ED ON 812712009

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

PRESENT: LOUIS CRESPO PART 85R
SPECIAL REFEREE

INDEX NO. 11077912009

CHRISTOPHER BURKE, ET AL.,
MOTION DATE August 24,2009
-v-
MOTION SEQ. NO. lnterlm Order
MICHAEL McSWEENEY, CITY CLERK OF THE CITY
OF NEW YORK, ET AL.,

The following papers, numbered 1 to were read on thls moti

Notice of Motion/ Order to Show Cause - A

-
Answerlng Affidavits Exhlblts
Replying Affldavits

Cross-Motio
APPEARANCES:
For Plaintiffs For Defeaants
Mr. Dennis P. McMahon, Esq. Mr. Stephen Kitzinger, Esq.,
195 Broadway Assistant Corporation Counsel
New York, NY 10007 Corporation Counsel of the City of New York
(212) 337-4250 100 Church Street
denni s.mcmahon@,thom$onreuters.com New York, NY 10007
(212) 788-0849
$kitzinger@,law.nyc.gov

By order of the Hon., Edward H. Lehner, dated August 3,2008, the issue of validating
the plaintiffs’ petition seeking the placement of a referendum on the November 2009
General Election ballot (the “Petition”) was referred to the Special Referee to hear and
report. The facts giving rise to this action are set out in the Interim Orders of the
Special Referee, dated August 3 and 6,2009, and are incorporated by reference herein.
This matter was initially conference with the attorneys on August 3, and a follow up
conference August 6,2009. Subsequently, on August 7, an Interim Order was issued
directing that the parties commence the line-by-line review of the approximate 24,644
signatures certified by the defendant Clerk as invalid (on the ground they signatories
were unqualified voters), no later than August 10, 2009 and that the same would
conclude on Friday, August 14,2009.

On August 14, 2009, a third conference followed on the status of the line-by-line.
Plaintiffs counsel represented that another week would be sufficient to complete the
line-by-line conditioned up the availability of facilities and stations. At that time a
further Interim Order was issued by the Special Referee, directing among other things,
continuation of the line-by-line until August 21, 2009; the plaintiff file an amended
verified petition by August 2 1,2009; the plaintiff serve a bill of particulars by August
28, 2009; defendants to serve answer and/or motion to dismiss by September 4,2009;
and a conference be schedule with the Court regarding all of the above on September

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8, 2009 at 4:OO PM. Lastly, the Court would begin a line-by-line review of disputed
signatures at the BOE on September 8, 2009, to go day-to-day until September 18,
2009 (unless otherwise directed).

On Friday, August 21, 2009, after the close of business, the Special Referee held a
telephone conference at the request of plaintiffs attorney at approximately 5:30 P.M.
The plaintiffs’ attorney requested permission to extend their review at Adams Street
location specific volumes 33,34,35,36,37 and 38 (six volumes)(see also, McMahon
08/24/09 7: 15 A.M., Email Application to Special Referee, p l), without extending the
time to submit the Bill of Particulars, due Friday, August 28, 2009. It was noted that
plaintiffs’ earlier request for an extension to Monday, August 24, 2009, to complete
review of volumes 44,47 and 49,50,51 and 52 (six volumes) at Varick Street location
was consented to by the defendants.

However, the dispute of granting access to VQlumes 33, 34, 35, 36, 37 and 38 at
Adams Street was not resolved at the conference call. Because of the late evening and
the disclosed fact that defendants ’ attorney would be taking vacation on Saturday,
August 28,2009, the Special Referee directed that plaintiffs continue and compete their
review of volumes Volumes 44,47 qnd 49, SO,51 and 52 at Varick Street location by
Monday, August 24,2009, close of business and that the issue of whether a review of
the other volumes could be addressed in an emergency application, if plaintiffs
counsel felt it would be wise.

At approximately 7:30 A.M., on Monday, August 24,2009, by email communication

to the Court and defendants ’ attorney, plaintiffs made such an application, that is,
seeking to complete review of the remaining volumes at the Adams Street location:
Volumes 33, 34, 35, 36, 37 and 38, without extending the filing of the Bill of
Particulars due Friday, August 28, 2009. The request is that the defendants make
available such volumes and that the same be reviewed at the A d a m Street location in
view of the number of terminals available (20).

On Monday, August 24,2009, at approximately 2:OO P.M., the defendants’ attorney

(temporarily assigned while Mr. Kitzinger is on vacation),the plaintiffs’ attorney and
the Special Referee conference the emergency application. The defendants ’ attorney
objects to the extension for the same reasons as expressed by Stephen Kitzinger, Esq.,
Asst., Corporation Counsel, at the Friday, August 2 1, 2009-conference call: (1) the
August 7,2009-Order provided a cut off period for the review on Friday, August 2 1,
2009, and there was ample time to coinplete the review; (2) the absence o f complaints
by plaintiffs of any problems with the facilities or stations or sites assigned to them
during the past week at the various locations; (3) personnel from the Clerk’s office
cannot be stretched to more days on this matter due to budgetary problems; (4) that, if
granted, any further extension be final and limited.

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In the interest of justice, the absence of prejudice to the defendants, and to have a
complete record in order to determine the threshold issues presented to the Special
Referee, the application is granted to the extent and conditions noted below

(1) ORDERED the defendants shall make available for inspection Volumes: 33,34,
35,36,37 and 38 (six volumes), to the plaintiffs, but without extending the time to the
plaintiffs to submit the Bill of Particulars, due Friday, August 28, 2009;
( 2 ) ORDERED the plaintiffs shall be available for inspection and review of such
above volumes at the designated time and place, to wit: Adams Street location;
(3) ORDERED the defendants shall designate the Adams Street location accessible
for such inspection of the specific volumes noted above and to take place on Tuesday,
Aupust 25,2009 from 9:30 AM., to close of business on said date;
(4) ORDERED that is extension is FINAL and no further extensions will be granted;
(5) ORDERED that the plaintiffs shall file their bill of particulars no later than
Friday, August 28,2009, by the close of business with the defendants’ attorney and the
original with the Special Referee at 71 Thomas Street, New York, New York.

This constitutes the interim order of the Court.

Dated: Auqust 24, 2009 LOUIS CRESPO

- SPECIAL REFEREE
Check one: 0 FINAL DISPOSITION 0 NON-FINAL DISPOSITION

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