Matter of Giovinco v Lieberman

2024 NY Slip Op 31574(U)

May 1, 2024

Supreme Court, Kings County

Docket Number: Index No. 510767/24

Judge: Peter P. Sweeney

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 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

1 of 9

PRESENT: 

HON. PETERP. SWEENEY~ 

Justice. 

At the Special Election Part I of the Supretne 

Court of the State of New York, held in and 

for the County of Kings, at the.Courthouse, at 

360 Adarns Stteet,Brooklyn, New York, on 

the 1 ~t day of May, 2024. 

-------------. --. ----------- .--- ·---------------· --- . ------- .· .--------X 

In the Matter of the Application of 

STEPHANIE A. GIOVINCO and MAIA Y. YEDIN, 

Petitioners-Objectors, 

-againstBENJAMIN J. LIEBERMAN, 

Respondent,-Candidate, 

BOARD OF ELECTIONS IN THE CITY OF 

NEWYORK . ' 

For an order~ pursuant to.sections 16-100, 16-l 02, and 

16-116 of the· Election Law; declaring INVALID the 

designating petition ptirpo1tingto designate Respondent~ 

Candidate forthe Public Office of Judge of the Civil 

Court of the City of New York, from Kings County, City 

And State of New York, Assigned Vacancy # 11, in the 

June 25, 2024, Republican Party Primary Election, 

Enjoining Respondent BOARD OF ELECTIONS IN 

THE CITY OF NEW YORK from certifying thenanie 

Of Respondentc.Candidate as.an official candidate for 

Said Pt1blic Office in said Primary Election, and enjoining 

the BOARD OF ELECTIONS IN THE. CITY OF NEW 

YORK from printing sa:id name.011 ballots to be used at 

Said Primary Election. 

IndexNo.: 510767/24 

[* 1]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

2 of 9

The· followihg· e-filed papers read herein: 

Notice of Motion/Order to Show Cause/ 

PetitioniCtos·s Motion ·.ancl 

Affidavits (Affomatiorts) Annexed.·_· ______ _ 

Opposing Affidavits/Answer (Affirmatfons). ___ _ 

Affidavits/ Affirmations in Reply · 

Other I>apers: Letter to Court 

NYSCEF Doc Nos.: 

1 2 4 

6 7 

17 

Upon the foregoing papers and upqn i'.al argument conducted on the record on April 

26; 2024, petitiorters.-objectors Stephanie A .. Giovinco and Maia K. Yedin (petitioners,. 

objectors) petition for an order declaring invalid ·respohdei1t-candidate Benjamin. J, 

Li¢ben,nan ,·s designating p~tition for the public office of Judge of the Qivil Court of the 

City of New York, from Kings County, City-and State of New York, Assigned Vacancy 

#11, inthe June 25, 2024; RepublicanPdmary Election. Respondent-candidate moves for 

an order. pursuant to CPLR 32i 1 (a), dismissing the petition. 

Respondep.t-candidate filed a deS:ignating petition for the ·above noted public office 

containing 2255 .signatures·. Thereafter, on April 8, 2024, each petitioner;..objector fited with 

the respondent Board··of Elections "in the City of New York (Board) a gent::ral objection in 

their own name, and, onAprillS,2024, at 3:01 p.m., each objector flied s.eparate, but aside 

from their names and, address~s. identical specifications of objections With the Board, 1 

These specifications ofobjections: identified. HQward Gra1,1b~d, Esq-~ as each petitionersobjector's contact p:erson and :stated that "'[t]he• objector sub1nits the following 

specifications· 'in support of the General Objection to the "designating petition for'' the 

respondent-candidate, and specifically iderttifiedthe petition volumes at issue. On the same 

"i The time and elates noted herein are shown by the Board's time and date stamps visrbie on the docu.ments 

submitted to·the court.(see NY St Cts Elec; Filing [NYsci:·F) boc Nos. 12 & 16); 

[* 2] ····-··-·····-···· .. --.............................. ..... . ........ •······················· .. ···········-····--··········-··-··--······ ... -----
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

3 of 9

date, at 3 :02 p;m,, petitioners-objectors filed with the Board a UPS Shipment Receipt dated 

April 15, 2024;, for a ''next day deHvety" from Howard Gra11bard, Esq., to Benjamin J. 

Liebennan, at a residential address in Brooklyn. This receipt showed an expected delivery 

date of April 16, 2024, and that the . package had a billable weight of five pounds. In . . . 

addition, ''KG 73/74," which are the specification identification numbers the Board 

assigned to petitioners-objectors' respective specifications of objections, was handwritten 

on the receipt 

Based on the petitioners-objectors' specifications of objections, Board personnel 

reviewed the respondent'.°candidate's designating petition and prepared a preliminary 

clerk's report indicating that there Were 870 valid signatures in the designating petition, 

which is 630 fewer than needed for place1nent on the ballot for this office (see Electiorr 

Law § 6-136 [2] [c]). Both petitioners-objectors and the respondent-candidate thereafter 

appeared by counsel at the Board 'sCommissioners' hearing conducted on April 23, 2024.2 

At the hearing~ counsel for respondent-candidate· stated that he did not have any excepti ans 

to the clerk's report. However, respondent-candidate's counsel did object to the service of 

the specifications of objections on the ground that the cover sheets for the two objectors 

Were attached to one set of specifications ofobjections in· a single envelope and that the 

proof of service made it impossible to tell which specification.s were served on the 

2 The facts of what oc_curred at the meeting are taken from the parties' respective papers, which essentially recount 

what occurred at the meeting; and the .court's review of the video of the meeting posted on the Board's website of 

which this court can take jud icia I notice (see Lin v Banko, 219 AD3 d · 1510; 1512 [2d Dept 2023]; Maisto v State of 

New.York, 154 AD3d 1248, 1251 n4 [3d Dept 2017]; Matter of LaSonde v Seabrook, 89 AD3d 132, 137 h8 [1st Dept 

2011], Iv denied 18 NY3d 91i [2012]; Kihgsbrook Jewish Med. Ctr;· v Allstate Ins. Co., 61 AD3q 13, 19-21 [2d Dept 

2009]). 

[* 3]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

4 of 9

respondent-candidate. The Board~s Commis.sioners agreed with this argument, ruled the 

objettions to the designating petition invalid, and placed the respondent-candidate on the 

ballot for the June 25, 2024, Republican primary. 

Following the Board's meeting, the respondent-candidate made the instant motion 

to dismiss, arguing that the Board prnperly rejected the petitioners-objectors' specifications 

of objections filed with the Board and, as such, the petitioners-objectors no longer had 

standing to challenge the respondent-candidate's designating petition in court. In this. 

r.egard, the court initially notes that if the Board correctly rejected petitioners-objectors' 

objections on the ground that petitioner-objectors failed to comply '\vith. the statutory 

service requirements., petitioner-objectors would not have standin.g to continue this 

proceeding (see Matter of Sgambati v New York City Bd. of Elections, 224 AD2d 564, 564 

[2d Dept 1996]; Matter of Margolis v Larkin, 39 AD2d 95J, 951-952 [2d Dept 1972], ajf d 

30 NY2d 876 (1972]; see also Matter of Nicolai v Kelleher, 45 AD3d 960, 963,-964 [3d 

Dept2007]). The court further notes that it has no authority to review and rule upon the 

specifications of objections ·011 ade-novo basis as there is no petitioner-aggrieved candidate 

who is a party to this proceeding. However, just a:s a candidate in an Election Law l 6c 102 . . 

proceeding has standing to s.eekjudicialreview of the Board's actions inrejecting their 

designating petition based upon an alleged cover sheet defect (see Matter of Rayon v 

Greenfield, 109 AD3d 920, 921 [2d Dept 2013]; Matter ofKrance v Chiaramounte, 87 

AD3d [2d Dept 2011]; Matter of Magelaner v Park, 32 AD3d 487 [2d Dept 2006]), an 

objector has standing to seek judicial review of the Board's actions in rejecting their 

specifications of objections based upon an alleged defect in service or otherwise (see 

4 

[* 4]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

5 of 9

MatterofVanStockum vCastine;218 AD2d 915,916 [3dDeptl995l). Accordingly, the 

court must determine whether the Board's action in rejecting petitioners-'objectors' 

specifications of objections based upon the alleged service defect was proper. The court 

notes that other than a submission ofa letter (NYSCEFDoc. No. 17), the Board has not 

appeared in this action tQ defond its actions in rejecting the specifications of objections, 

Election Law § 6-154 (3) (b), which sets forth the requirements relating to the 

service ofspecifications of objections; provides, in relevant part that, "No specifications of 

objections to any petition ... will be considered unless the objector filing the specifications 

personally delivers or mails by overnight mail a duplicate copy ofthe specification to each 

candidate for public office named on the petition ... Proof of service shall accompany the 

specifications or be received by the end of two business days following the filing of the 

specifications, whichever is later." 

Also relevant to the detennination here are the Board's Designating Petition & 

Opportunity to Ballot Petition Guidelines for Prim&ry Elections (Guidelines), which, in 

addition to repeating the requirements of Election Law § 6-154 (3} (b), provide, as is 

relevant, that: 

"Acceptable proofof service includes either: 

1. Ari affidavit duly notarized from the person who either 

personally served the specifications or whoduly mailed 

the·specifications. by overnight mail {stating who was 

served, when they were served,, what was served, ahd by 

what means); or 

11. An overnight mailing receipt·(including date and time) 

from the delivei-y service showing the name and address 

of the overnight mail recipfont. 

5 

[* 5]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

6 of 9

... "Proof of service of specifications must identify the 

specification it is related by either: 

L Including the borough artd Gert er al 

Objection/Specificationnumber·ort the proof of service; 

orby 

11. Attaching the proof of service to a copy of the first page 

ofthe specification). Such proof ofservice mustbe filed 

in person at the Executive Office of the Board, 32 

Broadway; 7th Floor, New York, N.Y. 10004" (Board 

Guidelines H7 & HS). 

In addtessingthe parties' contentions, this court finds thatthe petitioners-objectors 

have satisfied the statutory require111ent that the "objector filing the specifications 

personally delivers or mails by overnight mail a duplicateqopy of the specification to each 

. candidate for public office named on the petition" (Election Law § 6~ 154 [3] [b ]); Here, 

the objectors jointly mailed one set of specifications of objections to the candidate via UPS 

overnight mail. Indeed, there is nothing in· the express language of Election Law § 6-154 

(3){b} that suggests that it is improper for two objectors, who are aligned and relying on 

the.identical specifications of objections before the Board, to serve their specifications of 

objections in a single overnight delivery. Such a view of section {j-154 (3} (b) ig; supported 

by the statutory rule of' construction providing that, unless suggested otherwise by the 

context of the language or the object of the statute, words in thesirtgular number include 

theplllial (seePeople v Mitchell,38 NYJd 408,414 [2022]; see alsoGeneral Construction 

Law§§ 35, 110). As such, the word "objector'' in the statute can be read in the plural, and 

under the circumstances herein where objectors·· .· acting together rely on ic:lentical 

[* 6]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

7 of 9

specifications of objections, serving respondent.:.candidate in a single· mailing is not 

violative of the Election Law § 6~ 154 (3) (b r 

Ipiportantly, in addressing this issue.,, this _court notes that respondent-candidate 

makes:tr-o assertion that pe.tition,ers~obj~ctors faile_dio serve him with what was filed with 

the ·Board or that ·he ·was actually ·c.oilfu:sed as Jo what was served on him. Based on the 

papers filed with the Boatd, this court finds that the se,rvice of two specifications of 

qbjections cover sheets: which rely on the saifie identical _set ofspecifica,tions would not 

have b_een confusing to a person receiving the papers, especially sinc·e each objector here 

indicatep that their objections consisted of the '~following specifications'' which 

accompanied. the single volu1ne of 293 pages of specification sheets in the- mailing 

envelope. 

Even assuming that the Election Law:§ 154 {3.) (b).-mustbe read to·require each 

objector to Separa.tely ~erve- copies of their specifications of objections, the Board's ·finding 

that both objectors failed to comply with that section w&~ incorrect since, arguably, at least 

orie of the objectors here.individuaiiy served the respondertt·candidate. Furthennore, any 

finding that the second objector failed to properly serve th~ respondent-candidate is ofno 

consequence since the objectors_' specifications ofC)bjections were identical. . 

. Contrary to respondent-cartdidate'-s ass.ertion and the-Board's-finding, the proof of 

servicehete also complies with the requirements-of Election Law§ i54 (3).(b). Given that 

the statute itself does not indicate any particular means ofshowingptoof ofservice, this 

collrt is not inclined to find that a receipt from a shipping provider would be_ jnsμfficientto. 

s.erve a,s such proof. Moreover;- the UPS Shipment receipt showed that the ·objectors_, 

7 

--~-----·------------··········· . [* 7]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

8 of 9

through the contact person identifie4 on their specific~tions of objections, had mailed the 

documents to respondent-candidate with an expected overnightdeliv~ry.3 Sinc~_this receipt 

had the date--.and: time_ of the overnight mailing: and had writt~n on it the speci_fi~ation 

numbers assigned by the- Board, it .also ·complies with the Board's· own Guidelines for 

acceptable proof of service-(Guidelines § § H7 & .H8). 

Accordingly; the court finds that the Board improperly found_petitioners-objectors' 

service of the.ir specifications of objections to be defective, Furthermore, given that_·.counsel 

for respondent:-candidate sj;,ecificall_y stated atthe Commissimiers; meeting that he: had 'no 

exceptions to the .clerk's report showing that he. had 63'0 fewer-·vaiid signatures than the 

1500 signatures required to be placed on the ballot, the Board should have confirmed the 

· clerk's report based on the specificatfons of objections. The Board thus erred in _placing 

respondent-:-candidat~ on the ballot. Therefore, the petition to invalidate- is granted, 

respondent-candidate.'.s designating petition is 9eclar~d invalid, and his name should be 

removed from the ballot- for the June 25, . 2024 llepril:>lican primary- (see-· Matter of Van . 

Stockum v Castine, 218 AD2d 915, 916 [3d Dept 1995]).4 Additionally, respondentcandidate's motion to clismiss is denied. 

5 .Given that the statute itself does not indlcate ·any p~rticula( means of·showing.·proof of service, this c;our.t is not 

inclined to.find that a receipt fr.om a. shipping provider·would-be insufficie·nt to.serve as such· proof. 

~-In v1e.w ofthe Board'snnding.tha't s.ervic~ .. ofthe specifica~iori~ of objections was invalid, and its placing respondent;-

candldate .o.n the ballot; thi_s c~u~t':S determin~tion effectively reverses the Board's determfnatio_n within th~ 

meaning of Electi_on La"',-§ 16-102 (2). Thus, resporldent0i:andidate has :three business days from the date· of this 

order to coriimenc~ a proceeding to validate pursuant to Election Law§ 16-102 (2). 

8 

----··••-'••···· ·····--·-·------- [* 8]
FILED: KINGS COUNTY CLERK 05/02/2024 11:24 AM INDEX NO. 510767/2024

NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/02/2024

9 of 9

Accordingly, it is 

ORDERED that petitioners-objectors' invalidating petition is granted; and it is 

further 

ORDERED that respondent-candidate's motion to dismiss is denied; and it is 

further 

ORDERED that the Board shall remove respondent-candidate Benjamin J. 

Liebennan 's name from the ballot for the public office of Judge of the Civil Court of the 

City of New York, from Kings County, City and State of New York, Assigned Vacancy 

#11 , in the June 25, 2024, Republican Primary Election. 

This constitutes the decision, order and judgment of the court. 

ENT E R 

J.S.C. 

HON, PETER P. SWEENEY, J.S.C. 

9 

[* 9]