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STATE OF NEW YORK COUNTY OF ERIE

SUPREME COURT PART 19

************************************X

In the Matter of the Application of


LYNN M. DEARMYER-LEE

Petitioner,
ORDER TO SHOW CAUSE
-vs- INDEX NO. 2019-00060

PETER A. REESE

ERIE COUNTY BOARD OF ELECTIONS


JEREMY ZELLNER and RALPH MOHR,
Commissioners of and Constituting
the Erie County Board of Elections

Respondents.

************************************X

Matter of PETER A. REESE

Petitioner,

ORDER TO SHOW CAUSE


-vs- INDEX NO. 2019-00071

ERIE COUNTY BOARD OF ELECTIONS


JEREMY ZELLNER, as Commissioner of the
Erie County Board of Elections and
RALPH MOHR, as Commissioner of
the Erie County Board of Elections

LYNN M. DEARMYER-LEE, Objector

Respondents.

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25 Delaware Avenue,
Buffalo, New York 14202
May 2, 2019
HELD BEFORE: HONORABLE CHRISTOPHER J. BURNS
SUPREME COURT JUSTICE

APPEARANCES: JESSICA KULPIT, ESQ.


BRITTANYLEE PENBERTHY, ESQ.
Appearing for Petitioner/Respondent
Lynn M. Dearmyer-Lee.

PETER A. REESE, ESQ., Pro Se


JAMES OSTROWSKI, ESQ., Of Counsel
Appearing for Respondent/Petitioner
Peter A. Reese

MICHAEL A. SIRAGUSA, ESQ.


ERIE COUNTY ATTORNEY
JEREMY C. TOTH, ESQ.
Second Assistant County Attorney
Appearing for the Erie County
Board of Elections

KIM M. BUCK
SUPREME COURT REPORTER
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1 THE COURT: Miss Kulpit.

2 MS. KULPIT: Good morning, Your Honor.

3 Jessica Kulpit on behalf of Miss Dearmyer-Lee. We are

4 here today on an election law civil proceeding that

5 commenced with the assignment of Your Honor on Order to

6 Show Cause Index Number 2019-60. Lynn Dearmyer-Lee

7 versus Peter Reese and Erie County Board of Elections.

8 I, along with Miss Brittany Penberthy, represent

9 Miss Dearmyer-Lee. Subsequent to the filing of the

10 Order to Show Cause, because we had not yet had a Board

11 ruling, Mr. Reese did file a Order to Show Cause

12 2019-71 thereby making him a petitioner and the Erie

13 County Board of Elections and Miss Dearmyer-Lee the

14 respondents. All responses have been filed, and if the

15 Court would like me to continue, I certainly can.

16 THE COURT: All right. Are there -- are

17 there parts of this that can be dealt with in a shorter

18 manner than others, specifically Mr. Toth's, or are

19 you --

20 MS. KULPIT: I have a suggestion, Judge.

21 THE COURT: -- are you confident in the order

22 of things here?

23 MS. KULPIT: Judge, we would leave it to the

24 sound discretion of how the Court would like to proceed

25 in this matter. Because at the time we filed our Order


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1 to Show Cause Index Number 60 we didn't have the

2 Board's findings.

3 THE COURT: Okay.

4 MS. KULPIT: I believe it would make the most

5 sense, and to be economical of the Court's time and

6 resources, if we handled Mr. Reese's petition or Order

7 to Show Cause first --

8 THE COURT: Okay.

9 MS. KULPIT: -- as the Board found him

10 delinquent with respect to signatures.

11 THE COURT: That's fine.

12 MR. REESE: Your Honor, with respect to that,

13 we're not really sure, we believe that the first

14 petition filed is now moot in view of the fact that the

15 Board invalidated the petition. It was filed as an

16 anticipatory in order for them to mark time on the

17 clock with a fourteen-day statute of limitations and we

18 believe that issue is now moot. It was filed on the

19 contingency that the Board would validate, the Board

20 did not. So I don't know that that matter is even

21 before the Court at this point in time or that it

22 should be.

23 THE COURT: What say you, is there any relief

24 that's available with regard to that issue?

25 MS. KULPIT: As that matter was still pending


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1 and we consented to the adjournment because Mr. Reese

2 indicated he would be filing a validation, I do not

3 believe it's a moot issue. If the Court were to hear

4 Mr. Reese's petition, and we certainly have reasons we

5 think the Court does not need to take witness or

6 testimony this morning, and find that there are a valid

7 number of signatures, absolutely the Order to Show

8 Cause is valid, specifically with the fraud allegations

9 that have been set forth as the Board will not

10 determine those. That has to be done in front of Your

11 Honor.

12 MR. TOTH: Your Honor, and I'll confirm that.

13 The Board makes no determination based on fraud with

14 respect to the invalidation proceeding and/or the

15 validation proceeding. I brought over, pursuant to

16 Your Honor's various orders, all of the original

17 documents including Mr. Reese's designating petition

18 and the objections that were reviewed. There are only

19 a handful of objections where my clients split, meaning

20 that Ralph Mohr reached one conclusion, Jeremy Zellner

21 reached another. I'm not particularly interested in

22 defending those splits or -- I mean, however Your Honor

23 wants to proceed on that, but these documents are here

24 in anticipation of Miss Kulpit's allegations on fraud.

25 THE COURT: Okay. Thank you.


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1 MR. REESE: Your Honor, if I may be heard on

2 the fraud. We want to move to dismiss any of the fraud

3 allegations as we state clearly in our papers it's a

4 very small number of fraud allegations. There's not

5 enough to make a difference with respect to this case

6 and under the law we need to get that out of the way.

7 It's just irrelevant at this point in time.

8 MS. KULPIT: Judge, absolutely not. I can't

9 disagree with Mr. Reese more. Although we specified

10 many of the fraud allegations giving them people's

11 names and addresses, and then cc'd as properly

12 indicated by the CPLR to Mr. Reese those subpoenas that

13 were sent. There are numerous fraud allegations that

14 are preserved, added and included in the petition from

15 the specific objections. So while we specified

16 multiple persons, and it absolutely can make a

17 difference if the Court were to somehow, and I do

18 not -- do not believe that you should, but somehow were

19 to find Mr. Reese have the valid number of signatures,

20 the fraud, even if it was line by line and with respect

21 to these specific witnesses, is so permeated throughout

22 it should --

23 THE COURT: Well, let's go back to the first

24 point for a minute. If signatures -- if a sufficient

25 number of signatures were disqualified, that really


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1 makes that argument irrelevant.

2 MS. KULPIT: Absolutely.

3 THE COURT: Now, and what your point is, I

4 think, that if for some reason the Court finds

5 differently then you would want that to regenerate and

6 be able to argue it.

7 MS. KULPIT: Which is why we have not

8 withdrawn the petition.

9 THE COURT: Okay. But right now I'm going to

10 just set that aside because for our purposes at quarter

11 to 10:00 it's not relevant.

12 MR. REESE: Understood. We accept that, Your

13 Honor. We would like to reserve opportunity for

14 further argument should it become relevant.

15 THE COURT: Sure. Fine.

16 MR. REESE: Understood.

17 THE COURT: Okay.

18 MS. KULPIT: Judge, then if the Court is

19 proceeding in the manner as I suggest and we would

20 defer to the Court, I would turn to index number

21 2017-71 which is Mr. Reese's Order to Show Cause. I

22 could certainly respond with why I believe the Court

23 should uphold the findings of the Board, reject the

24 other arguments, but if Mr. Reese wants to be heard

25 first as it is his order.


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1 THE COURT: Okay. Mr. Reese?

2 MR. REESE: Your Honor, with respect to Index

3 Number 71, which is our action to validate, at this

4 point in time I want to move for a default judgment

5 against the Board due to a defective verification. I

6 have a letter for the Court. This was delivered to

7 Mr. Toth via email and in court today. Mr. Toth has

8 failed to state why the verification is not being done

9 by a party as required by CPLR 3021. Mr. Toth made the

10 verification without being, quote, acquainted with the

11 facts per CPLR -- per the CPLR, Your Honor. Mr. Toth

12 purports to verify on information and belief based on

13 review of Board records that are not specified.

14 However, there are not factual allegations made on

15 information and belief so it -- the -- the verification

16 makes no sense. Mr. Toth can't possibly know the facts

17 that he alleges. For instance, he claims that none of

18 these objections were propounded at the Board. He's

19 not at the Board. He's with the county attorney's

20 office on the sixteenth floor as far as I know. I was

21 rather stunned to have him make the verification as a

22 non-party. I believe that his answer in this, his

23 verified answer is defective as a matter of law and we

24 received nothing so far that would correct that in any

25 manner, shape or form.


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1 MR. TOTH: Your Honor, I did receive

2 Mr. Reese's letter. 3020(d)2 allows verification by

3 anybody who's acquainted with the facts if the

4 respondent is a government official. In this case,

5 obviously where a government official is standard

6 practice in Article 78s for attorneys representing the

7 various agency to sign the verification. I don't think

8 Mr. Reese's argument has any merit, but if Your Honor

9 would, you know, would prefer a verification from

10 someone else, I can spend the day trying to figure out

11 who's most appropriate. I think the reason the CPLR

12 allows attorneys to verify on behalf of government

13 agencies is because often times the allegations are so

14 far afield and so widespread that it's difficult to

15 find one particular person who has all of the necessary

16 facts. I think that's why it says a person acquainted

17 with. And I am acquainted with it, because I have all

18 of the original documents right here. My answer is

19 based on these documents and then the other parts of my

20 answer are based on the law.

21 THE COURT: All right. I'm ruling that the

22 verification is sufficient.

23 MR. REESE: Your Honor, I'd also like to move

24 at this point for a summary judgment against both the

25 objector and the Board based on the implied admission


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1 that the purported specific objections which were made,

2 were made without examining actual records of the Board

3 which is a violation of the intent of the election law.

4 In addition to that, Your Honor, they have failed to

5 deny paragraphs twenty-eight, twenty-nine and thirty of

6 our petition which basically indicates that objections

7 made without access to Board records are intrinsically

8 defective. It makes no sense. If you object to

9 someone's signature without looking at it, all you're

10 doing is burdening the people and whoever is a

11 candidate with doing your job for you. And we'll get

12 into this further, but we literally had a snowstorm of

13 objections here, many of which we'll demonstrate via

14 sample and a witness are essentially frivolous. There

15 was no problem whatsoever finding these people. You

16 have a petition with a signature and an address by it.

17 Just because you can't read the squiggle signature of

18 someone doesn't mean that's not their signature. And

19 we'll show you a number of such, you know, signatures.

20 And there were situations where four, five and six

21 objections were filed to this and we found those voters

22 almost instantaneously, and the Board did too.

23 Furthermore, to make them without -- to make such

24 objections is essentially turning the statutory scheme

25 upside down. Our signatures are valid. I submitted


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1 twenty-one sixty-four. If there were no objections,

2 there were no objector, I'm on the ballot. Each and

3 every one of my signatures is presumed valid. It's up

4 to them to prove that they're not good, not me.

5 They're essentially attempting to reverse the burden of

6 proof here. This is totally unacceptable. It makes no

7 sense whatsoever. It puts an undue burden on me as

8 well as the people to clean up this junk and shovel

9 through stuff that as far as we know could have been

10 generated by a random number generator.

11 THE COURT: All right. Hang on. Response so

12 far.

13 MS. KULPIT: Judge, we believe that the

14 petition, our verified response is absolutely

15 sufficient. There's nothing in the CPLR or the

16 election law that requires somebody to go and review

17 Board signatures. We don't think that --

18 THE COURT: Well, your -- part of your

19 objection is that the signature on the petition doesn't

20 match the one that's registered, right?

21 MS. KULPIT: Correct, Your Honor.

22 THE COURT: Okay. So I think we can all

23 agree sometimes someone's signature is essentially a

24 horizontal line.

25 MS. KULPIT: Sure.


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1 THE COURT: All right. And we can all agree

2 that sometimes people print their signatures.

3 MS. KULPIT: And I would submit that printing

4 is not acceptable in this particular arena, but as a

5 general statement, Judge, I agree.

6 THE COURT: Okay. So how do you know if you

7 don't compare the two?

8 MS. KULPIT: One, Judge, if it's

9 unrecognizable and we can't figure out who it is or

10 what it is, then we certainly meet the objection.

11 THE COURT: Well, there's a printed name and

12 a signature, correct?

13 MS. KULPIT: No, there is no print. If you

14 look at the --

15 THE COURT: Some don't?

16 MS. KULPIT: There is no printed name ever on

17 a petition that should be considered by the Court and

18 it's certainly not print and then signed. But, Judge,

19 just to speed up the process, parties have access to

20 what's called VAN which is a paid subscription to have

21 the most recent voter info. It is absolutely a legal

22 process to use during campaigns and then it doesn't

23 require you to go to the Board. So the argument that

24 Mr. Reese is making is twofold. One, we were just

25 making it up, or two, we must have been, for lack of a


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1 better word, cheating or doing something unscrupulous.

2 THE COURT: Well, hang on.

3 MS. KULPIT: Neither occurred.

4 MR. REESE: Your Honor, that's not in the

5 pleadings.

6 THE COURT: Hold on. I misspoke. I didn't

7 mean to suggest that they're printed and signed. You

8 have an address, so you match up that --

9 MS. KULPIT: Right.

10 THE COURT: -- with whatever records you

11 have.

12 MS. KULPIT: Correct. And we didn't plead it

13 because we don't believe Mr. Reese has even made an

14 argument why the signatures should go back on. His

15 argument here today of burden shifting is inaccurate.

16 We made specific objections. If you go through,

17 there's a hundred and forty-four pages, two thousand,

18 one hundred and sixty-four signatures were scrupulously

19 reviewed.

20 THE COURT: I looked at every one of them

21 actually.

22 MS. KULPIT: And so you can see, Your Honor,

23 we made specific objections. We didn't take line one

24 through twenty or page one through sixty and put down

25 all twenty-five acceptable objections. We did it line


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1 by line, modifying, agreeing on many of the pages. Not

2 objecting to each and every one of them.

3 THE COURT: Mr. Reese, doesn't it come down

4 to showing a hundred and sixty-seven valid signatures?

5 MR. REESE: Actually, Your Honor, our main

6 thrust in our papers is that the objections are not

7 that valid in any manner. In fact, what we -- what we

8 have pled is that there is no objection here,

9 therefore, we have twenty-one sixty-four valid. That's

10 the thrust of our case, excuse me. And I -- I hasten

11 to add that the VAN system has never shown up in this

12 proceeding. It didn't show up at the Board of

13 Elections. It hasn't showed up in their pleadings.

14 Now suddenly we have the VAN system. If she believes

15 that the VAN system would enable them to actually

16 verify the statements they made in their papers, at one

17 point I believe they say, oh, four hundred and

18 eighty-seven signatures didn't match the voter

19 registration cards. Not four hundred and eighty-six,

20 not four hundred and eighty-eight. Four hundred and

21 eighty-seven. That's a verified petition of the

22 petitioner in the first action, the 60 action, the

23 petition to invalidate. If that's true, let them

24 demonstrate that they actually did that and that they

25 did something. That's why we've subpoenaed the


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1 objector. We need to find out just how this did get

2 done, because it looked like black magic to us. No one

3 went to the Board of Elections to look up anything as

4 we were required to. And they've never -- this is the

5 first time right now that this has been brought up.

6 MS. KULPIT: Absolutely not, Judge. I am

7 under no obligation, nor is the objector or anybody

8 else to tell another party how something is done. We

9 went into the Board, the Board made the determination.

10 We're asking the Court to uphold that determination and

11 we're here today because Mr. Reese is deficient of a

12 hundred and sixty-seven signatures. There's nothing in

13 the CPLR or the election law that says tell your

14 opponent how you did it, and that's what he's

15 suggesting here.

16 THE COURT: Mr. Toth?

17 MR. TOTH: Your Honor, just I have also

18 brought with me various other documents, original

19 documents that were part of your subpoena. This is

20 the -- these are the FOIL records that were pulled that

21 on their face appear to have something to do with

22 Mr. Reese's allegations. Thinking that we may have

23 missed some, because they're not all clear, I brought

24 over every FOIL request that we received for the last,

25 I think it began in mid March.


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1 THE COURT: Okay.

2 MR. TOTH: So I believe, though I don't know,

3 but I believe perhaps the answers are in here, but we

4 don't require people to tell us why it is they want

5 something. We're not allowed to, really. We just give

6 them the documents. So it's entirely possible,

7 probably even likely that the conspiracy theory where

8 the Board helped Miss Kulpit's client is actually

9 probably somehow answerable by one of these pieces of

10 paper.

11 THE COURT: Okay.

12 MR. REESE: Your Honor, again, it's burden

13 shifting here. If they -- if they felt that their

14 objections were good, the burden is on them to

15 demonstrate it, not me.

16 MR. TOTH: Your Honor, if I could just say

17 one more thing on that and I meant to say it, is that

18 this is a validation proceeding so the burden actually

19 is on Mr. Reese, not on anybody else.

20 THE COURT: Hm-hm.

21 MR. REESE: Your Honor, finally, if I may, to

22 continue on.

23 THE COURT: Well, let me ask you a quick

24 question. I think you made the point that, let's say

25 there were multiple objections to one particular


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1 signature and you found that to be improper somehow I

2 think.

3 MR. REESE: Well, Your Honor, it's just

4 essentially throwing darts at a board. And we can give

5 you examples of that where -- I mean, it was very easy

6 to find a signature. It's hard to believe that anyone

7 who had access to signatures or addresses of these

8 people could not find them, and we will give you some

9 illustrations of that. We may need access to --

10 THE COURT: Well, it's in your papers. I

11 guess my point is, it's perfectly possible, is it not,

12 to have one, two and maybe three objections to any

13 particular line?

14 MR. REESE: Well, they could well be, Your

15 Honor, but we, in many cases we ran into the situation

16 where there were multiple objections, four, five and

17 six and none of them held true. We found the person

18 right away. And of course many of these multiple, you

19 know, objection signatures were rejected by the Board

20 itself. Hundreds and hundreds of them. I mean, I

21 think this is a demonstration as to just -- just what a

22 dartboard approach this was.

23 THE COURT: Okay. Miss Kulpit?

24 MS. KULPIT: Judge, in response to that, I

25 would just reiterate that we're here because Mr. Reese


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1 has the burden to prove that he has a valid number of

2 signatures, not because I need to say that what the

3 Board did below was proper, and we submit it was. But,

4 two, Mr. Reese has not pled in his Order to Show Cause

5 or asked this Court to review line by line this

6 petition or revalidate any of the signatures.

7 THE COURT: Okay. Well, that -- that

8 revisits my prior question. Are there a hundred and

9 sixty-seven valid signatures?

10 MR. REESE: Your Honor, we have not pled

11 that, because we don't think the objection is good.

12 We've not asked the Court to do that, because we

13 believe our argument is good on the law and the facts

14 with respect to the objections. We are not going to

15 ask this Court to do a line-by-line review.

16 THE COURT: Okay.

17 MS. KULPIT: We'd ask the Court uphold the

18 Board's finding. The petitioner has not brought any

19 specific or sufficient evidence before Your Honor to

20 indicate the allegations he's making today and there is

21 no further need for testimony or witnesses.

22 THE COURT: Any further issues?

23 MR. REESE: Your Honor, I haven't -- I

24 haven't completed my summary judgment argument for the

25 record here.
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1 THE COURT: Go ahead.

2 MR. REESE: I would also like to point out in

3 our petition, paragraph thirty, we lay out categories

4 of objections that cannot be made without access to

5 Board records or some other system which they seem to

6 have magically brought up here that could give us this

7 information. This would include, for instance, a 5(a)

8 objection of persons whose signatures are not

9 identifiable. I won't read them all, but another one

10 is 8(a) of persons whose names are hand printed. For

11 the record, the Board was accepting hand printed names

12 when the printing on the full voter registration card

13 seemed to match the signatures that were, you know,

14 seemed to match the printing on the petition. Easier

15 to demonstrate this than anything else.

16 THE COURT: Well, that was my previous

17 question. There are different signature styles,

18 correct?

19 MR. REESE: Well, correct, but --

20 THE COURT: Correct?

21 MS. KULPIT: Sure.

22 THE COURT: And it may or may not match the

23 registration that the Board has.

24 MR. REESE: Your Honor, the Board

25 registration card, and if you'll give me a second I


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1 could demonstrate that or perhaps we can get into it

2 further in other testimony. The Board registration

3 card, generally people print their name, their address,

4 whatever else they put down on it and then they sign

5 their name at the bottom. Now, if they print their

6 name at the bottom in the signature line, that's their

7 signature. Obviously a person's signature is whatever

8 they say it is. Typically people sign in script at the

9 bottom. But the Board, in the review of this petition

10 and from what I can see review of other petition

11 processes this year, was effectively saying, well,

12 let's see the full registration card.

13 Let me add one other thing. What we can see at

14 the user work stations at the Board is different from

15 what the Board employees can see, all right, that's a

16 major point. I can't see the full voter registration

17 card at the user work stations, what's available to me.

18 That's only available to Board employees. And at the

19 hearing of the matter, the Board employees could pull

20 up an image of the full registration card. At the work

21 stations all I can see is a clipped image at the bottom

22 of the person's signature. None of the other

23 information is available. So if I'm working at a work

24 station and I see a script signature and something's

25 printed, it's not possible for me to verify that that


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1 was their signature until I get access to the Board

2 system. Now, we had access to the Board system at the

3 hearing in this matter, which took place over the

4 course of two days, and at that point in time many

5 signatures were validated by the Board because the

6 printing on the card obviously matched what the printed

7 signature was. And, again, people don't sign their

8 name the same way ever. I've never signed my name

9 twice. I'm not a machine. I can't do it. And many

10 people's signatures just aren't recognizable. That's

11 all there is to it. Mine tends to be but many people's

12 aren't. We have one witness who essentially did a

13 starburst, and, you know, there's no way you can say,

14 oh, that's a bad -- that's a bad signature without

15 looking at a record somewhere to see what that person's

16 actual signature is, unless you're just going in the

17 dark and say I can't recognize it so it can't be their

18 signature. That's not good enough for a specific

19 objection.

20 THE COURT: Let Miss Kulpit respond.

21 MS. KULPIT: Your Honor, I think we're going

22 round and round here making two separate arguments. I

23 think Mr. Reese has just demonstrated the time and

24 consideration that the Board gave each and every line

25 of this hundred and forty-four pages of every single


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1 two thousand, one hundred and sixty-four signatures.

2 He has put on the record how they have scrupulously

3 went through each and every one of them. Again, I

4 would reiterate my argument that it's not my burden, it

5 is not required under the CPLR, the election law, or

6 this Order to Show Cause to tell you how I did it. The

7 objections are specific. They have not pointed to

8 anything within the law that in conclusory allegations

9 that we didn't do it right and they're too broad. He

10 did get back some of those signatures at the Board over

11 our objection.

12 THE COURT: Okay. So it brings us full

13 circle then, because you've already had a proceeding at

14 the Board, you've already gone through the signatures

15 and they have determined that you're short. So where

16 are the valid signatures that puts you over the top?

17 MR. REESE: Your Honor, if we throw the

18 objection out I'm on the ballot. There was one case

19 for the school board --

20 THE COURT: What if we don't?

21 MR. REESE: Well, if we don't, then I'm done

22 and we can think about appealing, Your Honor. We have

23 to make our legal arguments and bring in witnesses and

24 have a record here.

25 THE COURT: But do you have any specifics as


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1 to how many signatures you claim besides the couple

2 thousand?

3 MR. REESE: Twenty-one sixty-four I claim,

4 Your Honor.

5 THE COURT: Okay.

6 MR. REESE: I mean, that's -- that's

7 essentially our allegation. If there were no objection

8 we'd have twenty-one sixty-four. Now, Your Honor --

9 THE COURT: Let's presume there are

10 objections and you need a hundred and sixty-seven

11 signatures. Let's presume that for a second.

12 MR. REESE: Well, Your Honor, I would like to

13 respond to Miss Kulpit. First off, they laid a burden

14 on the Board to shovel through all of this and find

15 things that is not appropriate. The objections have to

16 be specific. I believe this is a case of first

17 impression in terms of definitions. And if we want to

18 talk about definitions of what's specific, probably not

19 a bad idea to go somewhere -- and I apologize for my

20 froggy throat. We can look in the dictionary or we can

21 look at Black's Law. But specific essentially is

22 defined as particular, specified, certain, fixed, set,

23 determined, distinct, separate, definite, precise.

24 Under Black's Law -- that's the general dictionary.

25 Under Black's Law, precisely formulated or restricted,


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1 definite, explicit, of an exact or particular nature.

2 That's essentially what Black's Law tells us. We don't

3 have any other guidance because we have no case law.

4 What does it take to make somebody a specific

5 objection. And as far as I'm concerned it's not just

6 darts thrown at a board. Now, the mechanics of this

7 are different also. I get served with specific

8 objections and we went down and did a random sample of

9 ten and thought that most of it was sewage. We did not

10 have the resources to go through and shovel all of this

11 nonsense out of the way. We had to wait for the Board.

12 And when they gave us worksheets that actually told us

13 how many they could find, we didn't need to go get

14 those, and we then could concentrate on the things that

15 the Board could not find, and we found many of those.

16 So there is no reason why I or the Board should have

17 the burden of shoveling through the nonsense that they

18 filed here. What we're saying is that this was not a

19 specific objection within the meaning of the law or the

20 meaning of words.

21 THE COURT: I understand your position.

22 Mr. Toth?

23 MR. TOTH: Your Honor, on behalf of the Board

24 this is exactly how objections have always been done.

25 A signature of somebody who lives outside of the


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1 district that we're talking about, who is not

2 registered in the party that we're talking about, and

3 maybe isn't registered at all, that would generate

4 three objections. And the smart objector, not wanting

5 to lose jurisdiction in a Court like this, raises all

6 three objections to preserve any Court action. There's

7 no case law supporting anything that Mr. Reese is

8 saying. There's no case law that --

9 THE COURT: Now, it's possible that two out

10 of the three objections are disallowed. That doesn't

11 make it a scattergun approach necessarily.

12 MR. REESE: I think we can demonstrate that

13 it is a scattergun approach, Your Honor. And what

14 Mr. Toth just said, that's why we're here. Yes, it has

15 been going on for years. The machine always attacks

16 people who are challenging it with boatloads of

17 objections of this variety. That's what's been going

18 on, it's been happening for years and we believe it's

19 time for it to stop. That's why we're here arguing

20 this today.

21 If I might, just -- we have another motion for

22 summary against objector and Board based on objector's

23 admissions of using Board records unavailable to the

24 public. Now, when we made out these notes reviewing

25 their responses yesterday, we thought that was true.


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1 This may or may not be true at this point in time

2 because suddenly we're being told they have a magic

3 system.

4 MS. KULPIT: And if I may respond, Your

5 Honor.

6 MR. REESE: Yes, and by the way, the

7 existence of that system, if Miss Kulpit wants to be

8 sworn and give testimony with respect to it, we'll be

9 only too happy to do that, but, you know, this is a

10 mystery to us, okay. We do not see how this could

11 happen without having had access to Board records. And

12 I would like to note that they have failed to deny,

13 both the objector and the Board, paragraphs forty-two,

14 forty-three, forty-four, forty-five, forty-six and

15 forty-eight of our verified petition. And they do not

16 even have a general objection, or excuse me, a general

17 denial here in their papers. They're basically

18 pointing to this, that and the other thing and saying

19 oh, no, I don't have -- there's no iota of proof that

20 shows that I have fifteen hundred signatures. There

21 doesn't have to be an iota of proof. The iota of proof

22 is that I filed twenty-one sixty-four. It's up to them

23 to demonstrate on what we wish to challenge here today

24 is the validity of their objections compounded by

25 someone, purportedly an objector who filed them, and


27

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1 that's what we expect to get testimony on and evidence

2 from on witnesses, Your Honor.

3 THE COURT: All right. I'm going to let

4 Miss Kulpit and Mr. Toth respond.

5 MS. KULPIT: Judge, I'll be brief unless the

6 Court would like a lengthy response.

7 THE COURT: I don't penalize for brevity, you

8 know that.

9 MS. KULPIT: The thing that Mr. Reese just

10 put on the record is the problem with his petitions.

11 We thought. We assumed. You have to file an Order to

12 Show Cause with some credible reasonable evidence to be

13 heard in this Court. He said, well, we're just going

14 to make it up and then we're going to waste the Court's

15 time and effort and put on witnesses so that we can

16 follow any theory we would like. Again, I am under no

17 obligation to tell him how we did it. The objector --

18 and I just would draw the Court's attention to the

19 specificity of the objection argument. If you look at

20 our first Order to Show Cause and go to Exhibit C, page

21 one, he has twenty signatures. We only objected to

22 five. That is how slow and meticulous and scrupulous

23 we went through.

24 THE COURT: Mr. Toth, do you want to add

25 anything?
28

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1 MR. TOTH: Our papers, unless you have any

2 other questions, Your Honor, we ask that the validation

3 proceeding be dismissed. I do want to say for the

4 record, and I failed to mention this, that also we

5 brought over the original documents of who signed out

6 the public computers at the Board of Elections. Again,

7 not knowing which ones may or may not apply, we brought

8 the entire -- the entire record. And I'd also like to

9 point out that both commissioners are here pursuant to

10 Your Honor's subpoena.

11 THE COURT: Mr. Reese, Mr. Ostrowski?

12 MR. OSTROWSKI: Judge, if I could just pick

13 up, because we've been tag-teaming this --

14 THE COURT: Yes.

15 MR. OSTROWSKI: -- all along. And

16 continuing, I just have to say, I'm co-counsel. I

17 don't know what the VAN system is. I don't even know

18 what that word means. Am I pronouncing it correctly,

19 the VAN system? I don't know what we're talking about

20 here. This is all new.

21 MR. TOTH: Just so the record's clear and

22 then Mr. Ostrowski, the VAN System is not a public

23 system. So I don't have any specific -- I mean, I kind

24 of know what it is, but it's not a public system.

25 THE COURT: Internal mechanism at the Board?


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1 MS. KULPIT: It has nothing to do with the

2 Board, Judge.

3 THE COURT: It's an outside vendor?

4 MS. KULPIT: It's a private vendor that you

5 pay for.

6 THE COURT: Okay.

7 MR. OSTROWSKI: This is all -- this is all

8 unsworn testimony by counsel supplementing pleadings.

9 I just want to point that out.

10 So continuing the motion for summary judgment,

11 the -- the objections, and again, just to be super

12 clear with the Court, no case has ever defined specific

13 objections in the State of New York. And this, the

14 specific objections are used to object to candidacies

15 throughout the state, is done every year. We all know

16 this, you've had many election law cases and we have

17 too. This is a statewide system that has been going on

18 from time immemorial and no Court has ever defined what

19 a specific objection is. So to break that down, as I

20 understand our adversaries' position here, I think

21 they're saying that part of the definition of a

22 specific objection in the election law allows you to

23 make objections without looking at Board records. Now,

24 just as somebody who's been doing election law work

25 many years, before I even went to law school, I've


30

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1 never heard of this. I think it's preposterous. I

2 think it's nuts as the general said in World War II. I

3 can't believe that they're asking the Court to say a

4 specific objection to a signature on a petition, and

5 you don't even have to look at the actual records, you

6 can use some sort of a computer list.

7 Now, furthermore, Your Honor, to break it down

8 further, I think that -- this is what I'm hearing our

9 adversaries asking the Court to say, that when somebody

10 files, and hundreds -- and we have it in the petition,

11 we'll get into more specifics if we have the

12 opportunity -- hundreds of multiple objections were

13 denied by the Board. And I think it's fair to say some

14 of them with minimal effort. So, what does that mean?

15 That I think every time you have a signature where

16 there was multiple objections where either the Board or

17 our -- or Mr. Reese's staff was able to fairly easily

18 say, well, this is a good objection; those are totally

19 frivolous objections. So I think what they're asking

20 the Court to say is that in filing multiple objections

21 to a signature and doing this for hundreds and hundreds

22 of signatures, that's okay. There's no consequence to

23 that. There's no cost to that. And, therefore -- as

24 Mr. Reese was chatting in the car this morning, as an

25 engineer he said something that was really interesting


31

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1 to me; that he could do a random generation of

2 objections and just randomly file objections. And as I

3 understand counsel's position, counsel's asking the

4 Court to say that's okay. I think that's outrageous.

5 And this is what's -- this is one of the reasons why

6 New York State has a lack of competitive elections.

7 This is statewide and been doing it for decades.

8 So I just want to make -- so part of our point is,

9 it's not a specific objection. And if you look at the

10 record I think there's really no dispute about this, we

11 counted fourteen hundred and ninety-five net

12 objections, in other words, how many signatures are you

13 objecting to. Gross means total number of objections

14 and so on. The Board rejected six hundred and

15 sixty-three of these. So that's not -- that's not

16 specific when they're making hundreds of objections

17 which are easily through -- but it takes taxpayer

18 money, and as Mr. Reese said we're shifting the burden

19 of proof. Those aren't specific. It's not -- it's not

20 rocket science, Your Honor. You're familiar with

21 election law cases, I am, Mr. Reese is. It's not all

22 that hard to look at a signature and say this is valid

23 or it's not valid. Time consuming, yes.

24 Intellectually difficult, no. So if there's hundreds

25 of signatures where there's multiple objections, easily


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1 from an intellectual mental process point of view, not

2 that hard. That's not specific, Your Honor, that's

3 general. General means Mr. Reese is running for county

4 executive.

5 So, again, we have the figures of -- I don't have

6 the -- our figure in the petition, fifty-three -- five

7 thousand, three hundred and ninety-eight, like, gross

8 objections, hundreds if not thousands, we don't have

9 the exact number of those that were rejected, but we

10 can supply that. And, again, the answers of both

11 counsel, I'm not familiar, I've been practicing law

12 for, I don't know, thirty-five years, maybe thirty six,

13 I don't understand their pleading. I've got -- what I

14 go on is old reliable CPLR 3018 that says that you

15 got -- basically says you got to deny specific

16 paragraphs and if you don't deny it it's admitted. So

17 this is really important what we've gone through,

18 Mr. Reese and I continuing, there's no denial of

19 paragraphs twenty-six and twenty-seven which I won't

20 bother to read them, the Court has them. They're

21 absolutely vital to our case, and there's no denial

22 and, therefore, the Court shouldn't waste any further

23 judicial resources and should grant summary judgment

24 because they're not denying our facts. The Court just

25 has to make a legal ruling. So I think that pretty


33

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1 much completes our motions for summary judgment at this

2 point.

3 THE COURT: Okay.

4 MS. KULPIT: Judge, would you like a

5 response? Just with respect to that we didn't

6 specifically deny paragraphs, I draw the Court's

7 attention to subsection four, twenty-one through

8 twenty-three. If you say things four different ways,

9 we can use a single sentence to deny it. The

10 respondent-objector Lynn Dearmyer-Lee was never

11 improperly aided by the Board. It goes to every

12 assertion they're making, the same response. We have

13 sufficiently denied each and every objection.

14 THE COURT: Okay.

15 MR. OSTROWSKI: On that, that's not one of

16 the points that we said that they failed to deny, but I

17 think we did say they failed to deny the section

18 where -- in their original petition where they appear

19 to admit that they had access to Board records. And

20 now their position seems to be we don't have to have

21 access to any records, we can do anything we want. So

22 there is that contradiction there that I think the

23 Court has to grapple with in hearing two different

24 things from the same party in two different pleadings.

25 THE COURT: Next issue. Anything else?


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1 MS. KULPIT: Judge, we would ask you to deny

2 the petitioner's petition and Index Number 71 as he has

3 failed to set any sufficient basis that would indicate

4 he has the valid number of signatures. And further has

5 indicated through argument here this morning, all of

6 the time and effort the Board of Elections spent in

7 reviewing each and every one of these signatures over

8 two days, providing him access to any information he

9 needed, we'd ask the Court to uphold the Board's

10 finding that Mr. Reese was insufficient with

11 signatures.

12 THE COURT: Any concluding remarks?

13 MR. OSTROWSKI: Judge, that just -- that's

14 our argument. I always enjoy when the other side makes

15 our argument. Our argument is that these frivolous

16 general objections, which are not within the

17 contemplation of the election law, it is done every

18 year and it's kind of a secret handshake thing that we

19 finally are trying to expose it here in the courts and

20 get a ruling. They've shifted the burden of proof.

21 There's no doubt that the taxpayers of Erie County

22 spent a lot of money and hired a lot of people and paid

23 their benefits so they could go over and go through

24 these sloppy general objections and actually get down

25 to a more realistic number of signatures. So they're


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1 making our argument, Your Honor.

2 THE COURT: Okay. I'm going to write on this

3 and I'll get a decision to you quickly.

4 MS. KULPIT: Judge, and we are requesting if

5 the Court were to deny Mr. Reese's petition, that it

6 prohibits him from appearing on the ballot in the

7 primary on June 25th.

8 MR. REESE: Your Honor, we have a number of

9 witnesses today. How would you suggest we proceed with

10 that?

11 THE COURT: All right.

12 MR. OSTROWSKI: I just have a related

13 question, Your Honor. I don't know how the Court's

14 going to rule, but can we have an opportunity to make

15 an offer of proof if the Court is going to deny?

16 THE COURT: Yes, of course. Of course.

17 MR. OSTROWSKI: And at what point would that

18 be appropriate after the Court's --

19 THE COURT: As soon as you can.

20 MR. OSTROWSKI: Do you want us to do that

21 right now, Your Honor?

22 THE COURT: No.

23 MR. OSTROWSKI: Because I don't know what the

24 Court's going to do.

25 THE COURT: Well, I don't either yet. So I'm


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1 going to give you the opportunity to put forth whatever

2 you think is relevant.

3 MR. OSTROWSKI: After the Court's decision?

4 THE COURT: If you want to do it now, go

5 ahead. I mean, it's up to you. If you -- you know,

6 before I make a final decision certainly I need to know

7 everything you want to say.

8 MR. OSTROWSKI: Would the Court suggest that

9 we do that with testimony, because I -- we were

10 prepared to put on testimony, but I just -- I don't

11 know what the Court's wishes are, or we could do an

12 oral offer of proof.

13 THE COURT: Seems to me an offer of proof

14 would make more sense, more efficient, but I'll leave

15 it to you.

16 MR. OSTROWSKI: Could we just have a moment

17 outside to consult?

18 THE COURT: Sure. Sure.

19 (Whereupon, a discussion off the

20 record was held)

21 THE COURT: With regard to the commissioners,

22 thank you for being here. I don't know whether you can

23 add anything to this. I appreciate you being here, but

24 if your role is simply as observers here, then I'll

25 leave it to the parties, but I have no objection if you


37

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1 get back to work.

2 MR. TOTH: Your Honor, I mean, it's your

3 subpoena. They're here because of your subpoena so if

4 you're releasing them --

5 THE COURT: I know that.

6 MR. TOTH: Okay.

7 THE COURT: That's my point.

8 MR. TOTH: Okay.

9 THE COURT: I want to make sure that no one

10 has any extraneous issues that I might have to address

11 to you, but if not, I certainly would release you.

12 MR. TOTH: Okay.

13 THE COURT: We'll take a short recess.

14 (Whereupon, a brief recess was held)

15 MR. REESE: Your Honor?

16 THE COURT: Go ahead.

17 MR. REESE: With respect to offer of proof, I

18 was able to speak to an expert on the phone who

19 informed me, this is a person who is familiar with the

20 VAN system, he's not available today obviously, that I

21 could bring him as an expert witness, and he indicates

22 to me that the VAN system does not have voter

23 signatures in it, which gets me back to paragraph

24 thirty, the six things that you can't object to based

25 on not seeing signatures. So this -- this private


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1 system that this individual is familiar with does not

2 have those signatures. I've got voter lists on my

3 computer right here that won't enable me, it's just,

4 you know, digital -- this is this person, this is their

5 name, their address, their age, their date of birth,

6 when they voted.

7 THE COURT: Your main point is the entire

8 process is -- is not valid because they're wholesale

9 objections that are general objections that may or may

10 not have any validity, and the whole process should be

11 disallowed, therefore, your signatures should be

12 validated?

13 MR. REESE: Well, yes, Your Honor. We want

14 to throw out the objection as general and not specific

15 in any way under the law. But as an offer of proof, if

16 Your Honor's willing to adjourn, perhaps I can bring

17 this expert in, because now we're -- now -- I mean, the

18 VAN system, which Miss Kulpit has testified to here

19 today for the first time, never showed up in their

20 papers, suddenly is the source of all the information

21 they didn't get from the Board because they never got

22 it from the Board. That's what the record shows. And

23 if that magical system, the VAN system, doesn't contain

24 this information that they're supposed to have, my

25 guess is the VAN system's got the same thing that you
39

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1 and I can get from the Board. And for us to get copies

2 of printed signatures, as far as I know you have to

3 FOIL them. That's twenty-five cents apiece. That's a

4 lot.

5 THE COURT: Mr. Toth brought information --

6 MR. TOTH: As I explained earlier and --

7 THE COURT: -- pursuant to the FOIL request.

8 MR. TOTH: -- Mr. Ostrowski has just reviewed

9 it quickly. This is every FOIL request that we

10 received over the last, I don't know, five or six

11 weeks. I suspect, though, you know, I can't say with

12 certainty, but I suspect that the answer that Mr. Reese

13 is asking for is one of these people probably FOIL-ed

14 some signature cards. And that's it. And, you know, I

15 don't know how to prove that and I don't know why it's

16 our burden --

17 THE COURT: I understand.

18 MR. TOTH: -- to prove that.

19 MR. REESE: Your Honor, that just -- that's

20 categorically not true. What we saw, we FOIL-ed the

21 FOIL logs and what was actually supposedly received.

22 There was seven dollars and seventy-five cents paid by

23 the Erie County Democratic Committee for signatures,

24 that would add up to thirty-one signatures, and my

25 guess is, and it's only a guess without having witness


40

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1 testimony, that was the signatures of perhaps

2 thirty-one witnesses who appeared on my petition.

3 That's not enough to do line by lines on the voters.

4 And most of the analyses that we've done, and we've

5 come up with substantial tables, et cetera, are

6 numbers -- our number of fifty-three ninety-eight

7 objections actually made are to the line by lines, that

8 isn't even to the witness statements.

9 THE COURT: It's in the papers.

10 MR. REESE: There's no way in the world that

11 they FOIL-ed the signatures of twenty-one hundred and

12 sixty-four people. It just didn't happen. And that's

13 not available anywhere in the real world outside the

14 Board of Elections as far as we know. And it's

15 certainly not in the magical VAN system.

16 THE COURT: Miss Kulpit, do you want to

17 respond at all?

18 MS. KULPIT: Judge, this is a validation

19 proceeding. It should be limited to the hundred and

20 sixty-seven signatures. He's making -- everything

21 Mr. Reese is saying has absolutely no proof attached.

22 THE COURT: Are there a hundred and

23 sixty-seven valid signatures?

24 MR. REESE: I don't know at this time, Your

25 Honor, all right, but that is not our intention. It's


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1 been very clear --

2 THE COURT: I know it's not your argument.

3 I'm just asking if you're prepared to tell me that you

4 have a hundred and sixty-seven valid signatures.

5 MR. REESE: No, I can't at this time tell you

6 that, Your Honor.

7 THE COURT: Okay.

8 MR. REESE: However -- well, if you're done,

9 Your Honor, one thing we do need to do is move a bunch

10 of things into evidence.

11 THE COURT: Go ahead.

12 MR. REESE: We would like to move into

13 evidence all of the pleadings from the Index Number 60

14 as well as 71, my petition, the objection -- specific

15 objections from the Board, the Board worksheets, all of

16 the FOIL materials including the logs of who FOIL-ed

17 and what they received.

18 THE COURT: Any objection to any of that?

19 MR. TOTH: No, although it's always -- it's

20 always a little tricky to get the original stuff to the

21 Fourth Department, but I'm happy to do that. I don't

22 know --

23 THE COURT: I will personally guarantee it

24 will be safeguarded and returned forthwith.

25 MR. TOTH: Okay.


42

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1 MS. KULPIT: No objection. Most of what

2 Mr. Reese has requested is clearly --

3 THE COURT: Okay.

4 MR. TOTH: I will say, Your Honor, I had

5 another matter earlier this week. Judge Bannister,

6 which is also probably going up on appeal, just

7 stipulated that those documents were in the record and

8 they are still in my possession. I don't know if one

9 process is right or wrong. That's just the way she did

10 it.

11 THE COURT: Well, let me have them and if I

12 find in a short period of time that I don't need them

13 anymore I will return them to your custody and if I

14 need them back I can always get them.

15 MR. TOTH: Okay.

16 MR. REESE: Your Honor, with respect to -- so

17 I -- are those admitted into evidence?

18 THE COURT: Yes.

19 MR. REESE: With respect to our offer of

20 proof, I would like to put on the record that we are

21 prepared to put Mr. Ricchiazzi on the stand. He has

22 worked with us in examining these petitions and we went

23 over yesterday and went through a number in the first

24 twenty pages as an example of what we believe were

25 clearly frivolous objections, multiple -- multiple --


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1 THE COURT: Can't I determine that?

2 MR. REESE: Hm?

3 THE COURT: Can't I determine that? It's in

4 your papers.

5 MR. REESE: Well, we just -- we just want to

6 offer this as an example.

7 THE COURT: Can you just give me an offer of

8 proof?

9 MR. REESE: No, I can't do it without Board

10 records. In fact, the Court probably needs to go to

11 the work stations to see what one can see and how easy

12 it can be done. All right. What I'm saying, Your

13 Honor, as part of my offer of proof would be a visit to

14 the Board to work on the work stations and show you --

15 THE COURT: I'm not going to the Board.

16 MR. REESE: -- how easy it is to find these.

17 THE COURT: I'm not going to the Board.

18 MR. REESE: Well, that is part of my offer of

19 proof, Your Honor. In addition to that, Mr. Ricchiazzi

20 and I worked on a database whereby we essentially for

21 every page and line worked out the number of

22 objections. This is what we've gotten our totals from.

23 We've got a five-page document here that details this.

24 This is only the line by lines. This is a scattershot.

25 This is something we would have offered into evidence


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1 if -- or could offer into evidence if the Court wants

2 us to do this, and this is the document that I

3 described to Mr. Ostrowski as something that I could

4 generate at random and next year we can file an

5 objection to someone's petition with a random number

6 generator saying how many objections we're going to

7 have to what line and page of a petition. And I could

8 generate a thousand different --

9 THE COURT: How is that possibly relevant to

10 what we're talking about?

11 MR. REESE: Well, Your Honor, what I'm saying

12 is that effectively what we have is something that

13 could have been generated by a machine just throwing

14 darts at a board.

15 THE COURT: I get that argument. I'll decide

16 whether it's valid or not. I don't see why you need

17 testimony.

18 MR. REESE: Well, I think it would be

19 instructive for the Court to see what the process is

20 and the difference between what is available to Board

21 personnel in terms of seeing the full voter card as

22 opposed to us just seeing the signature card.

23 THE COURT: Did you see the full card at the

24 proceeding with the Board?

25 MR. REESE: When we -- when it was


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1 appropriate we were allowed to see them.

2 THE COURT: Okay.

3 MR. REESE: However, the people who

4 propounded the objections could not have unless they

5 were working on the Board side of the aisle. That's

6 our point.

7 THE COURT: Do you want to --

8 MS. KULPIT: Judge, we don't believe

9 testimony is necessary. We'd object to the document as

10 just stated on the record by Mr. Reese.

11 THE COURT: Right. I don't think testimony

12 is necessary. Do you have any other submissions, you

13 can do that, otherwise I'll look at this and issue a

14 decision.

15 MR. TOTH: Thank you, Your Honor.

16 MR. REESE: Thank you, Your Honor.

17 MS. KULPIT: Judge, just as a last point, we

18 would ask, there's several people subpoenaed here

19 today. There's subpoenas that we served and then we

20 properly also served to the other side, indicate that

21 if the Court were to reconvene these people would still

22 be under the same subpoena and we'd ask that you allow

23 that.

24 THE COURT: Those are continuing.

25 MS. KULPIT: Thank you.


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1 MR. OSTROWSKI: With respect to our

2 witnesses, too, Your Honor?

3 THE COURT: Yes.

4 MR. OSTROWSKI: I think of which was only

5 three.

6 THE COURT: Yes.

7 MS. KULPIT: Judge, and I would object,

8 because under CPLR 2 --

9 THE COURT: Look. Look. All the subpoenas

10 are in force. If we're going to do it for you, I'm

11 going to do it for you, and I don't see it happening

12 anyway.

13 MS. KULPIT: We would just ask if they serve

14 subpoenas, under the CPLR it requires the other party

15 to know and that has yet to be done in this case.

16 THE COURT: Well, if they are reactivated I

17 would --

18 MR. REESE: We'll give you copies of

19 subpoenas.

20 THE COURT: All right. Make sure you give

21 notice if for some reason they're reactivated.

22 MS. KULPIT: Thank you, Judge.

23 MR. TOTH: Thank you, Your Honor.

24 THE COURT: Okay.

25
47

1 (Whereupon, records were marked as Court's Exhibit

2 1 for identification and received in evidence.)

4 * * * * *

5 I hereby certify that the foregoing 47 pages are a true

6 and accurate transcription of the stenographic notes taken

7 by me in the above captioned matters on May 2, 2019, held

8 before the HONORABLE CHRISTOPHER J. BURNS.

9 _______________________

10 KIM M. BUCK
OFFICIAL COURT REPORTER
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