~gAffidavits(AffirtnationsJ
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Reply AffIdavits (Affirmations),
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Affidavit (Affirmation),
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Other Papers Bill of Particulars. Exhibits M '~ . ".' .

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TO: 913474622646 P.3/8

This matter was referred to a court appointed special referee to conduct a line by line

review of the de novo specifications of objections to the designating petition submitted by

petitioner.I The referee found that the candidate submitted 12 signatures to the Board of

Elections and that 10 valid signatures are required to be placed on the ballot for this position

(see Election Law §6:-136(2)). Petitioner asserted specific objections to three signatures

contained in the petition. The referee sustained two of the objections, and found that the

other objection was not as specified and ruled that said signature was valid. Accordingly,

the referee detennined that the candidate had 10 valid signatures, which was the requisite

number to be placed on th~ banot for this position.

On August 6-;'2012, the referee rendered her report to the court at which time

petitioner objected to the referee's ruling on sheet 1, line 4 of the petition. Petitioner raised

the foll.owingobjections to this signature before the referee: that the signamre was printed,

that it was illegible and that the signatory was registered at the wrong address. The referee

ruled th~t the signature was neither printed nor illegible and a search of the Board of

Elections database reveale4 that the signatory, Ephraim Joselit, was registered to vote at the

address set forth in the petition. In support of his opposition to the referee's ruling on this

signature,petitionerpresented the court with anaffidavit fromSara Applebaum, who attested

that she is the owner of the premises located at the address set forth as Mr.-Joselit's on the

IThe court notes that petitioner bad originally asserted aclahn offrauti as to one of the subscribing
witnesses which he orally withdraw before the referee. There were no tiuud claims asserted by petitioner as to any of
the other subscribins wimesses.

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AUGi-9-201205:18P FRCI'1: TO:913474622646

petition sheet. She further attests that Mr. Joselit bas not resided at that address for the last

three years and that only she and her family live there. Additionally, petitioner submitted a

record from the Department of Buildings indicatingthat Benzion Applebaum was the owner

of the premises and that it was a one-family dwelling. Respondent was unable to produce

Mr. Joselit to rebut this evidence. As sucb, based upon the evidence presented to this court,

the referee's ruling is reversed and Mr. Joselit's signature is invalidated

Respondentobjected to the referee's ruling as to sheet 2, line 4. The specific

. objections al1eged as to this signature were: that the signatory was not enrolled in the

Conservative Party and that the address set forth for the signatory was out of district. The

signatoryon that line was Daniel F. Harkins. After reviewingthe Board of Elections

database the referee ruled that Mr. Harkins was in fact enrolled in the Conservative party.

However, the address set forth on tbe petition for Mr. Harkins was outside of the 48th

Assembly District, thus the referee invalidated the signature. In opposition to the referee's

ruling, respondent submitted an affidavit from Mr. Harkins attesting that he signed the

petition sheet in question on July 7,2012 and that it was presented to him by David Ryan,

the subscribing witness to that petition sheet. Mr. Harkins further states that he did not fill

in his address on this petition sheet and only placed his signature on said sheet. It was

stipulat~d by the parties that the address was inserted by Mr. Ryan, the subscribing witness.

Respondent also submitted a copy of a petition sheet for another candidate which Mr.

Harkins had signed and bad personally inserted his address upon which demonstrates that Mr.

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AUG-9-2012 05:19P FROM: TO: 913474622646

Harkins does indeed reside in the 481hAssembly District. In addition, a certified copy of Mr.

Harkins b~ card was provided to the court demonstrating to the court's satisfaction that Mr.

Assembly District.
Harkins resides at an address located within the 4811I

However, petitioner argues that Mr. Harkin's signature should still be invalidated

pursuant to Election Law §6-130 which provides that n[t]hesheets of a designating petition

must set forth in every instance the name of the signer, his or her residence address, town or

city (except in the city of New York, the county) and the date when the signature is affixed

... n In support of this position, petitioner cites to Matter of DiSanzo v Addabbo, 76 AD3d

655 [2010]. However, the court fmds the facts of Matter ofDiSanzo are distinguishable from

the instant case inasmuch as DiSanzo involved the invalidation of signatures based upon the

failure to insert the date next to signatures. Petitioner a1so cites to Matter of Stoppenbach v

Sweeney, 98 NY2d 431 [2002] which involved the invalidation of certain signatures because

the signers fai1ed to set forth the town in which they resided. Petitioners argue that these

cases stand for the proposition that Election Law §6-130 must be strictly complied with as

it is a matter of prescribed content. However, the court notes that Election Law §6-134 (7)

a
provides that U[ ] signer need only place his signatureupon the petition, and need not himself

fill in the other required information. Accordingly, the court finds that the evidence
II

adduced at the bearing demonstrating that the incorrect 8ddr~sswas inserted by Mr. Ryan,

the subscribing witness, and not by Mr. Harkins, the signatory, along with the evidence

Assembly District
establishing that Mr. Harkins resides at an address located within the 48111

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AUG-9-2012 05:20P FROM: TO: 913474622646

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is sufficient to validate Mr. Harkins' signature (see Matter of Jaffee v Kelly, 32 AD3d 485, ,

485-486 [2006] [holding that the Supreme Court erred in determining that two signatures

were invalid where petitioner submitted affidavits :tram each of the voters in question stating

that "this is my valid signature" in the designatingpetitionD. As such, tbe court reverses the

referee's ruling and ~mdsthat Mr. Harkins' signature is valid.

Finally, the court reviewed the referee's ruling as to the objections to the signature on

sheet 3J line 2. The objections raised were that the signature was printed and illegible and

tbat the signatory was registered at the wrong address. The referee fOWldthat the signature

was not printed but was illegible and was unable to discern who the signatory on that line

was and thus was unable to validate that signature. The court requested the production of the

buff cards for all of the voters residing at 1240 44thStteet which was the address set forth in

the petition next to the signature at issue. The Supreme Court is authorized to make specific

findings as to the validity of signatures appearing on petitions (Matter of.l"JcNulty v McNab,

96 AD2d 921 [1983]). and may compare the signatures on petitions with those appearing on

the buff cards ( Maguire v Bennett. 152 Mise. 2d 265, 268 [1991]; Matter of Hall v

Heffernan, 185 Mise 742,744, affd269 App Div 953, affd295 NY 599 [1945]).

Of the six buff cards produced ,the court found that the signatures on five of the buff

cards failed to in any way approximate the signature on the petition sheet. The eourt found

that signature on the petition could have been that of ShimonTauber an enrolled member of

the Conservative Party residing at that address. The court notes that Mr. Tauber's buff card

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~UG-9-2012 05:21P FRCt1: TD:9!3474622646

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indicates S
an address of 1450 48111treet, however the Board of Elections provided the court

with a cenifled document indicating that on June 1,2009 the Board had processed a change

Street to 124044111
of address for Mr. Tauber from 154048111 Street in Brooklyn based upon

documentation received from the United States Postal Service?

Petitioner argued that the signature on the petition did not match the signature on Mr.

Tauber's buff card. In support of his contention that this was not Mr. Tauber's signature,

petitioner produced Mr. Robert Baier, a Certified Forensic Document Examiner. Mr. Baier

testified that he examined Mr. Tauber's signature on his original buff card on file at the

Board ofElectioIlS ~s well as the original petition sheet on file with the Board. He testified

that he used thirty power magnification to examine the signature specimens. Based upon his

analysis of the two signatures, Mr. Baier opined that the differences in the signatures

outweighed the similarities and opined that the signature appearing on the petition was not

placed there by Mr. Tauber. The court found Mr. Baierts testimony credible (see lv/atler of

Sayegh, 43 AD3d 481, 482
Harris v Duran, 76 AD3d 658,659 [2010]; Matter of Drace 11

[2007]). Respondent failed to can Mr. Tauber to testify to rebut the handwriting expert's

testimony. Accordingly, the court affmns the referee's ruling and the signature remains

invalidated.

2Election Law § 5-208 (1) provides, inpertil1ent part, that "[t]he board of elections shall transfer the
registration and enrollment of any voter for whom it receives a notice of change of address to another address in the
same county or city, or for any voter who casts a ballot in an affidavit ballot envelope which seta forth such a new
addreii. Such noticei MaU include, but 110t e limited to ... notice!;of change of address:ftam the UDited Smtes
b
Postal Smicc thz'Ougbthe National Change of Address System, any notices of a forwarding address on mail sent to II
voter by the board of elections and returned by the poslal service, national or state voter registration fonns,
confirmation mailing response cards. . ."

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AUG-9-2B12 05:21P FRO'1: TO: 913474622646

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Based upon the foregoing, the court finds that the candidate bas 10 valid signatures

which is the requisite numberof signaturesneeded to be placed on the ballot for this

position. Accordingly, the petition seeking to declare invalid the petition purporting to

designate Dov Hikind as the Conservative Party candidate for the public office of Member

of the New York State Assembly from the 48111Assembly District in the Primary Election to

be held on September 13. 2012 is denied.

AND IT IS ORDERED that the respondent Board of Elections in the City of New

Yark shall place upon the ballot for the aforesaid Primary Electi~n the name of the Dov

Hikind on the Conservative Party ballot line.

ENTER FORTHWITH.