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ED
ON
812712009
SUPREME COURT OF
THE
STATE OF NEW
YORK
-
EW
YORK
COUNTYPRESENT:
LOUIS
CRESPO
SPECIAL
REFEREE
PART
85R
CHRISTOPHER
BURKE,
ET AL.,
INDEX
NO.
1
1077912009
MOTION
DATE
August
24,2009
MOTION
SEQ.
NO.
lnterlm Order
v-
MICHAEL McSWEENEY, CITY
CLERK
OF
THE
CITY
OF NEW
YORK, ET
AL.,
The
following
papers,
numbered
1
to were read on
thls
motiNotice
of
Motion/ Order to Show
Cause
-AAnswerlng Affidavits
-
xhlbltsReplying Affldavits
Cross-Motio
APPEARANCES:
For Plaintiffs For Defeaants
Mr.
Dennis
P.
McMahon,
Esq.
195 Broadway Assistant Corporation CounselNew York,
NY
10007(212)
337-4250
100
Church Street
denni
s.mcmahon@,thom$onreuters.com
Mr.
Stephen Kitzinger,
Esq.,
Corporation Counsel
of
the Cityof NewYorkNew
York,
NY
10007
$kitzinger@,law.nyc
gov
(212)
788-0849
By order
ofthe Hon., Edward
H.
Lehner, dated August
3,2008,
the issueofvalidatingthe plaintiffs’ petition
seeking
the placement
of
a
referendum
on
the November 2009General Election ballot (the “Petition”) was referred to the Special Referee to hear andreport. The facts giving rise to this action areset
out
in the Interim Orders
of
theSpecial
Referee,
dated August
3
and
6,2009,
and
are
incorporated
by
reference herein.This matter was initially conference with the attorneys
on
August
3,
and a follow upconference August
6,2009.
Subsequently,on
August
7,
an Interim Order was issueddirecting that the parties commence the line-by-line review
of
the approximate 24,644signatures certified
by
the defendant Clerk as invalid (on the ground they signatorieswere unqualified voters), no later than August
10,
2009 and
that the same wouldconclude on Friday, August 14,2009.On August 14,
2009,
a third conference followed on the status of the line-by-line.Plaintiffs counsel represented that another
week
would be sufficient
to
complete theline-by-line conditioned up the availability of facilities and stations.
At
that time
a
further Interim Order was issued
by
the Special Referee, directing among other things,continuation of the line-by-line until August 21, 2009; the plaintiff file an amendedverified petition by August
2
1,2009;
he
plaintiff serve
a
bill
of
particulars by
August28,
2009; defendants to
serve
answer and/or motion to dismiss
by
September 4,2009;and
a
conference be schedule with the
Court
regarding all
of
the above
on
September
Page
1
of
3
Supreme Court Records OnLine Library - page 1 of 3
 
Page
2
of
3
8,
2009 at
4:OO
PM.
Lastly, the
Court
would begin a line-by-line review
of
disputedsignatures at the
BOE
on September 8,
2009,
to
go
day-to-day until September
18,
2009
(unless otherwise directed).
On
Friday, August 21,
2009,
after the close of business,
the
Special Referee held atelephone conference at the request
of
plaintiffs attorney
at
approximately
5:30
P.M.The plaintiffs’ attorney requested permission to extend their review at Adams Streetlocation specific volumes
33,34,35,36,37
and
38
(six volumes)(see also, McMahon
08/24/09 7:
15
A.M.,
Email Application to Special Referee,
p
l),
without extending thetime to submit the Bill
of
Particulars, due Friday, August
28,
2009. It was noted thatplaintiffs’ earlier request
for
an extension to Monday, August
24,
2009,
to completereview
of
volumes
44,47
and
49,50,51
and
52
(six volumes) at Varick Street locationwas consented to by the defendants.However, the dispute
of
granting access
to
VQlumes
33,
34,
35,
36,
37
and
38
atAdams Street was not resolved
at
the conference call. Because
of
the
late
evening andthe disclosed fact that defendants
’
attorney would
be
taking vacation on Saturday,August 28,2009, the Special Referee directed that plaintiffs continue and compete theirreview of volumes
Volumes
44,47
qnd
49,
SO,
51
and
52
at Varick Street location byMonday, August
24,2009,
close
of
business and that the issue
of
whether
a
review ofthe other volumes could be addressed in
an
emergency application, if plaintiffscounsel felt it would be wise.At approximately 7:30
A.M.,
on
Monday, August 24,2009,byemail communicationto the Court and defendants
’
attorney,
plaintiffs made such an application, that is,seeking to complete review
of
the remaining volumes at
the
Adams
Street location:
Volumes
33, 34,
35,
36, 37 and
38,
without extending the filing of the Bill ofParticulars due Friday, August 28,
2009.
The requestisthat the defendants makeavailable such volumes
and
that the same be reviewed at the
Adam
Street location inview
of
the number
of
terminals available
(20).
On
Monday, August 24,2009, at approximately
2:OO
P.M.,
the defendants’ attorney(temporarily assigned
while
Mr.
Kitzinger is on vacation),the plaintiffs’ attorney andthe Special Referee conference the emergency application.
The
defendants
’
attorneyobjects
to
the
extension for the same reasons as expressed
by
Stephen Kitzinger,
Esq.,
Asst., Corporation Counsel, at the Friday, August
2
1,
2009-conference call:
(1)
theAugust 7,2009-Order provided a cut off period for the review on Friday, August
2
1,
2009, and there was ample time to coinplete the review;
(2)the
absence
of
complaintsby plaintiffsofany problems with the facilities or stations
or
sites assigned to themduring
the
past week at the various locations;
(3)
personnel from the Clerk’s officecannot be stretched to more days
on
this matter
due
to budgetary problems;
(4)
that, ifgranted, any further extension be final and limited.
Supreme Court Records OnLine Library - page 2 of 3
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