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August 1, 1995


John G. Koeltl, United States District Judge

The opinion of the court was delivered by: JOHN G. KOELTL

John G. Koeltl, District Judge:

 The defendants have moved for dismissal of the complaint or, alternatively, for summary judgment. In the Second Amended Complaint (hereinafter "the complaint"), plaintiff Delco Cornett seeks compensatory and punitive damages for the defendants' failure to place his name on the ballot in the 14th Congressional District in Manhattan as the Right to Life Party candidate for the United States House of Representatives in the last election.

 The defendants are alleged to be employees and members of the New York City Board of Elections. Cornett claims that they deprived him of his rights to equal protection and due process under both the federal and New York state constitutions. His federal constitutional claims are brought pursuant to 42 U.S.C. § 1983. *fn1" The thrust of his claims is that his petition to be placed on the ballot was wrongfully rejected, because the objections to it should never have been heard by the Board of Elections.

 The objector to the plaintiff's petition sent specifications of the objections to him an incorrect address, apparently due to a typographical error. Even though Cornett appeared for the Board of Elections hearing on his petition and personally contested the objections, even though he had an opportunity to be fully heard, and even though he does not argue that the objections to his petition were invalid, he now claims that the Board's alleged failure to follow its rules requiring service of the specifications and filing of a proof of service deprived him of his constitutional rights. For the reasons stated below, the Court grants the defendants' motion for summary judgment.


 New York election law provides for the nomination of candidates of independent parties by petition. The law denominates independent parties as "independent bodies," which it defines in contrast to "parties." A "party" is a political organization that polled at least 50,000 votes for its candidate for governor in the last election. N.Y. Elec. Law. § 1-104(3) (McKinney 1988). An "independent body" is a nominating group or organization which is not a party. Id. § 1-104(12). "Party" candidates are nominated through the primary election process. See Id. § 6-110. Independent candidates are nominated by petition. Id. § 6-138(1).

 New York Election Law § 6-142 defines the number of signatures a petitioner must obtain in order to be nominated as an independent candidate. Petition signatures must be witnessed by a party member who is a qualified voter or by a notary public or commissioner of deeds. Id. § 6-140. A nominating petition timely filed in proper form and appearing to bear the requisite number of signatures needed for nomination is presumptively valid. Id. § 6-154(1). However, written objections to a nominating petition may be filed by any person qualified to vote for the office within three days after the filing of the petition. Id. § 6-154(2). Specifications of the grounds of the objections must be filed within six days of the filing of the objections. Id. The rules of the Board of Elections state that an objector must serve these specifications upon the petitioner and file proof of service before the Board will consider the objections. See infra, fn. 3. Cornett does not contend that his petition was valid, but rather that the Board's failure to follow its rule requiring dismissal of objections when specifications have not been served upon the petitioner wrongfully deprived him of the presumption of validity which the petition otherwise would have enjoyed.


 The present motion seeks dismissal of the complaint or, in the alternative, summary judgment. For the purpose of deciding a motion to dismiss, a court is to accept the allegations of the complaint as true. *fn2" As explained below, the Court finds it appropriate to consider materials outside of the complaint and the other pleadings and to grant summary judgment for the defendants rather than to dismiss the complaint. See Fed. R. Civ. P. 12(b) (stating that a motion to dismiss is to be treated as one for summary judgment as provided in Fed. R. Civ. P. 56 if matters outside the pleadings are presented and not excluded by the court); In re G. & A. Books, 770 F.2d 288, 295 (2d Cir. 1985) ("The essential inquiry [in determining the adequacy of notice of conversion] is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings."), cert. denied sub nom., M.J.M. Exhibitors, Inc. v. Stern, 475 U.S. 1015, 89 L. Ed. 2d 310, 106 S. Ct. 1195 (1986). The parties have been given notice of the materials, which consist primarily of a videotape of the hearing before the New York City Board of Elections, and there is no dispute as to their authenticity. None of the materials outside of the pleadings that the Court has considered controvert the complaint's material factual allegations.

 The complaint alleges as follows. Seeking to be placed on the primary ballot as the Right to Life Party candidate for the United States House of Representatives in the 14th Congressional District, plaintiff Delco Cornett collected petition signatures in June and July, 1994 and submitted a petition to the Board of Elections later in July. A Republican District Leader, James Mahon, filed a general objection to Cornett's petition with the Board of Elections seeking its invalidation. The Board's rules state that it will not consider objections to a nominating petition unless prior to filing the specific objections with the Board the objector serves a copy of the specifications upon the petitioner, either personally or by registered mail. *fn3" The Board has complied with this rule in the cases of other candidates, including Augustin Alamo, but in Cornett's case the Board heard objections to the petition although Cornett never received a copy of the specifications from Mahon. Cornett was however aware of the Board of Elections hearing on July 29, 1994 at which the Board was to consider the objections and he did in fact attend it. At the hearing, Cornett informed the Board that, "I would like to say that I've never received a copy of the specifications, and I'd like to see a proof of service." Complaint P 21, (citing Hearing Tr. at 65). A proof of service was not produced to Cornett at that time. A proof of service was filed, but it does not state Cornett's correct address.

 The defendants have filed a statement pursuant to Rule 3(g) of the Local Civil Rules in support of their motion in the alternative for summary judgment, which sets forth the material facts as to which they contend there is no genuine dispute. The statement does not dispute any of the foregoing facts alleged in the complaint but merely elaborates on them. The plaintiff's counter-3(g) statement does not controvert any of the material allegations in the defendants' 3(g) statement, *fn4" which are set forth below, and these will therefore be deemed to be admitted by the plaintiff pursuant to Rule 3(g). The complaint, 3(g) statements, and an undisputedly authentic videotape of the July 29 Board hearing demonstrate that there is no genuine issue as to any material fact in this case and that the defendants are entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Giano v. Senkowski, 54 F.3d 1050, 1052; Fed. R. Civ. P. 56(c).

 The defendants' Rule 3(g) statement alleges as follows. The proof of service filed by Mahon with the Board incorrectly listed Cornett's address as 140 East 30th Street, New York, New York, rather than 140 East 31st Street. Nonetheless, Cornett was aware of the hearing on July 29, 1994 because the Board, pursuant to its regular procedures, sent a notice to him at his correct address advising him that Mahon had filed a general objection to the petition, that there would be a hearing on the objection on July 29, and that after a period of a few days he should call the Candidate Records Unit to determine whether specifications to the objection had been filed. At the hearing, Cornett was afforded an opportunity to review the specifications and the Clerk's report recommending a decision on the specifications and he presented a defense to the objections.

 Cornett's petition contained 35 signatures of purported Right to Life voters within the 14th Congressional District. He needed only 19 signatures to be placed on the ballot. The Clerk's report recommended that 26 of the signatures be declared invalid, leaving Cornett with only 9. Most of the 26 signatures alleged to be defective were found to be defective because the subscribing witness, Cornett himself, was not a member of the Right to Life Party. At the hearing, the Commissioners of the Board of Elections adopted the findings of the Clerk's Report and invalidated the 26 signatures, thus depriving Cornett of a place on the ballot.

 At the same hearing, the Board dismissed objections to another petition, that of Augustin Alamo, due to an improper notice of service of the objections. However, in Alamo's case the proof of service did not merely list an incorrect address for the candidate, but indicated that the specifications of the objections had been sent to a member of Alamo's Committee on Vacancies rather than to Alamo himself. See N.Y. Elec. Law § 6-140(1) (requiring nominating petitions to include the names of three persons who will constitute a committee to fill vacancies in accordance with the provisions of the election law). This defect in service was thus apparent from the face of the proof of service, was brought to the Board's attention at the hearing, and was a basis for its decision to dismiss the objections.

 Lastly, the Court finds that the undisputedly authentic videotape of the July 29 Board of Elections hearing contains the following colloquy:

 CLERK: Right to Life Party, New York County. Petition number 118, 182, specification number 9, matter of the objections of James Mahon, for the petition of Delco Cornett for Congress in the 14th District. Please state your appearances for the record. Could you turn off the beepers?

 CORNETT: My name is Delco Cornett. I'm the candidate for the Right to Life Party to Congress in the 14th Congressional District.

 HUMANE: My name is Frederick Humane, Zeichner, Elman & Krause, 757 Third Avenue, New York, New York 10017, counsel for James Mahon, objector.

 CLERK: Number of signatures claimed on the cover sheet 35, total invalid signatures 26, total valid signatures 9, number of signatures required 19.

 BOARD: All right, gentlemen.

 HUMANE: I move the clerk's report.

 BOARD: Let's hear from the candidate. Go on.

 CORNETT: I would like to say that I've never received a copy of the specifications, and I'd like to see a proof of service.

 HUMANE: I have -- To save time, I have a copy of the stamped one and a copy of the affidavit of service.

 BOARD: Can we accept that as a fact? Well, we can take a look at it. (Papers handed to the Board by Humane.)

 CLERK: It appears to be stamped by the Board of Elections.

 BOARD: Show it to Mr. Cornett. Can you. .

 CLERK: (Papers not shown, but read by Clerk.) July 25 -- it's sent to Delco Cornett, 140 East 30th Street, New York, New ...

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