By Dillon, J.P.; Cohen, Duffy, Connolly, Christopher, JJ. IN THE MATTER OF EVELYN ROBLETO, pet-res, v. RAJIV S. GOWDA, app, ET AL., res — (Proceeding No. 1); IN THE MATTER OF RAJIV S. GOWDA, app, v. EVELYN ROBLETO, res-res, ET AL., res — (Proceeding No. 2) — (Index Nos. 85050/20, 85052/20) In a proceeding pursuant to Election Law §16-102, inter alia, to invalidate a petition designating Rajiv S. Gowda as a candidate in a primary election to be held on June 23, 2020, for the nomination of the Democratic Party as its candidate for the public office of New York State Senator for the 23rd Senatorial District, and a related proceeding, among other things, to validate that designating petition, Rajiv S. Gowda appeals from a final order of the Supreme Court, Richmond County (Peter G. Geis, Ct. Atty. Ref.), dated April 28, 2020. The final order, after a hearing, among other things, in effect, granted the petition, inter alia, to invalidate the designating petition, and denied the petition, among other things, to validate the designating petition. ORDERED that the final order is reversed, on the law and the facts, without costs or disbursements, the petition, inter alia, to invalidate the designating petition is denied, the petition, among other things, to validate the designating petition is granted, and the Board of Elections in the City of New York is directed to place the name of Rajiv S. Gowda on the appropriate ballot. Objections and specifications of objections were filed by Evelyn Robleto in connection with a petition designating Rajiv S. Gowda as a candidate in a primary election to be held on June 23, 2020, for the nomination of the Democratic Party as its candidate for the public office of New York State Senator for the 23rd Senatorial District (hereinafter the designating petition). Thereafter, by order to show cause, Robleto commenced a proceeding, inter alia, to invalidate the designating petition. Gowda then commenced a related proceeding, inter alia, to validate the same designating petition. Pursuant to Executive Order (Cuomo) No. 202.2 (9 NYCRR 8.202.2), which was signed by Governor Andrew Cuomo on March 14, 2020, due to the COVID-19 pandemic, the required number of signatures for placement on the ballot for State Senate was reduced from 1,000 to 300. On April 21, 2020, the Board of Elections in the City of New York (hereinafter the Board), after invalidating 217 of the 520 signatures on the designating petition, determined that Gowda had a sufficient number of valid signatures to be placed on the ballot. The Supreme Court subsequently referred the matter to a Court Attorney Referee to hear and determine, among other things, the parties’ respective challenges to the Board’s findings and whether Gowda’s name should appear on the ballot. After a hearing, the Court Attorney Referee, inter alia, agreed with Robleto that 11 of the signatures that were validated by the Board were invalid because, among other reasons, they were duplicates, the voter had previously signed another candidate’s petition, or the address provided by the voter on the petition was located outside the 23rd Senatorial District. Although the Court Attorney Referee agreed with Gowda that one of the signatures was improperly invalidated by the Board, he rejected Gowda’s contention, inter alia, that 15 signatures were improperly invalidated on the ground that the address appearing on the voter’s registration card differed from the address provided by that voter on the petition. Thus, after deducting an additional 10 signatures from the designating petition, the Court Attorney Referee calculated that the designating petition contained only 293 valid signatures. As a result, in a final order dated April 28, 2020, the court, in effect, granted the petition, inter alia, to invalidate the designating petition, denied the petition, among other things, to validate the designating petition, and directed that the Board shall not place Gowda’s name on the ballot for the primary election to be held on June 23, 2020. Contrary to the Supreme Court’s determination, “[t]hat the address appearing on a voter’s registration record differs from the address provided by that voter on the petition he or she signed does not provide a basis for invalidating that voter’s signature” (Matter of Lee v. Orange County Bd. of Elections, 164 AD3d 717, 718; see Matter of Sheldon v. Bjork, 142 AD3d 763, 764; Matter of Bray v. Marsolais, 21 AD3d 1143, 1146). It is undisputed that of the 15 voters whose signatures were invalidated on that ground, the respective addresses provided on the designating petition by 11 of those voters, and the addresses listed on their respective registration cards, though different, were all located within the 23rd Senatorial District. It is also undisputed that the signatures on the registration cards of those 11 voters matched their respective signatures on the designating petition. Under these circumstances, we disagree with the court’s determination that those 11 signatures were properly invalidated by the Board. Thus, after adding those 11 signatures to the 293 signatures that were determined to be valid, the total number of valid signatures on the designating petition is 304, which is 4 more than the 300 signatures required. Accordingly, Robleto’s petition, inter alia, to invalidate the designating petition should have been denied, and Gowda’s petition, among other things, to validate the designating petition should have been granted. DILLON, J.P., COHEN, DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.
By Mastro, J.P.; Leventhal, Miller, Barros, Wooten, JJ. IN THE MATTER OF STEPHEN JASIKOFF, res, v. COMMISSIONERS OF THE WESTCHESTER COUNTY BOARD OF ELECTIONS, app — (Index No. 1376/20) In a proceeding, in effect, pursuant to CPLR article 78 in the nature of mandamus to compel the Commissioners of the Westchester County Board of Elections to accept as timely filed a petition designating Stephen Jasikoff as a candidate in a primary election to be held on June 23, 2020, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York State Assembly for the 88th Assembly District, the Commissioners of the Westchester County Board of Elections appeal from a judgment of the Supreme Court, Westchester County (David F. Everett, J.), dated March 27, 2020. The judgment, insofar as appealed from, after a hearing, granted the petition and directed the Commissioners of the Westchester County Board of Elections to accept the designating petition as timely filed nunc pro tunc to March 20, 2020. ORDERED that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits. Stephen Jasikoff circulated petitions to run in the Democratic Party primary election as a candidate for the public office of Member of the New York State Assembly for the 88th Assembly District. On March 18, 2020, in response to the COVID-19 pandemic, the Legislature passed, and the Governor signed into law, chapter 24 of the Laws of 2020 providing, in relevant part, that “[n]otwithstanding subdivision 1 of section 6-158 of the [E]lection [L]aw, a designating petition for the June 2020 primary election shall be filed with the appropriate board of elections on March 17 through March 20, 2020.” Claiming that he first became aware of this new filing deadline after it had already expired, Jasikoff filed his designating petition with the Westchester County Board of Elections (hereinafter the Board) on March 23, 2020, but allegedly was told that his petition would be invalidated as untimely filed. Accordingly, Jasikoff commenced this proceeding, in effect, pursuant to CPLR article 78 in the nature of mandamus to compel the Commissioners of the Board to accept his designating petition as timely filed. Following a hearing, the Supreme Court granted the petition and directed the Board to accept the designating petition as timely filed nunc pro tunc to March 20, 2020, reasoning in part that the late filing had been innocent and unintentional, would not prejudice the Board or any other party, and should be permitted in the interest of fundamental fairness. We reverse. Election Law §1-106(2) provides, in relevant part, that “[t]he failure to file any petition…relating to the designation…of a candidate for…public office…within the time prescribed by the provisions of this chapter shall be a fatal defect.” The courts of this State have repeatedly determined that the filing deadlines in the Election Law are mandatory and absolute, and are not subject to the discretion of the courts or the judicial fashioning of exceptions, regardless of how reasonable they may appear to be (see Matter of Hutson v. Bass, 54 NY2d 772; Matter of Baker v. Monahan, 42 NY2d 1074; Matter of Carr v. New York State Bd. of Elections, 40 NY2d 556; Matter of Gallo v. Turco, 131 AD3d 785; Matter of Rhoades v. Westchester County Bd. of Elections, 109 AD3d 561; Matter of Esiason v. Washington County Bd. of Elections, 220 AD2d 878; Matter of Fintz v. Poveromo, 197 AD2d 944). Here, the clear and unambiguous language of chapter 24 of the Laws of 2020 established that the last day to file the designating petition was March 20, 2020 (see generally Matter of O’Donnell v. Erie County, ___ NY3d ____, ___, 2020 NY Slip Op 02095, *4; Matter of Carr v. New York State Bd. of Elections, 40 NY2d at 559). Accordingly, Jasikoff’s conceded filing after that deadline had passed constituted a fatal defect, and the Supreme Court should have denied the petition and dismissed the proceeding. In view of the foregoing, we do not reach the appellants’ additional contention. MASTRO, J.P., LEVENTHAL, MILLER, BARROS and WOOTEN, JJ., concur.
