SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND --------------------------------------------------------------------)( In the Matter of MICHAEL P ARIETTI AND ROBERT ROMANOWSKI, NOTICE OF MOTION TO REARGUE Index No. 002258/12 Petitioners, For a Judgment pursuant to Article 78 of the CPLR -against- CHRISTIAN G. SAMPSON AS THE TOWN CLERK OF THE TOWN RAMAPO, NY, THE TOWN OF RAMAPO, THE ROCKLAND COUNTY BOARD OF ELECTIONS, JACOB WEISS, HERSHY ITZKOWITZ, JARRHETT OATES AND man RAMIREZ, 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 York March 21,2013 TO: Mr. Michael Parietti Pro Se 6 Spook Rock Road Suffern, New York 10901 Mr. Robert Romanowski Pro Se 183 Maple Avenue Monsey, New York 10952 Yours, etc. MICHAEL L. KLEIN, ESQ. Town Attorney Town of Ramapo Attorney for Respondents Town Clerk and Town of Ramapo 237 Route 59 Suffern, New York 10901 (845)~OO By: '7 _. «-<- ~. JANICE GITTELMAN. Deputy Town Attorney 1/ County of Rockland, Department of Law Attorneys for the Rockland County Board of Elections 11 New Hempstead Road New City, New York 10956
-: Gary Lipton, Esq. Attorney for Respondent Hershy Itzkowitz 47 Remsen Avenue Monsey, New York 10956 Guy Parisi, Esq. Attorney for Respondents Jacob Weiss, Jarrhett Oates and Juan P. Ramirez 720 Milton Road, Suite J1 Rye, New York 10580
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND --------------------------------------------------------------)( In the Matter of MICHAEL PARIETTI AND ROBERT ROMANOWSKI, AFFIRMATION IN SUPPORT OF MOTION TO REARGUE Index No. 002258/12 Petitioners, For a Judgment pursuant to Article 78 of the CPLR -against- CHRISTIAN G. SAMPSON AS THE TOWN CLERK OF THE TOWN RAMAPO, 1\Ty, THE TOWN OF RAMAPO, THE ROCKLAND COUNTY BOARD OF ELECTIONS, JACOB WEISS, HERSHY ITZKOWITZ, JARRHETT OATES AND man RAMIREZ, 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 NOT EXTEND 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 fourteen days 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 a determination 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 16-1 02(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 this Executive Order until further notice, the following laws: Section 201 of the Civil Practice Law and Rules, so far as it bars Actions whose limitation period concludes during the period Commencing from the date that the disaster emergency was Declared pursuant to Executive Order Number 47, issued on October 26,2012, until further notice, and so far as it limits a Court's authority to extend such time, whether or not the time to Commence such an action is specified in Article 2 of the Civil Practice Law and Rules. (Emphasis supplied). Executive Order Number 52 further provides as follows: I hereby temporarily suspend and modify, for the period from the date of this Executive Order until further notice, any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing or service of any action, notice or other process or proceeding that the court lacks authority to extend through the exercise of discretion, where any limitation oftime concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 47, issued on 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 federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules, regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster. 2. Such suspensions shall be effective from the time and in the manner prescribed in such orders and shall be published as soon as practicable in the state 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
Respondents leave to appeal the Decision and Order of March 7, 2013, and for such other and further relief as the Court deems necessary and proper. Dated: Suffern, New York March 21,2013 /1 'I ' t, rl /!!I 4,, /i.,// //1JtI4,t A '/L ;0'41/--- /~1ANICE GITTELMAN // 1/