SUPREME COURT OF THE STATE OF NEW YORK -
NEW YORK COUNTY
HON. PAUL WOOTEN
PRESENT:
PART_7_
Justice
In the Matter of the Application of
NEW YORK CITY COALITION FOR ACCOUNTABILITY
NOW, INC., VALERIE LUCZNIKOWSKA, AND DONAL
BUTTERFIELD,
Petitioners,
100814/14
INDEX NO.
-against-
MICHAEL MCSWEENEY, CITY CLERK OF THE CITY
OF NEW YORK,
Respondent,
For an order, pursuant to Article 16 of the Election Law
and Municipal Home Rule Law sections 24 and 37, to compel
Respondent to certify that the Petition conforms with all
requirements of law.
PAPERS
Notice of Motion/ Order to Show Cause Answering Affidavits Replying Affidavits
Cross-Motion:
L
Affidavits -
Exhibits ...
Exhibits (Memo)
_
(Reply Memo)
. Yes
On July 3,2014,
NUMBERED
_
[.~ No
petitioners filed a Referendum Petition (Petition), pursuant to the New
York State Municipal Home Rule Law (MHRL)
9 37 with
the respondent Michael McSweeney,
City Clerk of the City of New York (CCNY or respondent), seeking to amend the New York City
Charter by placing the proposed amended language for a referendum at the November 4, 2014
General Election. The Petition's proposed language seeks to amend to add a new subsection
645[e] to Chapter 26 of the New York City Charter by adding a local law, identified herein as the
"High-Rise Safety Initiative," (HRSI) that would mandate the New York City Department of
Buildings (the DOB) to investigate the collapse of any building that is at least twenty-stories
high. The proposed local law will cover any building collapse on or after September 11, 2001,
Page 1 of 7
other than and specifically excluding the former 1 and 2 World Trade Center towers, but would
require the investigation of the collapse of the former 7 World Trade Center building (see
Special Referee Report, p. 6-9). The Petition contained sixty volumes of more than 65,697
signatures and the MHRL
S 37(2)
requires that the Petition contain at least 30,000 valid
signatures.
On Monday, August 4, 2014, CCNY notified the New York City Council, as required by
MHRL
S 24,
and the petitioners, by letter dated August 4, 2014, that the CCNY rejected and
invalidated the Petition for the following reasons alleging that: (1) the Petition contains only
27,892 valid signatures among the 65,697 filed signatures when 30,000 valid signatures are
required by the MHRL to validate the Petition; (2) the Petition's proposed statutory language's
Financing Plan as required by MHRL
S 37(11)
is deficient, therefore rendering the Petition
invalid; (3) the Petition language is misleading and fails to provide the referendum voters of
adequate notice of the purpose and effect of the proposed amendment;
(4) the Petition
proposes what is in effect to be an impermissible advisory referendum; and (5) these Petition's
deficiencies cannot be solved by the enactment of the severability clause.
On August 7,2014, petitioners brought an Order to Show Cause (OSC) commencing
the herein matter, pursuant to MHRL
SS 24
and 37 and Election Law
S 16-116,
seeking an
immediate hearing to resolve any outstanding evidentiary issues and seeking to: (1) compel
respondent to certify that the Petition conforms with all the requirements of law and to place the
proposed statutory language for a referendum on the November 4, 2014 General Election
ballot; (2) annul and set aside the CCNY's August 4,2014 determination to invalidate the
Petition; (3) declare the Petition valid under MHRL
SS 24
and 37 and local and state law; (4)
award petitioners the attorneys' fees, costs and disbursements
proceeding.
in connection with this
The OSC was made returnable on August 14, 2014.
Page 2 of 7
This Court heard the OSC on August 14, 2014 on the record. The respondent filed with
the Court an "affirmation in opposition to the Order to Show Cause" repeating the respondent's
opposition to the Petition and also claiming that the petitioners' OSC is jurisdictionally
defective
because the pleading lacked sufficient specificity to give the respondent notice of the elements
of petitioners' claims. Upon the request and consent of the parties, in an Interim Order dated
August 14, 2014, this Court referred this Election Law matter to Special Referee Louis Crespo
(Special Referee Crespo), pursuant to CPLR
with recommendations
99 4317,
4403, to hear and report to this Court
as to petitioners' requested relief in the OSC as outlined above. The
Court also ordered the parties to order the Court Transcript by dividing the cost.1 Also, on
August 14, 2014, Special Referee Crespo held a conference in the matter and ordered an
internal discovery and inspection and set down a legal briefing scheduling on the additional
legal issues. At the request of Special Referee Crespo, after his conference with the parties, on
August 15, 2014, this Court also ordered the respondent to produce the original Petition filed
with the CCNY to the New York City Board of Elections (BOE) for the petitioners' review with
the original voter registration records.2
On September 15,2014, Special Referee Crespo issued his Report and
Recommendation.
Special Referee Crespo reported that after the petitioners had an
opportunity to review the original Petition against the original voter registration records, submit a
Bill of Particulars to the respondent, and the respondent conducted a line-by-line review of
petitioners' Bill of Particulars, the respondent conceded that in fact they had made an error to
Both parties failed to follow the Court's order and did not submit any Court transcripts.
The Court notes that the BOE is not a party to this proceeding. This Court ordered the
respondent to produce the original Petition to be reviewed by the petitioners at the Brooklyn Office of the
BOE. The parties were directed to work within the 9:00 a.m. to 5:00 p.m. public operation hours and use
whichever of the 10 general public voter record computer terminals, within the BOE discretion, that are
available to the general public.
Page 3 of 7
invalidate the Petition for insufficient valid signatures and indeed, the Petition contained more
than the required number of 30,000 valid signatures to be valid (see Special Referee Report, p.
61[3).
Thereafter, Special Referee Crespo addressed the respondent's remaining opposition.
Special Referee Crespo concluded that the proposed amendment fails to comply with
"all the requirements of the law" pursuant to MHRL. He concluded that the proposed language
is not misleading and does give voters adequate notice of its purpose and effect (id., p. 20-22)
and is not jurisdictionally
defective (id., p. 15-20). Nonetheless he concluded that the Petition is
defective as a matter of law, citing that it fails to provide a legitimate Financing Plan (id., p. 2232), amounts to what is in effect an advisory referendum (id., p. 32-36) and these defects
cannot be solved by the proposed severability clause (id., p. 36-37).
On September 19, 2014, the petitioners submitted a written application to reject those
portions of the Special Referee's Report and Recommendations
which were the basis to
invalidate the Petition, while the respondent submitted a written application to confirm in part
the Special Referee's Report, and reject in part, the portions of the Report which the Referee
found supported validation of the Petition.
DISCUSSION
A Referee's authority is derived from the order of reference (see CPLR 4311; Marshall
Pappas,
143 AD2d 979 [2d Dept 1998]; Lipton v Lipton, 128 Misc2d 528,531,
809 [2d Dept 1986]; see also Feder Corp. v Bozkurtian,
affd 119 AD2d
48 AD2d 701 [2d Dept 1985]). "It is
well settled that the report of a Special Referee shall be confirmed whenever the findings
contained therein are supported by the record and the Special Referee has clearly defined the
issues and resolved matters of credibility" (Steingart
2011], citing Nager v Panadis,
v Hoffman,
80 AD3d 444, 445 [1st Dept
238 AD2d 135, 135-136 [1st Dept 1997]; see also Melnitzky
Uribe, 33 AD 3d 373 [1st Dept 2006]; Kaplan
vEiny,
209 AD2d 248 [1st Dept 1994]; Namer
Page 4 of 7
v
v
v
152-54-56 W. 15th St. Realty Corp., 108 AD2d 705 [1st Dept 1985] Iv dismissed sub nom
Walker v Sant'Andrea, 72 NY2d 954 [1988]). 'The Special Referee is considered to be in the
best position to determine the issues presented" (Nager v Panadis, 238 AD2d at 136).
The Court finds that the Report and Recommendation
Crespo shall be confirmed in its entirety.
However, this Court chooses to weigh in, in support of
Special Referee Crespo's recommendation
deficient.
submitted by Special Referee
that the petitioners' OSC is on its face not legally
In addition to adopting the findings proffered by the Special Referee,
this Court finds
that Lacorte v Cytryn (109 AD3d 544, affd 21 NY3d 1022) does not apply to the facts herein.
The court in Lacorte noted that "a validating petition must specify the individual
determinations
of a board of elections that the candidate claims were erroneous, including the
signatures that the candidate claims were improperly invalidated" (Lacorte, 109 AD3d at 545,
citing Matter of Jennings v Board of Elections of City of N. Y., 32 AD3d 486 [2d Dept 2006]).
The Court held that Lacorte's validating petition was not "sufficiently particularized to give notice
of which determinations were claimed to be erroneous or which signatures Lacorte claimed
were improperly invalidated by the Rockland County Board of Elections" (Lacorte, 109 AD3d at
545). The Court of Appeals, relying on Matter of Krueger v Richards (59 NY2d 680 [1983]),
upheld this determination.
However, as this Court noted above, the facts of Lacorte are
distinguishable from the facts before the Court in this matter.
Specifically, in Lacorte the Court was addressing a proceeding seeking to validate the
petition designating Dagan Lacrote as a candidate in the primary election for the nomination of
a political party candidate for public office, which requires 2,000 signatures (see Election Law ~
6-136). These designating proceedings are exclusively mandated and controlled by the
Election Law and subject to an open administrative review, specific itemized reports and a
public hearing before the Board of Elections (Commissioners).
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At or prior to the public hearing,
the petitioners (or voters) are provided a numerically itemized and categorized report on the
sufficiency of the signatures, and may present evidence and testimony in support of their
position at the public hearing before the BOE makes a finding to validate or invalidate the
designating petition. That is clearly distinguishable from the case here, which is a Referendum
Petition, seeking a proposed amendment to the local City Charter, and primarily controlled by
the provision of MHRL. Unlike a designating petition, here with a Referendum Petition, the City
Clerk, not the BOE, conducts an administrative review that is not subject to a public review
before a determination regarding validation is made. The petitioner/voters
have absolutely no
redress or input into the review or administrative process before the City Clerk makes a finding
(MHRL 937) and the City Clerk's numerical analysis is not specific in its numerical findings,3 and
involves the validity of at least 30,000 signatures.
Moreover, in a designating petition, the candidate or voters have fourteen days, from the
last day to file designating petitions with the BOE, to file a legal proceeding to validate the
designating petition, and thereafter have a second opportunity to validate the designating
petition by filing within three days after the BOE's review and public hearing determination
Election Law
9
(see
16-102(2)). The Lacorte pleading standard applies only at the second
opportunity to validate the designating petition because the numerically specific BOE report and
the opportunity to get the BOE report before the public administrative hearing and to participate
at the public hearing provides the petitioner with additional information to place into the legal
application.
But, as here with a Referendum Petition, the petitioners/voters
have only one
opportunity to file a legal proceeding to validate the Referendum Petition and that is within five
days of the City Clerk's decision (see MHRL
91 [a)).
These petitioners/voters
have no prior
Compare the BOE Official Clerk Reports form which provides the precise numerical
number of valid and invalid signatures itemized within more than 24 signature categories and the August
4,2014 letter by the City Clerk, which doesn't specify the numerical categories.
Page 6 of 7
knowledge of the City Clerk's report, nor do they have the benefit of an open, public
administrative hearing process to gain information to review or contest the City Clerk decision.
Finally, this Court finds the respondent's position that the Lacorte standard applies here
as a basis to disqualify the Referendum Petition, prior to a hearing on the merits, to be irrational
and misplaced, particularly, when the result would be the voter disenfranchisement
of more
than 30,000 registered voters, without due process.
CONCLUSION
Accordingly, it is hereby,
ORDERED that petitioners' written application to reject, in part and confirm in part the
Report and Recommendation
of Special Referee Louis Crespo, dated September 15, 2014, is
denied and the Report and Recommendation
is confirmed in its entirety; and it is further,
ORDERED that consistent with the Report and Recommendation
of Special Referee
Louis Crespo the Court declares that the petitioners' Referendum Petition is invalid, void and
prohibited from the November 4,2014 election ballot; and it is further,
ORDERED that respondent's written application to reject, in part and confirm in part the
Report and Recommendation
of Special Referee Louis Crespo, dated September 15, 2014, is
denied and the Report and Recommendation
is confirmed in its entirety; and it is further,
ORDERED that the respondent shall serve a copy of this order with notice of entry on
the petitioners and the Clerk of the Court who is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
Dated: _,()_-
b_-_11-_
PAUL WOOTEN
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FINAL DISPOSITION
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REFERENCE
J.S.C.