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. Atthe SpecialElection PartI ofthe Supretne Court ofthe State ofNew York, held in and for the County ofKings, atthe.Courthouse, at 360 Adarns Stteet,Brooklyn, New York, on the 1 ~t day ofMay, 2024.

-------------. --. ----------- .--- ·---------------· --- . ------- .· .--------X In the Matter oftheApplication of STEPHANIE A. GIOVINCO and MAIA Y. YEDIN, Petitioners-Objectors,-againstBENJAMINJ. LIEBERMAN, Respondent,-Candidate, BOARD OF ELECTIONS IN THE CITYOF NEWYORK

. ' For 

### an order~ pursuant to.sections 16-100, 16-l02, and 16-116ofthe·Election Law; declaring INVALID the designating petition ptirpo1tingto designate Respondent~ Candidate forthe Public Office ofJudge ofthe Civil Court ofthe City ofNew York, from Kings County, City And State ofNew York, Assigned Vacancy # 11, in the June 25, 2024, Republican Party Primary Election, Enjoining RespondentBOARD OF ELECTIONSIN THECITY OFNEW YORK from certifying thenanie OfRespondentc.Candidate as.an official candidate for Said Pt1blic Officein said Primary Election, and enjoining the BOARD OF ELECTIONS INTHE. CITY OF NEW YORK from printing sa:id name.011 ballots to be used at Said PrimaryElection. IndexNo.: 510767/24



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### 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 inReply · 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 

## ofthe Qivil 

### Court 

### ofthe 

### City ofNew York, from Kings 

### County, City-and State 

### ofNew York, 

### Assigned Vacancy #11, 

### inthe June 25, 2024; RepublicanPdmary Election. Respondent-candidate movesfor 

### an order. pursuant to CPLR 32i 1 (a), 

### dismissing the petition. Respondep.t-candidate filed a deS:ignating petitionfor the ·above noted public office containing2255 .signatures·. Thereafter, on

### April 8, 2024, eachpetitioner;..objector fitedwith the 

### respondent Board··ofElections "in the City 

### ofNew 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 petitioners

### objector'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 

### atissue. 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);

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### 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, at3 :02p;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 ofobjections, 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 

### Atthe hearing~ counsel for respondent-candidate·stated that he did not have any exceptians to the clerk's report. However, respondent-candidate's counsel did object to the service of the specifications of objections on the ground thatthe 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 ofwhat 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 ofthe meeting postedon the Board's website of which this courtcan take judiciaI notice (see Lin v Banko, 219 AD3 d·1510; 1512 [2d Dept 2023]; Maisto vState 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;· vAllstate Ins. Co., 61 AD3q 13, 19-21 [2d Dept 2009]).



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### 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 thattheBoardprnperly 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 

### ifthe 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 CityBd. 

### 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 

### ofobjections·011 ade-novobasis as there is no petitioner-aggrieved candidate who is a partyto this proceeding. However,just a:s a candidate inan Election Law l 6c 102

. . proceeding has standing to s.eekjudicialreview ofthe 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 seekjudicial review of the Board's actions in rejecting their specifications of objections based upon an alleged defect in service or otherwise 

### (see 4


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### 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 ofobjections 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 ofobjections, Election 

### Law § 

### 6-154 (3) 

### (b), which sets forth the requirements relating to the service ofspecifications ofobjections; provides, in relevant part that, "No specifications of objections to any petition
... will be considered unless the objector filing the specifications personally delivers ormails by overnight mail a duplicate copyofthe specification to each candidate for public office named on the petition
... Proofofservice shall accompany the specifications or be received by the end oftwo business days following the filing ofthe specifications, whicheveris 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 ofElection Law § 6-154 (3} (b), provide, as is relevant, that: "Acceptable proofofservice 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,, whatwas served, ahd by what means); or 11. An overnight mailing receipt·(including date and time) from the delivei-y service showingthe name and address ofthe overnight mail recipfont. 5


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### 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 Gerteral Objection/Specificationnumber·ort the proofofservice; orby
11. Attaching the proofofservice to a copy ofthe first page ofthe specification). Such proofofservice 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 thatthepetitioners-objectors have satisfied the statutory require111ent that the "objector filing the specifications personally delivers or mails by overnight mail a duplicateqopy ofthe specification to each

.candidate for public office named on the petition" (Election Law § 6~ 154 [3] [b ]); Here, the objectorsjointly mailed one set ofspecifications ofobjections to the candidate via UPS overnight mail. Indeed, there is nothing in·the express language ofElection Law § 6-154 (3){b} that suggests that it is improper for two objectors, who are aligned and relying on the.identical specifications ofobjections before the Board, to serve their specifications of objections in a single overnight delivery. Such a view ofsection 

### {j-154 (3} (b) ig; supported by the statutory rule of' construction providing that, unless suggested otherwise by the context ofthe language or the object ofthe statute, words in thesirtgular numberinclude theplllial 

### (seePeople v Mitchell,38 NYJd 408,414 [2022]; 

### see alsoGeneral Construction Law§§ 35, 110). As such, the word "objector'' in the statute can beread in the plural, and under the circumstances herein where objectors·· .· acting together rely on ic:lentical



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### 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 ofthe ElectionLaw 

### § 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 

### ofobjections,

### the Board's·finding thatboth objectors failed to

### comply withthatsection

### w&~ incorrectsince, arguably, at least 

### orie ofthe objectors here.individuaiiy served the respondertt·candidate. Furthennore, any finding thatthe 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 proofof servicehete 

### also complies

### withthe requirements-ofElectionLaw§ i54 (3).(b). Given 

### that the 

### statute itselfdoes notindicate any particular means ofshowingptoof ofservice, this collrtis 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

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### 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 

### ofobjections, had mailed the documents torespondent-candidatewith 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

### proofof

### service- (Guidelines §

### § 

### H7 & 

### .H8). 

### Accordingly; the court finds that the 

### Board improperly found_petitioners-objectors' service ofthe.ir specifications ofobjections to be 

### defective, Furthermore, 

### given that_·.counsel 

### for respondent:-candidate sj;,ecificall_y stated 

### atthe Commissimiers; 

### meeting thathe: had

### 'no exceptions 

### tothe .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 ofservice, 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, resporldent 0i:andidate has :three business days from the date· of this order to coriimenc~ a proceeding to validate pursuantto Election Law§ 16-102 (2). 8

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### 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 ofJudge of the Civil Court ofthe City of New York, from Kings County, City and State ofNew York, Assigned Vacancy #11 , in the June 25, 2024, Republican Primary Election. This constitutes the decision, order andjudgment ofthe court. ENT E R

J.S.C. 

### HON,PETER P. SWEENEY,

## J.S.C.

9


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