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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ROCKLAND--------------------------------------------------------------------)(In the Matter of
MICHAEL PARIETTI ANDROBERT ROMANOWSKI,
NOTICE OF MOTIONTO REARGUE
Index No. 002258/12
Petitioners,For a Judgment pursuant to Article 78 of the CPLR
-against-
CHRISTIAN G. SAMPSON AS THE TOWN CLERKOF THE TOWN RAMAPO, NY, THE TOWN OFRAMAPO, THE ROCKLAND COUNTY BOARDOF ELECTIONS, JACOB WEISS, HERSHYITZKOWITZ, JARRHETT OATES AND mANRAMIREZ,
Respondents,
--------------------------------------------------------------------)(SIRS:
PLEASE TAKE NOTICE, that upon the affirmation of Janice Gittelman, Esq., dated
March 21, 2013, the Summons, Notice of Petition and combined Verified Petition and Complaint
commencing this proceeding, and the exhibits annexed hereto, a motion will be made at an LAS.
Part of this Court before the Hon. Margaret Garvey, located at Main Street, New City, New
York, at 9: 15 a.m. on April 19, 2013, or as soon thereafter as counsel can be heard for an
A) ORDER, pursuant to CPLR §2221 granting reargument of this Court's decision dated
March 7,2013; and for an
B) ORDER, pursuant to CPLR §5701(b)(1), granting leave to appeal to the Appellate
Division this Court's Order dated March 7,2013; and for an
C) ORDER, for such other, further and different relief as to the Court may seem just
and proper.
Pursuant to CPLR Section 2214(b), answering affidavits, if any, are required to be served
upon the undersigned at least seven (7) days before the return date of this motion.
Dated: Suffern, New YorkMarch 21,2013
Yours, etc.
MICHAEL L. KLEIN, ESQ.Town AttorneyTown of RamapoAttorney for Respondents Town Clerk andTown of Ramapo237 Route 59Suffern, New York 10901(845)~OO
By: '7 _ . «-<- ~
1/. JANICE GITTELMAN. Deputy Town Attorney
TO: Mr. Michael PariettiPro Se6 Spook Rock RoadSuffern, New York 10901
Mr. Robert RomanowskiPro Se183 Maple AvenueMonsey, New York 10952
County of Rockland, Department of LawAttorneys for the Rockland County Board of Elections11 New Hempstead RoadNew City, New York 10956
-:
Gary Lipton, Esq.Attorney for RespondentHershy Itzkowitz47 Remsen AvenueMonsey, New York 10956
Guy Parisi, Esq.Attorney for Respondents Jacob Weiss, Jarrhett Oates and Juan P. Ramirez720 Milton Road, Suite J1Rye, New York 10580
SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ROCKLAND--------------------------------------------------------------)(In the Matter of
MICHAEL PARIETTI ANDROBERT ROMANOWSKI,
AFFIRMATION INSUPPORT OF MOTIONTO REARGUE
Index No. 002258/12
Petitioners,
For a Judgment pursuant to Article 78 of the CPLR
-against-
CHRISTIAN G. SAMPSON AS THE TOWN CLERKOF THE TOWN RAMAPO, 1\Ty, THE TOWN OFRAMAPO, THE ROCKLAND COUNTY BOARDOF ELECTIONS, JACOB WEISS, HERSHYITZKOWITZ, JARRHETT OATES AND mANRAMIREZ,
Respondents,
--------------------------------------------------------------)(STATE OF NEW YORK )
)ss.:COUNTY OF ROCKLAND )
JANICE GITTELMAN, an attorney duly admitted to practice law in the Courts of the
State of ew York, hereby affirms the following to be true under the penalties of perjury:
1. I am a Deputy Town Attorney in the Office of Michael L. Klein, Esq., Town Attorney
of the Town of Ramapo, counsel for Respondents in the above captioned action.
2. This affirmation, submitted in support of a motion to reargue and seeking leave to
appeal is based upon information and belief except as to those matters stated to be upon direct
knowledge. The sources of information and grounds for belief consist of the investigation
conducted, the file maintained by the Town Clerk's Office, the Notice of Petition and Petition
served and attached hereto as Exhibit A, and the prior proceedings had and papers served herein.
3. The instant action/proceeding seeks vacatur of a decision of the Town Clerk dated
October 23, 2012 made with respect to a petition entitled, "SHALL THE NUMBER OF
COUNCILMEN OR COUNCILWOMEN OF THE TOWN OF RAMAPO BE INCREASED
FROM FOUR TO SIX?". For the reasons that follow, Respondents submit that reargument and
leave to appeal is warranted in this case.
PROCEDURAL HISTORY
4. On or about September 6, 2012, a petition for referendum entitled, "SHALL THE
NUMBER OF COUNCILMEN OR COUNCIL WOMEN OF THE TOWN OF RAMAPO BE
INCREASED FROM FOUR TO SIX?", was filed with the Office of the Town Clerk of the
Town of Ramapo. The petition purported to contain 343 pages containing 1975 signatures.
5. On September 10, 2012, four documents containing General Objections to the
Petition were filed with the Office of the Town Clerk of the Town of Ramapo. On September
17, 2012, four documents containing specific objections were filed with the Office of the Town
Clerk of the Town of Ramapo. On September 25, 2012, a document containing Petitioners'
Responses to the Objections was filed with the Office of the Town Clerk of the Town of
Ramapo.
6. Following receipt of the petition, Christian Sampson, the Town Clerk of the Town
of Ramapo, began a review of the Petition to determine its legal sufficiency in accordance with
applicable law, and in particular with Town Law §81. The scope of this review was limited to
(1) whether the petition contained signatures of only qualified voters, and (2) whether the
petition contained duplicate signatures, such that the petition satisfied the Town Law
requirement as to the minimum number of signatures. As per the Rockland County Board of
Elections, the total number of votes cast by Ramapo residents in the last gubernatorial election
was 28,764. Therefore, the petition was required to contain at least 1438 signatures. This
number is equal to 5% of the 28,764 votes cast in the last gubernatorial election as required by
the Town Law.
7. Following the Town Clerk's independent review of the petition, he undertook a
review of the petition in light of the General Objections and the Specific Objections that were
filed.
8. After review of the Petition, the Town Clerk determined that the petition did not
contain sufficient valid signatures so as to compel the placement of the referendum on the ballot.
The Clerk's written decision to this effect was served upon the Joseph Meyers, the individual
designated on the Petition to receive notice of objections and determinations, and upon the
Objectors on October 23,2012.
9. Upon information and belief, Petitioners filed an Article 78 petition on October
26, 2012 under Index No. 2153/12 and thereafter filed an Amended Petition. Neither of those
petitions was ever served upon Respondents prior to March 2013. By Decision and Order dated
November 19,2012, the Court, sua sponte, dismissed the petitions without prejudice based upon
Petitioners' failure to serve Respondents. A Decision and Order dated March 7, 2013 vacated
that dismissal and is the subject of a motion to vacate and or dismiss filed by Respondents.
10. The instant petition was filed on November 20, 2012 and was served upon the
Town of Ramapo Town Clerk on November 21,2012. Respondents thereafter moved to dismiss
the petition based upon a violation of the applicable three day statute of limitations. A copy of
the moving papers, opposition and reply to the motion is attached hereto as Exhibit B.
11. This Court, in a Decision and Order dated March 7, 2013, denied the motion to
dismiss and directed that Answers be filed. A copy of the Decision and Order is attached hereto
as Exhibit C.
12. Pursuant to CPLR §5519, the municipal Respondents served, together with this
motion, an affidavit declaring their intention to move for leave to appeal this Court's March 7,
2013 Decision and Order. CPLR §5519 provides that the service of such an affidavit stays all
proceedings that seek to enforce the Order sought to be appealed with respect to a municipality.
Therefore, Respondents submit that service of an Answer in this case is stayed pending
determination of that part of this motion which seeks leave to appeal. A copy of the Affidavit
pursuant to CPLR §5519 is attached hereto as Exhibit D.
THE EXECUTIVE ORDER RELIED UPON BY THE COURT DID NOTEXTEND THE STATUTE OF LIMITATIONS IN THIS CASE
13. Town Law §§81(2)(b) and (4) require that petitions seeking to establish a ward
system for the election of councilmen "shall be subscribed and authenticated, in the manner
provided by the Election Law for the authentication of nominating petitions ... " Fisher v.
Sampson, 27 AD.3d 560 (2d Dept. 2006). The statutory provisions concerning limitations of
actions with respect to nominating petitions are equally applicable to petitions seeking to
establish a ward system. Heath v. Islip, 169 Misc.2d 382 (Sup. Ct., Suffolk Cty. 1996), affd.
239 AD.2d 501 (2d Dept. 1997).
14. Election Law § 16-102 sets forth the appropriate limitations period for
proceedings as to designating and nominating petitions. That statute provides in pertinent part as
follows:
2. A proceeding with respect to a petition shall be instituted within fourteendays after the last day to file the petition, or within three business days after
the officer or board with whom or which such petition was filed, makes adetermination of invalidity with respect to such petition, whichever is later ....
15. The only applicable limitations period in the above quoted section is the three day
provision and indeed courts have dismissed petitions instituted under Town Law §81 that have
not complied with this three day statute oflimitations. See e.g., Heath v. Islip, 169 Misc.2d 382
(Sup. Ct., Suffolk Cty. 1996), affd. 239 A.D.2d 501 (2d Dep't 1997). Moreover, institution of a
proceeding within the context of the Election Law, as contrasted with relevant provisions of the
CPLR, contemplates both filing and service and therefore requires that service on all necessary
parties be accomplished no later than the last date on which the petition could be filed.
McDonough v. Scannapieco, 65 A.D.3d 647 (2d Dept. 2009); Malaga v. Suffolk County Board
of Elections, 66 A.D.3d 902 (2d Dept. 2009); Riley v. Democratic Party of Owasco, 21 A.D.3d
708 (4thDept. 2005); Wilson v. Garfinkle, 5 A.D.3d 409 (2d Dept. 2004); Barbarite v. Hill, 197
A.D.2d 740 (3d Dept. 1993); Grimm v. Board of Elections, 35 Misc.3d 1233(A) (Sup. Ct.,
Richmond Cty. 2012).
16. The last date on which the petitions in this case could be filed and served on all
necessary parties was October 26, 2012. The instant petition was not filed until November 20,
2012, and was not served on the Town until November 21, 2012, well beyond the expiration of
the three day statute of limitations.
17. In the Decision and Order dated March 7,2013, the Court agreed with Respondents
that the three day statute of limitations contained in Election Law §16-102(2) applied to the
instant matter. The Court further rejected Petitioners' arguments as to why the failure to institute
the proceeding within that three day time frame should be excused. The Court, however, denied
Respondents' Motion to Dismiss based upon the provisions of Executive Order Number 52.
Executive Order Number 52 provides in relevant part as follows,
.. .I temporarily suspend, for the period from the date of thisExecutive Order until further notice, the following laws:
Section 201 of the Civil Practice Law and Rules, so far as it barsActions whose limitation period concludes during the periodCommencing from the date that the disaster emergency wasDeclared pursuant to Executive Order Number 47, issued onOctober 26,2012, until further notice, and so far as it limits aCourt's authority to extend such time, whether or not the time toCommence such an action is specified in Article 2 of the Civil PracticeLaw and Rules. (Emphasis supplied).
Executive Order Number 52 further provides as follows:
I hereby temporarily suspend and modify, for the period from thedate of this Executive Order until further notice, any other statute,local law, ordinance, order, rule or regulation or part thereof, establishinglimitations of time for the filing or service of any action, notice orother process or proceeding that the court lacks authority to extendthrough the exercise of discretion, where any limitation oftimeconcludes during the period commencing from the date that the disasteremergency was declared pursuant to Executive Order Number 47, issuedon October 26, 2012, until further notice." (Emphasis added).
Both provisions of the Executive Order provide that statutes of limitations are suspended
beginning on the date of the Executive Order. Executive Order Number 52 was issued on
October 31, 2012. A copy of the Executive Order Number 52 is attached hereto as Exhibit E.
18. Respondents submit that the plain meaning of the Executive Order suspended
statutes of limitations only as of the date of the Order itself. Had the Governor intended to
suspend statutes of limitations as of October 26, 2013, the Executive Order would not have
stated that the suspension ran from the date of the Executive Order. The practical effect of the
Executive Order is that the period of time that accrues between October 26, 2012 and the
expiration of the executive order will be excluded from the calculation of time for statute of
limitations purposes if the expiration of the limitations period occurs on or after October 31,
2012 through the date of the expiration of the Executive Order.
19. Respondents' position finds further support in the language of the relevant
legislation. Executive Law §29-a, entitles "Suspension of other laws" provides in relevant part
as follows,
1. Subject to the state constitution, the federal constitution and federalstatutes and regulations, the governor may by executive order temporarilysuspend specific provisions of any statute, local law, ordinance, or orders,rules, regulations, or parts thereof, of any agency during a state disasteremergency, if compliance with such provisions would prevent, hinder, ordelay action necessary to cope with the disaster.
2. Such suspensions shall be effective from the time and in the mannerprescribed in such orders and shall be published as soon as practicable in thestate bulletin. (Emphasis added).
The Executive Law provides that executive orders are effective only from the date set forth in
such orders. The instant executive order provides an effective date of October 31, 2012.
Therefore, said executive order was not in effect on October 26, 2012, and Petitioners were not
entitled to a toll of the three day limitations period. For this reason, Respondents respectfully
request that the Court grant reargument and upon reargument grant dismissal of the petition.
LEAVE TO APPEAL
20. For the reasons stated above, and in the event thatthis Court does not dismiss the
petition upon reargument, Respondents request that the Court grant leave to appeal the Decision
and Order of March 7,2013 pursuant to CPLR §S701(b)(1). Neumark v. New York City Police
Property Clerk, 122 A.D .2d 210 (2d Dep't 1986); Driscoll v. Department of Fire of City of
Syracuse, 112 A.D.2d 751 (2dDept. 1985).
WHEREFORE, it is respectfully requested that the instant motion for reargument be
granted, and upon reargument that the petition be dismissed, and that the Court grant