Professional Documents
Culture Documents
COUNTY OF SULLIVAN
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In the Matter of the Application of
MOSHE SMILOWITZ, ABRAHAM DESSER, MINDY
DESSER, RIVKA DESSER, SAMUEL DESSER, ZIRA
Index No.:
G. DESSER, DAVID FRIEDMAN, ESTHER
GOLDBERG, MEIR GOLDBERG, MENACHEM
Date Purchased:
GOLDBERG, ZVI GOLDBERG, LIPA GOLDSTEIN,
HERSHEL GREEN, ABRAHAM GREENFIELD,
HENDEL GREENFIELD, ARON KARPEN, BERL
KARPEN, ESTHER KARPEN, FEIGY KARPEN, PEARL VERIFIED PETITION
KARPEN, RACHEL KARPEN, SHEMAYA KARPEN,
ISAAC KOHN, YAACOV M SEBBAG, BORECH
STEIN, SHEINDEL STEIN, and JOSEPH S.
WASSERMAN,
Petitioners,
For an Order and Judgment Pursuant to CPLR Article 78
and Other Relief,
-againstANN PRUSINSKI and RODNEY GAEBEL,
Commissioners constituting the SULLIVAN COUNTY
BOARD OF ELECTIONS,
Respondents.
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Petitioners Moshe Smilowitz, Abraham Desser, Mindy Desser, Rivka Desser, Samuel
Desser, Zira G. Desser, David Friedman, Esther Goldberg, Meir Goldberg, Menachem Goldberg,
Zvi Goldberg, Lipa Goldstein, Hershel Green, Abraham Greenfield, Hendel Greenfield, Aron
Karpen, Berl Karpen, Esther Karpen, Feigy Karpen, Pearl Karpen, Rachel Karpen, Shemaya
Karpen, Isaac Kohn, Yaacov M. Sebbag, Borech Stein, Sheindel Stein, and Joseph S. Wasserman
(collectively, the Petitioners), by and through their attorneys HARRIS BEACH PLLC, as and
for their Verified Petition in the above-captioned proceeding, respectfully allege as to their own
conduct, and upon information and belief as to the conduct of others and matters of public record
as follows:
PRELIMINARY STATEMENT
1.
This proceeding is brought pursuant Article 78 of the Civil Practice Law and
Rules (CPLR) and seeks, inter alia, an Order and Judgment annulling the determination of the
County Board of Elections, dated February 27, 2015, and enjoining and permanently restraining
the County Board of Elections from: (i) cancelling Petitioners voter registration, (ii) removing
Petitioners names from the list of eligible voters in the Village of Bloomingburg, New York,
and (iii) transmitting or filing a cancellation and removal report with the State Board of Elections
reflecting the removal of Petitioners names from the list of eligible voters in the Village of
Bloomingburg.
PARTIES
1.
Petitioner Mindy Desser is a duly qualified voter, residing and registered to vote
Petitioner Rivka Desser is a duly qualified voter, residing and registered to vote in
Petitioner Samuel Desser is a duly qualified voter, residing and registered to vote
6.
Petitioner Zira G. Desser is a duly qualified voter, residing and registered to vote
Petitioner Meir Goldberg is a duly qualified voter, residing and registered to vote
Petitioner Zvi Goldberg is a duly qualified voter, residing and registered to vote in
Petitioner Lipa Goldstein is a duly qualified voter, residing and registered to vote
Petitioner Hershel Green is a duly qualified voter, residing and registered to vote
Petitioner Aron Karpen is a duly qualified voter, residing and registered to vote in
17.
Petitioner Berl Karpen is a duly qualified voter, residing and registered to vote in
Petitioner Esther Karpen is a duly qualified voter, residing and registered to vote
Petitioner Feigy Karpen is a duly qualified voter, residing and registered to vote in
Petitioner Pearl Karpen is a duly qualified voter, residing and registered to vote in
Petitioner Rachel Karpen is a duly qualified voter, residing and registered to vote
Petitioner Isaac Kohn is a duly qualified voter, residing and registered to vote in
Petitioner Borech Stein is a duly qualified voter, residing and registered to vote in
Petitioner Sheindel Stein is a duly qualified voter, residing and registered to vote
28.
Sullivan County Board of Elections (the Board of Elections) are responsible, pursuant to
Article 5 of the Election Law, for the registration and enrollment of voters within the Sullivan
County, New York; and, pursuant to 15-104(c) of the Election Law, for conducting all village
elections within the Village of Bloomingburg, New York.
JURISDICTION/VENUE/CAPACITY
29.
The Supreme Court of the State of New York has jurisdiction over this matter
pursuant to CPLR 7801 7806, to review the actions by bodies or officers who have failed to
perform a duty enjoined upon them by law.
30.
Petitioners have capacity to bring the instant proceeding under Article 78 of the
31.
CPLR.
506(b).
STATEMENT OF FACTS
32.
Petitioners are all Hasidic Jewish voters who are registered and qualified to vote
in the Village of Bloomingburg, New York. Each of the Petitioners were registered by the
Sullivan County Board of Elections to vote in Bloomingburg.1
33.
Over the past year, the voting rights of an burgeoning Hasidic Jewish population
in the Village of Bloomingburg have been repeatedly threatened by individuals associated with
the Rural Community Coalition (RCC)2, an organization that is ardently opposed to the a
1
The decision of the Board of Elections to register the Petitioners at their addresses in Bloomingburg, New
York, constitutes presumptive evidence of their residence for voting purposes. Carney v. Ward, 991 N.Y.S.2d at
384 (internal citations omitted.)
2
Upon information and belief, RCC is an organization that has applied for and obtained 501(c)(3) tax
exempt status, even though all or a substantial part of its activities are for carrying on propaganda or attempting to
influence political campaigns or legislation, and has engaged in public fundraising without registering with the New
York State Charities Bureau.
entertain the challenges brought against this community of voters, even though the Board of
Elections is aware that the challenges are frivolous.
35.
Recently, on January 16, 2015, the Board of Elections issued Notice of Voter
Registration Cancellation to over 160 Hasidic Jewish voters, including the Petitioners herein
(collectively, the Challenged Voters), indicating that the Board intended to cancel their voter
registration and deprive them of their constitutional right to vote. A copy of the Notice of Voter
Registration Cancellation (Notice of Cancellation) is annexed hereto as Exhibit A.
36.
Neither the Notice of Cancellation nor the Address Confirmation Post Card
identify the information that purportedly provides the Board of Elections with reason to
believe that Petitioners are no longer eligible to vote in the Village of Bloomingburg.
38.
Upon information and belief, RCC filed the Challenge Affidavits in order to
prevent Hasidic Jewish voters from voting in the Special Election a voter initiated referendum
under Article 17-A of the General Municipal Law held in and for the Village of Bloomingburg,
New York, on September 30, 2014 (the Special Election).
40.
essentially limited to a superficial description of the physical condition of the Challenged Voters
residences (e.g., description of house lighting, vehicles in driveway, window coverings, yard
conditions, etc.), purportedly made by members of the RCC while spying on Challenged Voters
residences. A copy of the Challenge Affidavit filed against Petitioner Moshe Smilowitz is
attached as Exhibit C.
The deadline for registration referenced by the Board of Elections is incorrect. Pursuant to 15-118(1), the
last day for a voter to registered with the Board of Elections
41.
All of the Challenge Affidavits lack specific allegations to support the claim that
the Challenged Voter does not reside at the address he/she is registered to vote from. Indeed,
none of the Challenge Affidavits include any information that could provide the Board of
Elections with reason to believe that the Challenged Voters are no longer qualified to vote in
Sullivan County.4
42.
Notwithstanding the absence of any substantive allegations that would give the
Board of Elections reason to believe that the Challenged Voters registration should be cancelled,
the Board of Elections decided to investigate the Challenged Voters,.
43.
Voter a Challenged Voter Questionnaire, which, among other things, asked the Challenged
Voter whether they disagreed with the non-specific, boilerplate allegations set forth in the
Challenge Affidavit. A copy of the challenge voter questionnaire submitted by Petitioner Moshe
Smilowitz is attached as Exhibit D.
44.
The Board of Elections also requested the Sullivan County Sheriff to conduct an
investigation of the Challenged Voters, including interviewing the Challenged Voters and
examining their homes. The Sheriff recorded the results of their investigation on a Voters
Check Card, which indicated, among other things, whether the investigating officer was
satisfied that the Registrant resides at the given address. A copy of the Sheriffs report for
Petitioner Moshe Smilowitz is attached hereto as Exhibit E.
45.
Both the Challenge Affidavits and the Board of Elections November 19, 2014
Notice of Determination, which granted post-registration challenges against 190 out of 194
Challenged Voters, are the subject of a related proceeding that is currently pending before this
4
In fact, some of the affidavits actually corroborate that the Challenged Voters reside at their given address.
For example, several affidavits reference vehicles that are registered to the Challenged Voters residing at the address
where the vehicles were purportedly observed.
Court, captioned Matter of Berger, et al. v. Prusinski, et al., Index no. 2716-2014 (the Berger
Proceeding). A copy of the notice of determination, dated November 19, 2014 (the PostRegistration Challenge Determination) is annexed hereto as Exhibit F.
46.
it would negate [the Challenged Voters] right to have their vote counted and place the
Challenged Voters name in inactive status.
47.
Petitioners, in the Berger Proceeding, maintain that the Board of Elections Post-
Registration Challenge Determination, to retroactively disenfranchise voters and place their voter
registration in inactive status without holding any kind of a hearing whatsoever, was arbitrary
and capricious, contrary to law, and constituted a clear abuse of discretion.
48.
Elections grossly overlooked obvious and important information evidencing that the Challenged
Voters remained properly registered and qualified to vote in the Village of Bloomingburg. For
example, the Board of Elections failed to consider that essentially all of the Challenged Voters:
(1) appeared in-person to vote during the Special Election and, under the penalty of perjury,
executed an affidavit ballot confirming their qualifications to vote in the Village of
Bloomingburg (a sample affidavit ballot envelope voted by Petitioner Moshe Smilowitz is
annexed hereto as Exhibit G); (2) executed, under penalty of perjury, a written questionnaire in
response to the Challenge Affidavits filed against them regarding their residency (See; Exhibit
D); and (3) voted in-person during the General Election after taking an oath, under penalty of
perjury, re-verifying their continued qualifications to vote in the Village of Bloomingburg.
49.
Unbelievably, the Board of Elections also failed to consider (or give any weight
to) the County Sheriffs finding, in many instances, that it was satisfied that the [Challenged
Voter] resides at [his/her] given address.
50.
The Board of Elections omission of such obvious and important information and
Petitioners voter registration based on the same vague, false, contradictory (and now stale)
information included in the Challenge Affidavits.
52.
and to require Petitioners to, once again, produce evidence establishing their voter qualifications
is simply unconscionable.
Challenge Affidavits do not (and cannot) provide the Board of Elections with a legitimate reason
to believe that the Petitioners are no longer qualified to vote in the Village of Bloomingburg.
53.
In order to preserve their constitutional right to vote, Petitioners were (once again)
affirmatively required to show that they were qualified to vote in Bloomingburg. According to
the Notice of Cancellation, Petitioners could appear and be heard in-person or by submitting
documentation of county residency in writing to the Board of Elections. See Exhibit A.
54.
Section 5-402 of the Election Law describes the procedure by which a board of
elections may cancel a voters registration. Nowhere in that statute is there any requirement that
a voter provide documentation of county residency (as required by the Board of Elections
here). Instead, the statute provides that voter must be notified that he/she may appear before the
board or answer in writing by mail, stating the reasons why his registration should not be
cancelled. See Elec. Law 5-402 (1). In fact, the statute expressly provides that a voter may
state the reasons why his registration should not be cancelled on the postage paid return card
(i.e., the Address Confirmation Post Card) that accompanied the notice of cancellation.
55.
In other words, the statute contemplates that a voters written statement that he or
she resides at their given address and remains qualified to vote from that address is sufficient, in
and of itself, to deny cancellation of their registration.
56.
Each of the Petitioners, here, provided the Board of Elections with ample reasons
why their registration should not be cancelled, either in-person during a hearing5 before the
Commissioners of the Board of Elections or in writing (or both).
57.
All of the Petitioners either personally appeared before the Board of Elections or
provided written documentation demonstrating that they remain properly qualified to vote in the
Village of Bloomingburg, including, without limitation, affirmations of residency, residential
lease agreements, utility bills, drivers licenses, registration documents, etc.
58.
Most of the materials presented by the Petitioners, along with the evidence they
previously submitted in response to the Challenge Affidavits, were assembled two volumes of
Voter Information Sheets (totaling over 800 pages) that were hand delivered to and accepted
by the Sullivan County Attorney on February 13, 2015. A copy of the Voter Information Sheets
are collectively attached (in two parts) as Exhibit I.
Unbelievably, the Board of Elections has no formal procedure for hearings held in connection with its
administrative determination to cancel a voters registration. The hearings were not transcribed in any form or
fashion. No evidence or reasons for cancellation were presented against the Petitioners. And neither of the
Commissioners of the Board of Elections asked any questions of the Petitioners.
59.
Here, the Cancellation Determination issued by the Board of Elections does not
provide any reason whatsoever for cancelling any of the Petitioners voter registration. The
failure to provide such information is not only contrary to the express language of the statute, but
also constitutes a violation of due process. It is well settled that an agencys ultimate decision
following a hearing should be vacated where the decision did not contain necessary findings of
fact. See Arthur v. Soares, 95 A.D.3d 1619, 1621 (3d Dept 2012) (holding that administrative
findings of fact must be made in such a manner that the parties may be assured that the decision
is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit
intelligent challenge by an aggrieved party and adequate judicial review), quoting Langhorne v.
Jackson, 206 A.D.2d 666, 667-8 (3d Dept 1994); State Bd. of Equalization and Assessment v.
Kerwick, 72 A.D.2d 292, 299 (3d Dept 1980); In re New York Water Service Corp., 283 N.Y.
23, 30 (1940) (holding that a party is entitled to findings by which it may know upon what
factual basis rests the Commissions determination); Simpson v. Wolansky, 38 N.Y.2d 391, 396
(1975); Barry v. OConnell, 303 N.Y. 46, 51 (1951); see also, State Administrative Practice Act
307 (1). It is similarly well established that if an agencys determination is not supported by
substantial evidence or it constitutes a clearly erroneous interpretation of law or facts, it will be
annulled. American Tel. & Tel. Co. v. State Tax Comn, 61 N.Y.2d 393 (1984) (holding that if
an agencys determination is not supported by substantial evidence or it constitutes a clearly
erroneous interpretation of law or the facts, it will be annulled).
63.
Substantial evidence means such relevant proof as a reasonable mind may accept
Here, we are prevented from knowing exactly what evidence the Board
considered, if any, in rendering its Cancellation Decision. However, based on the Boards
determination, it is clear that the Board of Elections must have (once again) overlooked obvious
and important information evidencing that the Petitioners remain properly registered and
qualified to vote in the Village of Bloomingburg.
65.
requirements of the Election Law is that the individual must manifest an intent, coupled with
physical presence without any aura of sham. Id. at 1089-90 (internal citations omitted.)
66.
The criterion used to determine a voters qualification to register and vote are set
forth under 5-104(2) of the Election Law. In addition to the voters expressed intent, a board of
elections should consider the voters conduct and all attendant surrounding circumstances
relating thereto, including, among other things, business pursuits, employment, income sources,
residence for income tax purposes, age, marital status, residence of parents, spouse and
children,sites of personal and real property..., motor vehicle and other personal property
registration, and other such factors that it may reasonably deem necessary. Id. at 1090; See also
NY Elec 5-104.
67.
Here, the great weight of the evidence that ought to have been considered by the
Board of Elections clearly demonstrates that the Petitioners remain qualified to vote in the
Village of Bloomingburg.
affirmations submitted by the Petitioners expressing their intention to remain resident in the
Village of Bloomingburg; Petitioners history of voting in the Village of Bloomingburg;
Petitioners signing affidavit ballot envelopes verifying, under penalty of perjury, that they reside
in the Village of Bloomingburg under penalties of perjury; Petitioners taking an oath at the
polling place during the General Election verifying, under penalty of perjury, that they reside in
the Village of Bloomingburg; Petitioners submitting Challenged Voter Questionnaires and
Address Confirmation Post Cards verifying their residence in the Village of Bloomingburg;
Petitioners submitting lease agreements, bills, invoices, and other documents reflecting their
residence in the Village of Bloomingburg; Petitioners providing NYS Driver License and
registration documents evidencing their residence in the Village of Bloomingburg; etc. [See
Voter Information Sheets, Exhibit I.]
68.
The Board of Elections has not identified a shred of evidence in support of its
per se arbitrary and capricious because, among other things, it reached different results for
different Challenged Voters without providing any explanation for such disparate treatment.
70.
For example, the Board of Elections cancelled the voter registration of Petitioner
Moshe Smilowitz, but did not cancel the registration of his wife, Devorah, or his son, Shulem
Dov. Moshe, Devorah, and Shulem Dov Smilowitz all appeared, simultaneously, before the
Commissioners of the Board of Elections in order to state the reasons why their registration
should not be cancelled. Together, they submitted documents and information evidencing their
residency in the Village of Bloomingburg, including, without limitation: NYS Drivers Licenses,
lease agreement, utility bills, insurance bills. A copy of the materials submitted by the Moshe,
Devorah, and Shulem Dov Smilowitz is annexed hereto as Exhibit J.
71.
There is no rational basis for the Board of Elections to cancel Moshe Smilowitzs
disenfranchisement of the Petitioners. It is well settled that that the claimed deprivation of a
constitutional right such as a right to a meaningful vote or to the full and effective participation
in the political process is in and of itself irreparable harm. Puerto Rican Legal Defense and
Educ. Fund, Inc. v. City of New York, 769 F. Supp. 74 (E.D.N.Y. 1991), citing Reynolds v. Sims,
377 U.S. 533, 562 (1964).
74.
75.
No previous application has been made for the relief sought herein or for the
_____________________
Jared A. Kasschau, Esq.
333 Earle Ovington Blvd., Suite 901
Uniondale, New York 11535
(516) 880-8484
ATTORNEY VERIFICATION
STATE OF NEW YORK
COUNTY OF NASSAU
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