SHORT FORM ORDER SUPREME COURT INDEX NO. :_25663/2010 STATE OF NEW YORK —_—L.A.S. PART 2 SUFFOLK COUNTY Present: ‘HOH. JOHN C. BIVOMR Justice aac ee nee en nen nen eens nee nn een k In the Matter of the Application of ELY V. CHAIMOWITZ, MARY MAGNIPICO, and MARIA RE~KILMARTIN, Citizen: objectors, Petitioners, ~ against - REGINA M. CALCATERRA, a candidate seeking the public office of State : Senator, First Senate District, County of Suffolk, State of New =: York, as a designee of the Democratic Paxty and the Working =: Families Party, and ANITA S. KATZ and CATHY L. RICHTER GEIER, as Commissioners of and constituting the Suffolk County Board of Elections. Respondents. Petitioners seek the following relief: PLIF'S/PET'S ATTY: LEVENTHAL AND SLINEY, LLP 15 Remsen Avenue Roslyn, N.¥. 11576 DEFT’S/RESP'S ATTY: STROOCK & STROOCK & LAVAM LLP 180 Maiden Lane New York, N.¥. 10038 GAIL M, COLTS, ESQ. Deputy County Attorney H. Lee Dennison Building 6 Floor 100 Vets. Memorial Highway PO Box 6100 Hauppauge, N.Y. 11788 1. Invalidating and declaring null and void the Democratic Party and Working Families Party designating petitions of the respondent-candidate for the public office of State Senator, First Senate District, County of Suffolk, State of New York; 2. Enjoining and restraining the Commissioners of the Suffolk County Board of Elections from placing the respondent-candidate’s name upon the official ballots in the primary election to be held on September 14, 2010.Re: Inthe Matter of the Application of Ely V. Chaimowitz, ¢t al v. Regina M. Calcaterra Page 2 Petitioners, voters registered to vote for the public office of State Senator, First Senate District, County of Suffolk, State of New York, filed written Objections with the Suffolk County Board of Elections objecting to the petitions designating respondent, Regina M. Calcaterra (the “respondent candidate”), as a candidate of the Democratic and Working Families Parties for the public office of State Senator, First Senate District, County of Suffolk, State of New York. Respondents, ANITA S. KATZ and CATHY L. RICHTER GEIER, were and are Commissioners of the Suffolk County Board of Elections, and constitute the Board of Elections of the County of Suffolk in the State of New York. On or about July 27, 2010, petitioners commenced the within proceeding by Order to Show Cause. Petitioners were ordered to serve the within Order to Show Cause and Verified Petition personally upon respondent on or before July 29, 2010, the date on which the relevant statute of limitations expired. On July 29, 2010, in an ex parte application, Justice Cavello of the Appellate Division of the Supreme Court, Second Department modified the Order to Show Cause, and ordered that “ail and mail” service may be effected on of before July 29°. Respondents scrved a Verified Answer in the instant proceeding, interposing several affirmative defenses, including that petitioners lacked standing in that the aforesaid Objections were not bona fide Objections within the meaning of the Rules of the Suffolk County Board of Elections or the law, and, therefore, petitioners had failed to satisfy a condition precedent to commence the within proceeding. Petitioners further argued that service was not proper ia chat mailing on the date the statute of limitations expires is not lawful or proper because a Court cannot extend a statute of limitation by including impermissible types of service in an order. itis petitioners’ contention that the requirement of “due diligence” was also not asked to be waived by petitioners, and it was not superseded or stricken by the Court. Accordingly, “pail and mail” service without a showing of due diligence should not be deemed proper service. Finally, on the merits, respondent-candidate also argues that petitioners have failed to reach their “heightened burden” by clear and convincing proof that respondent- candidate has not maintained her New York residency throughout the relevant period of time Petitioners claim that the respondent candidate's Democratic and WorkingRe: in the Matter of the Application of Ely V. Chaimowitz, et al v. Regina M. Calcaterra Page 3 Families Party designating petitions are defective for the following reasons: 8) The respondent-randidate fails to meet the constitutional qualifications for the public office of State Senator, First Senate District, County Suffolk, State of New York by reason of her failure to reside in the State of New York for a period of five years immediately preceding the general election scheduled to take place on November 2, 2010; b) The respondent-candidate fails to meet the statutory qualifications for the public office of State Senator, First Senate District, County of Suffolk, State of New York by reason of her failure to meet the constitutional qualifications for such public office (see, N.Y. Election Law §6-122); ©) The respondent-candidate knew or should have known of her failure to meet che constitutional and statutory qualifications for the public office of State Senator, First Senate District, County of Suffolk, State of New York by reason of her failure to reside in the State of New York for a period of five years immediately preceding the general election scheduled to take place on November 2, 2010; and 4) The designation petition is permeated with frand. A hearing was held on August 3, concluding on August 4, 2010. Respondent placed one (1) document in evidence and there were twenty-four (24) documents placed into evidence as joint exhibits. The Court received respondent's Pre Trial Memorandum of Law. The Court also received by facsimile the petitioners’ Post-Trial Memorandum of Law and the respondent-candidate's Post-Trial Memorandum of Law. Petitioner, Ely V. Chaimowitz, did not file Objections. As such, counsel for petitioners voluntarily withdrew that particular claim, without objection from opposing counsel. ‘The respondent's counsel called the process server, Victor Veleny, as a witness on the issue lack of proper service. Respondent-candidate, Regina M. Calcaterra, testified, Petitioners did not cross-examine the respondent-candidate. Counsel for both parties presented two stipulated facts, namely that respondent, ‘Ms, Calcaterra, was admitted to the New York Bar in 1997 and that she was admitted to the Pennsylvania Bar in 2004. The second stipulated fact was that Ms. Calcaterra joined the Philadelphia office of the Law Firm of Barrack, Rodos & Bacine in 2004. There was only a Philadelphia Office, and no New York office.Re: In the Matter of the Application of Ely V. Chaimowitz, et al v. Regina M, Calcaterra Page 4 STANDING According torespondent-candidates's counsel, petitioners lack standing because they failed to serve and file proper Specifications of Objections. It is argued that petitioners violated Suffolk County Board of Election Designating and Nominating Petition Guidelines and Requirements which provide that: “Objectors are wamed not to include in their specifications...claims which are not supported by documents filed with the Board. The Board may dismiss the objections in their entirety as frivolous if specifications include such claims.” The candidate contends that the petitioners’ Objections are “not supported by documents filed with the Board” and therefore, should be declared a auility. The Board of Elections did not dismiss the Objections and counsel urged this Court to dismiss ab initio those specifications. Although counsel explains that there is ample case law supporting the conclusion that the declaration of Objections is a nullity, conspicuously absent are any cases supporting this affirmative defense. The Board of Elections accepted the Objections and this Court finds no legal authority supporting dismissal. SERVICE Election Law §16-102 provides that: “A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the office or board with whom or which such petition was filed makes a determination of invalidity with respect to such petition, whichever is later...” ‘The process server, Victor Veleny, testified that he attempted to personally serve the candidate on July 27, 2010 from approximately 6:00 p.in. until approximately 10:15 p.m,,to ‘no avail. He left at 10:15 p.m. after the neighbors had called the police. ‘The following day, July 29, 2010, the petitioners’ counsel appeared before Appellate Division, Second Department, Associate Justice Covello. After consideration of counsel’s papers, including the affidavit of the process server, the ex parte application for substituted service was granted, modifying the Temporary Restraining Order of personal service pursuantto CPLR §308 (1) and permitting “nail and mail”, service using express mail rather than personal delivery. Respondents were duly served by “nail and mail” using express mail Counsel for the respondent-candidate argues that service was improper because the