court ruling: leber v. rasmussen, et. al
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8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.
http://slidepdf.com/reader/full/court-ruling-leber-v-rasmussen-et-al 1/6
STATE OF NEW YORK
SUPREME
COURT ULSTER
COUNTY
PHILLP
LEBER,
TERRIE
ROSENBLUM,
NANCY E.K.
SCHAEF,
Petitioners-Obj
ectors,
-against-
Decision
&
Order
Index No.: 15-2244
FREDRICK
RASMUSSEN
III,
Respondent-C andidate,
-against-
VICTOR WORK
and
THOMAS
F.
TURCO,
Commissioners
constituting
the
Ulster County
Board
of
Elections
Respondents.
Supreme Court,
Ulster County
Motion
Return Date:
August
4,2015
RII
No. 55-15-01256
Present:
Christopher
E.
Cahill,
JSC
Appearances:
Harris
Beach
PLLC
Co-Counsel for Petitioners-Obj
ectors
333
Earle
Ovington Blvd.,
Suite
901
Uniondale,
New York 11553
By:
Jared
Kasschau,
Esq.
Wapner, Koplovitz
&
Futerfas,
PLLC
Co-Counsel for
Petitioners-Obj
ectors
PO
Box
3268
Kingston,
New
York
12402
By:
Joshua Koplovitz,
Esq.
Rod
Futerfas,
Esq.
8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.
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Christopher
Burns,
Esq.
Attorney for
Respondent-Candidate
369 Washington
Avenue
Kingston,
New York
12401
Beatrice Havranek,
Esq.
Ulster County Attomey
Attomey for
Respondents
PO
Box
1800
Kingston,
New York
12402
By: Clinton
G. Johnson,
Esq.
Cahill,
J.:
In this
proceeding
brought
pursuant
to various
provisions
of
Article 16
ofthe Election
Law,
the
petitioners-objectors
seek to annul
the
petition
designating
Fredrick
Rasmussen
III
as a
Working Families
Party candidate
for
the office of
County Executive
of Ulster
County
in the
September
10, 2015
primary
election.
By
Order dated
July 30,2015, this
Court directed
the
Ulster
County Board
of
Elections
to rule
on the
petitioners-objectors'
specific
objections
to Mr. Rasmussen,s
designating
petition
by 5:00
p.m.
on
July 31,
2015.
The
Commissioners
did,
in
fact, rule
on
the objections,
but
several of their rulings
were
split
decisions which
left
unresolved
whether
Mr.
Rasmussen's
designating
petition
contains
the requisite (and
stipulated)
32 valid
signatures in
order
to
appear on the
ballot in the
September
10, 2015
Working
Families Party
primary.
2
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Accordingly,
this Court conducted a hearing on August 4,2015
to determine the
validity
of the 38 signatures
which
remained after the Commissioners
had
ruled
several
others
invalid by mutual consent.
After hearing what
amounted to the oral argument of the attomeys
(neither
attomey
called any witnesses
to
testiff,
and
the
admission
of five
Court exhibits was
stipulated to),
the
Court concludes as follows.
First, respondent-candidate's attomey conceded that
petitioners-objectors
were
correct
inassertingthatfive(5)signatures(Page4,
line3;Page6,
line
l;Page6,
line2;Page6,
line
5; Page 8,
line 4)
had
to
be
declared invalid
because the five
(5)
signatories
had
previously
signed
the
designating
petition
of
incumbent
County
Executive
Michael Hein
as a candidate
for the
Working
Families
Party nomination for
County
Executive
in the September
primary
(see
Election Law
$
6-134
[3];
Ehrlich
v
Biamonte,65 AD2d990
[2d
Dept 2009]).
Second,
with
regard
to
petitioners-objectors'
argument
that
seven
(7)
signatures
(Page
4, lines 2
and
4;
Page 5, line 1; Page
6,
lines 3 and
4;
Page 14,
lines
2
and 4) must be
invalidated
because
the subscribing
witness
to
these signatures, Mr. Rasmussen
himself, had
previously
signed the Independence Party designating petition
of Elizabeth
Bemardo
for
UlsterCountyExecutive,theCourtagrees.
ElectionLaw$6-132(3)requiresthatthe
Statement
of
Witness
must
be
given
by
a
duly
qualified
voter
of the state
qualified
to
sign
the petition.
Based
on
Election
Law
$
6-134
(3),
however,
Mr. Rasmussen
was
not
8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.
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qualified
to sign
the
petition
because he had
already
signed
the Bemardo
Independence
Party
petition.
Therefore,
he was
not
qualified
to complete
a
Statement
of
Witness,
and the
seven
(7)
signatures
at issue
(Ms.
Mcluckie's
signature
having
already
been invalidated
as
discussed
above) must
be
invalidated.
Next, as
to
petitioners-obj
ectors' contention
that the
signature
contained
on
Page
9,
line
3 is also invalid,
the
court agrees. while
the line
contains
the voter's
signature,
the
street
name and
town name, it
does
not contain
a
number
for the address.
This
omission has
been
held
to
be a
fatal defect
as
the requirements
of Election Law
6-130
which
includes the
complete
residence
of the signatory
must be strictly
complied
with
(Stoppenbush
v
Sweeney,
98
NY2d
a3l
Q0021;
Matter of DiSanzo v
Addabo,76
AD3d655l2dDept
20101).
Proceeding
to Page
12,
petitioners-objectors
contend
that all four
(4)
signatures
are
invalid
because
the information
below the
subscribing witness's
signature which
requires
the
subscribing
witness
to identif
the
town
or
city where he
or
she resides
has
been left
blank
and
the witness's
residence
address
(16
Center
Street,
Phoenicia,
Ny
12464)
does not
identifu
a town
in
Ulster county.
The
court disagrees.
As recently
as
August
2ol4,the
Third
Department
has
held
that this
omission
is
not fatal
to the
validity
of the
signature
where,
as
here,
the
complete
residence
address
ofthe
subscribing witness
appears
elsewhere
on
the
same
page
of the
petition
and
where,
as
here,
there is
no evidence
of
fraud
or
that the
subscribing
witness
did not
live
at
the address
provided
(vanSavage
v
Jones,
120
AD3d
gg7
8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.
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[2014]).
In
reaching this conclusion,
the
Court
also rejects the petitioners-objectors'
contention
that 1
6 Center Street, Phoenicia, NY
12464 does
not
identiff
a town in
Ulster
County.
Phoenicia is located
within
the
Town
of
Shandaken.
VanSavage
also requires
the
denial
ofpetitioners-objectors'
objections
to
page
14.
Proceeding
to
page
l6
which
contain four (4)
signatures,
the attorneys
agreed
during
oral argument
that
at
the most only two
(2)
signatures
could be valid
as
according
to the
Statement of
Witness, only two
(2)
signatures
were witnessed.
Again,
as
with
Pages
4, 5, 6
and
14,
the
two (2)
signatures
are
challenged
because
the
witness
identification
section
does
not
specif)
a
town or
city
as required by Election
Law 6-132. Pursuant
to
VanSavage
(supra),
however,
this challenge
must be
denied.
As to the second
objection that the
two
(2)
signatures must
be
invalidated
because the subscribing witnesses
failed
to
place
the correct
number
of
signatures
(4)
in the designated space,
the
petition
presented
no
statutory or
case
law to support
this
claim.
Accordingly, this objection
must be denied.
Finally,
as
to Page 19, the
Court
rejects
petitioners-objectors'
argument
and agrees
with respondent-candidate
that*7ll8l20l5,
the date written
to the left
of the signature,
is
obviously
a
mistake
as the
petition
itself
was
filed with the
Board
of Elections
on July
9,
2015,and,therefore,
the voter
could
obviously
not have
signed
it
later.
Accordingly,
that
signature
is valid.
To
summarize,
as
this Court,
based
on the
foregoing,
has
determined
that
the
8/20/2019 COURT RULING: Leber v. Rasmussen, et. al.
http://slidepdf.com/reader/full/court-ruling-leber-v-rasmussen-et-al 6/6
designating
petition
of
Mr.
Rasmussen contains
only
25
valid
signatures,
the
petition
brought
pursuant
to Article l6
of the Election Law
must be
granted
in all respects,
without
costs.
Therefore, it is
ORDERED
that the
petition
is
granted
in all
respects, without
costs.
This shall
constitute the decision and order ofthe
Court.
The
original
decision
and
order and
all
other
papers
are
being delivered to the
Supreme Court Clerk for transmission
to the Ulster County
Clerk
for
filing.
The signing
ofthis
decision
and
order shall not constitute entry
or
filing
under
CPLR
2220.
Counsel is
not
relieved from
the applicable
provisions
of that rule regarding
notice
of
entry.
SO ORDERED.
Dated: Kingston. New York
August 5,2015
Papers
considered:
Order
to
Show
Cause
dated
July
17
,2015,
Koplovitz Affirmation
dated
July
16,
2015,
Verified
Petition
dated July 16,2015
and
annexed
exhibits
A-B;
Courr
Exhibits
l-5.
6
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