UPDATED, 1-16-02 12:15 PM:Justices Sandra Feuerstein, William D. Friedmann and Robert W. Schmidt found in favor of former Councilman Larry Delgado Tuesday evening, calling for a new citywide election between Delgado and Glen Hockley. Judge Gabriel M. Krausman dissented in the Appellate Division, Second Judicial Department of the New York State Supreme Court 5-1/2 page decision handed down from Brooklyn Tuesday evening. Mr. Bradley, Glen Hockley’s attorney comments. Here’s WPCNR’s first look at the decision:
A review of the decision faxed to WPCNR reveals that the majority opinion denied Mr. Hockley’s cross appeal of the Judge Francis Nicolai decision to hold a continuation of the election only in District 18 to dismiss the Supreme Court decision to throw out Judge Nicolai’s ruling on a technicality, yet disagreed with Nicolai on the remedy. The judges also called for a citywide Special Election between the two.
WHOSE NAME WILL GO ON THE COUNCILMAN SIGN? The sign that formerly bore Pauline Oliva’s name stands neatly painted over in the City Hall parking lot, awaiting a Special Election between Glen Hockley and Larry Delgado, providing Mr. Hockley does not appeal the Appellate Court decision handed down Tuesday.
PHOTO BY WPCNR.
On Delgado failure to purchase a second index number, the court refuses to budge.
After stating the circumstances surrounding the alleged technicality violation the majority opinion ruled,
Hockley moved to dismiss the (Delgado) second order to show cause and petition on the grounds, inter alia, that Delgado failed to purchase a second index number and filed the second order to show cause and petition after it was served. The Supreme Court (Judge Nicolai), inter alia, denied the motion to dismiss, and upon determining that the voting machine in the 18th Election District had malfunctioned, directed that a continued election be held in that district only. Hockley appeals, arguing, inter alia, that the Su[preme Court erred in denying his (Hockley’s) motion to dismiss the second order to show cause and petition. Hockley urges on appeal that, having brought to the Supreme Court a second order to show cause and petition, Delgado was required, pursuant to CPLR 304 and 306-b, to purchase a new index number and file the petition before serving it. We disagree.
Mislabeling of papers not enough to sidetrack the vote
The three judges continued into the labyrinthine flurry of those eight fateful days beginning November 7 when the petitions and the show cause orders flew between the parties over the District 18 impasse. Originally Delgado had filed a petition to impound the voting machines Wednesday morning, November 7, when results in District 18, known as a Republican stronghold, showed him running 100 votes behind his fellow Republicans, indicating to him something was wrong up in North Broadway.
A week later, it became clear to the Delgado camp there was no human reporting error. They theorized the machine appeared jammed. Delgado filed a second set of papers on November 14, 2001, labeled a petition instead of a motion, requesting a ‘hand recanvass and court review’ and ‘a review and correction of the canvass of the machine case ballots.’ Mr. Delgado did not buy a second new index number “in connection” with his second order to show cause.
The show cause order came before Judge Francis Nicolai. Adam Bradley, Glen Hockley’s legal counsel, argued with Judge Nicolai that the missing new Index Number was grounds for dismissing the Delgado petition outright, and not proceeding with examination of the Election District 18 voting machine, which he also opposed a not being specifically called for by Election Law. Judge Nicolai resoundingly rejected his argument, saying he was not going to “throw out a case this important on a technicality.”
The Appellate Court Agrees with Nicolai Tuesday evening
In the decision from the Supreme Court, Appellate Division, Second Judicial Department, the Brooklyn three, dated January 14, the majority wrote:
"While it is true that Delgado labeled his second set of papers an order to show cause and petition instead of an order to show cause and motion, in his second order to show case, he indicated that the canvass which he had originally requested was incomplete. Further he requested relief which was related to and contemplated by the relief which he requested in his original order to show cause, and which properly could have been sought in a subsequent motion. In addition, Hockley failed to specify any prejudice as a result of the mislabeling of the papers. The Supreme Court (Nicolai) therefore correctly refused to dismiss this otherwise meritorious claim simply because the second set of papers presented to it was mislabeled.
Moreover, Delgado’s second order to show cause included a general prayer for ‘such other, further, and different relief as this court may find to be just and proper’. Generally, a notice of motion or order to show cause must state the relief demanded and the grounds therefore (see, CPLR 2214[a]). A court may grant relief, pursuant to a general prayer contained in the notice of motion or order to show casue, other than that specifically asked for, to such extent as is warranted by the facts plainly appearing on the papers on both sides (decision cites 3 previous decisions). It may do so in the absence of surprise or prejudice (citing a case and commentary), and the determination of whether to grant such relief is discretionary with the court ,(citing two cases).
Appellatteers note a Delgado ambiguity.
The three magistrates in the majority opinion did single out this oversight, but dismissed it:
“Although the prayer for relief contained in Delgado’s second order to show cause did not explicitly request leave to amend the pleadings, he did request such relief in paragraphs 28 and 31 of the “petition” appended thereto, which, we have already noted, was in actuality a motion for additional relief in connection with the first order to show cause and petition. Under the exceptional circumstances of this case, we therefore would find it appropriate to grant Delgado leave to amend his original petition to add the calims raised in the “petition” appended to the second order to show cause.
Accordingly, we conclude that there was no necessity for Delgado to purchase a new index number and file anew in accordance with the provisions of CPLR 304 and 306-b.
Judges open up the election to the entire city – only between Delgado and Hockley
They judges expanded Judge Nicolai’s remedy :
“The Supreme Court (represented by Judge Nicolai), however, should have directed a new citywide election, instead of a continued election in the 18th Election District only, between Hockley and Delgado for the third contested seat (see, matter of Doherty v. Machoney, 42 NY2d 1069). It also should have afforded sufficient time before the new election to enable the Board to provide proper notice to the voters pursuant to Election Law * 4-120(1), and to provide for the casting of absentee ballots. We therefore modify the order to direct that the new election be held on the earliest date deemed practicable by the Board (of Elections) taking into account these considerations.
The ruling goes on to state that “the matter must be remitted for entry of a judgment declaring the rights of the parties in accordance herewith,” and rejected Mr. Bradley’s other arguments as being “without merit.”
UPDATE:In new information brought to WPCNR’s attention by Adam Bradley, Mr. Hockley’s attorney, Mr. Bradley informed WPCNR that not only his arguments, but also Mr. Delgado’s Cross Appeal, and request that he, Delgado, be declared the winner was also rejected by the appeals court. He added that the majority decision also follows the Bradley/Hockley contention the election should be citywide, between the two candidates. Bradley said the sentence “The remaining contentions raised on the appeal and cross appeal are without merit,” denied the Delgado cross appeal and request to be declared the winner.
The Delgado View:
Larry Delgado, speaking with WPCNR Tuesday evening said, this means the two parties will return to Supreme Court, go before Judge Nicolai, and receive Nicolai’s instructions on how the election should be run.
It was said by Jeffrey Binder, another Delgado election attorney who prepared the case with John Ciampoli, that this means only the voters who voted in the November 6 election could vote in the new election, since the Appellate Court Justices did not address that issue, which was part of Judge Nicolai’s decision.
Appellatteers leave the details to Judge Nicolai
Delgado weighed in with the further opinion that the judges did not wish to involve themselves in the “day-to-day, nitty gritty” of the new election.
On the basis of this written decision, it appears that Nicolai’s originally call for an election with all six council candidates on the ballot has also been thrown out, because the Appellate decision species an election between Delgado and Hockley alone. This creates the spectacle of a mano-a-mano race developing over the next 45 days to 60 days. Delgado theorized it would take the Board of Elections at least that long to prepare to notify all who voted November 6 that they can vote again, a total of over 12,000 persons. Delgado blue-skying with WPCNR guessed the election could be held in early March.
Another city hall source told WPCNR that City Clerk Janice Minieri was going to have a job to do outfitting machines to cover all 46 Election Districts. Moreover, how many polling places there would be has yet to be determined.
These kinds of issues are to be determined by Judge Nicolai, according to the Appellate Court.
One Judge Dissents.
Judge Gabriel Krausman went by the book. He passionately demurred with his Appellatte colleagues. He wrote a three page “dissent” (longer than the majority opinion). He strongly supports the Adam Bradley contention that the Delgado faux pas of failing to obtain and purchase a second index number was grounds for granting the Bradley-Hockley appeal that the Delgado petition should be dismissed and Hockley declared the winner.
Krausman cited several cases where the Court of Appeals, Glen Hockley’s next and final stop in fighting a new election, threw out cases on this very technicality. We turn now to the Judge’s writing:
I believe that Delgado’s failure to comply with statutory filing and service provisions require us to dismiss his second proceeding. Furthermore, I disagree with my colleagues’ position that dismissal can be avoided by either treating the second order to show cause and petition as a motion for further relief in the first proceeding, or by amending the petition in the first proceeding to include the additional claims contained in the second petition. Accordingly, I would reverse the order appealed from upon the ground that the second proceeding was not properly commenced.
Cutting to the heart of Judge Krausman’s thinking, he points out his colleagues’ recount of the sequence of events is correct, but highlights the case of Gershel v. Porr, which found that under the filing system, ‘service of process without first paying the filing fee and filing the initiatory papers is a nullity, the action or proceeding never having been properly commenced.’
Court of Appeals agrees.
Krausman writes the Court of Appeals upheld the matter of Gershel v. Porr in dismissal on these very grounds of filing protocol:
The Court of Appeals observed that ‘by withdrawing the order to show cause rather than obtaining from the court a new return date and date by which service would be made of the filed order to show cause and petition, petitioner made the decision to start anew. Along with this decision came the obligation again to comply fully with the statutory filing requirements, that is, to file the notice of petition and the petition, pay the filing fee, secure an index number, effect service, and file proof of service within the prescribed period.’ The Court of Appeals found that the petitioner’s failure to properly comply with these filing requirements was a fatal jurisdictional defect.
Justice Krausman writes on to describe three more cases where “the failure to properly file the initiatory papers in an Election Law proceeding, or effecting service, prior to filing, renders the proceeding jurisdictionally defective.” He refers Connolly v. Chenot, Kurtzberg v Mastroianno and Carnese v. Ferraro.
Dissenting judge finds flaw. Says first petition completed. Second not a clear-cut continuation.
The demurring deliberator writes:
“…the majority reasons that Delgado can be saved from the unfortunate consequences of his failure to comply with CPLR 304 by deeming the second order to show cause and petition to be merely a continuation of the first proceeding, rather than a second distinct proceeding. The flaw in this rationale is that Delgado’s first petition sought only the limited relief of impoundment of voting machines and ballots, in order to ensure the integrity of the voting process. The respondent candidates consented to the relief requested in the first petition, and no other issues remained outstanding once the impoundment order had been carried out.
“In contrast, Delgado’s second petition sought additional relief not contemplated in the first proceeding, including a review of the canvass and recanvassing of votes, with particular scrutiny of the voting machine in the 18th district which may have malfunctioned. Along with Delgado’s decision to request this additional relief, and seek either adjustment of the canvass of votes or a new election, came ‘the obligation again to comply fully with the statutory filing requirements’, including paying the filing fee and securing and index number. (Gershel v. Porr).
The minority opinion concludes dismissing the majority’s clinging to the additional claims in Delgado’s second petition:
“According to the majority, we may grant this relief to Delgado because his second petition contains two paragraphs requesting leave to amend the pleading, as well as a general prayer for ‘such other, further, and different relief as this court may find to be just and proper’. This position does not withstand scrutiny. First of all, the two paragraphs in the second petition which contain requests to amend the pleading clearly do not refer to the petition in the impoundment proceeding. Rather these two paragraphs…state that the petitioner ‘requests leave to, and reserves the right to submit further proofs by way of witnesses *** and *** evidence upon the date set by this court for the trial and hearing of this matter, and to amend these pleadings to reflect the facts adduced by way of further investigation and/or a canvass of the ballots.’ This language cannot be fairly interpreted as a request to amend Delgado’s first petition.
Krausman ties up the loose ends
The Justice strictly interprets the statutes, too, contending that,
“the broad prayer for such other relief as may be just and proper, which is contained in the second petition, does not provide us with the authority to revive the impoundment proceeding, which was no longer pending when the second order to show cause and petition were purportedly filed. Logic dictates that a complaint or petition which is no longer extant cannot be amended (Hummingbird Assoc. v. Dix Auto Serv., Louden v. Rockefeller Ctr.) Morover, CPLR 3025(c), which authorizes the court to freely grant leave to amend a pleading ‘upon such terms as may be just’, cannot be used as a device to circumvent a dismissal of a prior action (cites case), or the filing requirements of CPLR 304. While dismissal may be considered a harsh result in this case, it is mandated by statute, and may not be circumvented by expanding the petition in the completed impoundment beyond its intended scope.”