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Vaiselberg v. Radin

Vaiselberg v Radin 2025 NY Slip Op 31643(U) May 6, 2025 Supreme Court, Kings County Docket Number: Index No. 514640/25 Judge: Lawrence Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 05/06/2025 03:21 PM INDEX NO. 514640/2025 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/06/2025

At the.Special Election Part 1 of the ·supreme Court.of the State of New York.held in and for the C9unty of Kings, atthe Courthous e/at 360 Adams Street, Brooklyn:,- New York,. ·on the 6tl¹ day of May, 2025.

PRE.SEN T: HON. LAWRENCE KNIPEL, Justice. --.--- .--- ·------· ------------- ------------- ------. ------------ ----..__ .-------. -X BERNARD VAISELBERG,

Petitioner-Ciµ1didate, Aggrieved

-agai11st-' Index No;: 514640/25

SOYA RADIN, ·ReS:portdents-O bj ector

NEW YORK CITY BOARD OF ELECTIONS,

:Respondents,

For an Order pursuant to sections 16-100, 16-102 and 16-116 of theJ~kctio n L_aw, Declaring Valid the .Independent Nominating Petitions which name the Petitioner As··a Candidate for the Public Office ofState Senator from the 22"~ Senatorial District, Kings County, State of New York, on the '"Bernard the Moustache,, party lines at the Special Election to be Hehl on May 20, 2025., andto order said BOARD OF ELECTIONS to Print and place the name of said Candidate upon the. official Ballots of such -Special Electio.n. ------------·----- .-------- .. ------------------ ·.. -. -- .-- ·.-----------------------X- The following e-filed papers read hereii1:- NYSCEF Doc Nos.:

Notice of Motion/Ordel."to Show Cause/ Petiti01_1/Cros!i MOtion and Affidavits (Afffrma:tions) Anne·xed. _ _ _ _ _ __ .1-11 Oppo$ingAffid~vits/Answer (Affirmations).'-:_ _ __ 12-13. 14-16 Affidavits/ Affirmations in Reply _____ ____ O'ther Papers-: Notice of Appearance

FILED: KINGS COUNTY CLERK 05/06/2025 03:21 PM INDEX NO. 514640/2025 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/06/2025

Footnotes

[1] of 5 [* 1] Upon the foregoin g papers artd after oralargu inent conducte d on the record before the court on M·ay 6, 2025, the court rules as follows: Backgro und Facts and Procedu ral Hist01y On April 10, 2025, Governo r Hochul issued a proclam ation directing that a Special Election be held on May 20, 2025 to fill a vacancy for the public office of State Senator from the 22 nd Senate District. Under responde nt Board of Electiorts in the City of New York's (the Board} calendar for Independ ent Nominat ing Petitions for the Special Election, the first day to circulate petitions was April 10, 2025 and the last day to file petitions was April 21, 2025. On April 21, 2025, Petitiorter-Canciidate Bernard Vaiselbe rg (petition er) tiled With the Board an independ ent n01ninating petition on the ''Bernard the Moustac he'' party line seeking placeme nt on the ballot in the Special Election. Thereaft er, general and specifications of objection s were filedaga inst the petition by responde nt-objec tor Soya Radin. On April 24, 2025, the Board issued a clerk's report stating that petitione r's n01rtinatii1g petition only containe d 499 signatures and that 3,000 valid signature s were required for placeme nt on the ballot.] However , as aresult ofa ministeri al error, the Board emailed the clerk's report to a different email address than petitione r specified in his nominati ng petition. Neverthe less in a letter dated April 25, 2025, petitione r's representative Dannie} Maio stated that petitione r received the clerk's repo11 on April 24, 2025 (NYSCE F Doc. No. 8). 1 · Petitioner does not dispute the fact that his nominating petition cont.ained an insufficien t number of valid signatures. Indeed; he conceded on the -record that the petition only contains 499 signatures~ 2

[2] of 5 [* 2] On April 29, 2025, the Boatd;s Commis sioners metto determine whether or not petitioner's name would appear on the ballot in the Special Election . Petitione r's representative appeared at that meeting and raised several objection s to the specifications of objections. Petitione r's represen tative also objected to the fact that the clerk's report was sent to the wrong email address. However, the Commis sioner's found that these issues were incon:sequential inasmuc h as the nominat ing petition only contained 499 signatures in total a:nd was therefore defective on its face. Accordingly, the Cotmnissioi1er's ruled that petitione r's name would not appear on the ballot.in the Special Election. On May 2,2025, petitione r co111111enced the instant validatin g petition seeking to have his name placed on the ballot. Among other things, the petitione r argues that the Commis sioner's improperly removed his name from the ballot inasmuc h as the Board sent the clerk's report to the incorrec t email address in violation of Election Law § 6- 154(4) and thatas a result oftheinc orrect email address, he did not receive proper notices from the Board regardin g the Commis sioner's meeting. On May 5, 2025, the Board filed an affirination in opposition to the validating proceeding in which it notes that, notwithstanding its inadve1ient errot in emailing the clerk's report to the wrong address; petitioner appeared at the Commis sioner's meeting on April 29; 2025. ·The Board further notes that any remedy for imprope r notice would be to re-notice the hearing. Finally, the Board states that early voting and absentee ballots had already been mailed out and that the cut-off date to add candidates to the ballot for the May 20, 2025 Special Election was May l, 2025. In support of this 3

[3] of 5 [* 3] contention, the Board submits an affirmatio n by John Naudus, its-Directo r of Electronic Voting systems. In this regard, Mr~ Naudus states,. ''for the SpecialEl ection to be held on May 20,_ 2025,_ the early voting period. begins on May 1.0, 2025. To rheet th.is deadline, the -Board must complete its work on .crea,ting a ballot; printing ballots·, and testing th~ equipment being used apptoxitha tely ten days fo advance of the first day of early voting- [and] [a]t this late date, the Board is not able to. add candidates to ba11ots" (NYSCEF Doc. No. i3). Here; the court -n.nds that ·peti_tionet was. not prejudiced by any defects re_garding service of the clerk's report and. notice of the Commissi oner's meeting sine~ he. adrriit~ that he received a copy of the clerk's teport on the same· day ·it was iss11ed and he appeared at the nieetihg through hisreprese ntative~ Fmihermo re, any ·an~ged defects with the specifications. of objections,. notices and/or service qf the clerk's reportis of no moment since the. nominatitt g petition is .inv.:11id on its face since; as petitioner hims~lf concedes, it oµIy·conta'.iils 4-99 total signatures (Matter of O'.Connor v-Sharpe~ 208 AD3d. 1458., 1460.,146 i [3d n·ept 2022}). Further, since petitioner has conceded that his nominating petition contains an insufficien t number ofsignatur es fof placement on the ballot,he. cannotme_et his burden in this: validating proceedin g (id. at. 1462:). Finally~ even ifthere was merit to the claitns ·set:forth inpetition er's validating petition, the.record be:fore the court de1nonstra tes·that it would be impossible to render meaningfu l r¢.lief inasmuch as "af this juncture, the inclusion of [petitione r's] name on the [special ei ection] st ballot would not. be possible'' (Matter of Davis Clennqn, 22 7 AD3d 63 8~-- 639 [ 1 bept 4

[4] of 5 [* 4] 2024]; see also, Matter of Hunter v Orange County Bd. of Elections, 11 NY3d 813,814 (200 8]); Matter ofSemple v Laine, 121 AD3 d 798, 799 [2d Dept 2014]). Accordingly, it is hereby ORDERED AND ADJUDGED that petitioner's petition to validate his independent nominating petition is denied and dismissed. This constitutes the decision, order, and judgment of the court. Justice Lawrence Knipe! 5

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