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Thomas v. Eugene

Supreme Court, Kings County

August 8, 2013

Saundra Thomas, Petitioner-Candidate Aggrieved,
v.
Mathieu Eugene, Respondent-Candidate, and Board of Elections in The City of New York, Respondent

Plaintiff Attorney: Jerry H. Goldfeder, Esq., Stroock, Stroock & Lavan, LLP

Defendant Attorney: Martin E. Connor

Attorney for Respondent Board: Steven H. Richman, Esq., General Counsel, Board of Elections in the City of New York.

David I. Schmidt, J.

Upon the foregoing papers and oral argument before the court conducted on the record, respondent-candidate Matthieu Eugune moves for an order: (1) dismissing the petition based on petitioner Saundra Thomas' failure to state her fraud allegations with particularity in her petition and bill of particulars and, alternatively, (2) striking Thomas' bill of particulars and precluding petitioner Thomas from presenting proof with respect to the allegations contained in the bill of particulars based on Thomas' failure to verify the bill of particulars. [1]

The portion of the motion requesting dismissal of the petition is granted and the petition is dismissed. [2]

Turning to the issue relating to the verification of the bill of particulars, this court finds that the failure to verify the bill of particulars is not a fatal defect requiring preclusion of petitioner's fraud allegations contained in the unverified bill of particulars. Eugene argues that Thomas' bill of particulars is defective because it is not verified, in contravention of CPLR 3044, which requires verification if a pleading is verified. Verification would be required if CPLR 3044 is applicable, because Election Law § 16-116 requires that a petition under the Election Law must be verified, and Thomas' petition here was indeed verified. Nevertheless, this court is not convinced that the "bill of particulars" required by this court's special election part rules constitutes a bill of particulars under the CPLR. Importantly, while CPLR 3041 broadly provides that "[a]ny party may require another party to give a bill of particulars of such party's claim, " CPLR 3042 (a) lays out demand and response procedures for bill of particulars that cannot realistically be accomplished within the time constraints of an election law proceeding. Concededly, the bill of particulars under the part rules is intended to amplify the petition much as one required under the CPLR (see Matter of Wooten v Barron, 242 A.D.2d 351, 352 [2d Dept 1997]). CPLR 3042 (a)'s demand and response procedure, however, is a crucial component of a bill of particulars under the CPLR, and, in the absence of any such procedures under the special election part rules, the bill of particulars required by the special election part rules is not covered by CPLR or the verification requirement contained in CPLR 3044. As the special election part rules do not require that the bill of particulars be verified, petitioner's failure to verify her bill of particulars does not render it defective.

Even if Thomas' bill of particulars was subject to the verification requirement of CPLR 3044 [3] and the CPLR's other requirements for a bill of particulars to the extent that they are not inconsistent with the requirements of a special proceeding or the Election Law (see Tower Props. v Castro, 99 Misc.2d 405, 406-407 [Rockland County Court 1979]; CPLR 101, 103[b]), this court finds that the failure to verify under the circumstances here would not require preclusion of the claims alleged in the unverified bill of particulars. Unlike petitions in election matters (see Matter of Goodman v Hayduk, 45 N.Y.2d 804, 806 [1978] [failure to verify petition in election matter jurisdictional]; but see Matter of Miller v Board of Assessers, 91 N.Y.2d 82, 86 [1997] [failure to verify petition in a tax certiorari proceeding is not jurisdictional]), the verification requirement relating to a bill of particulars is not jurisdictional. This is evident because the bill of particulars required by the special election part rules is not one of the papers required to be served at the commencement of a proceeding in order to obtain jurisdiction over a party (Election Law § 16-116).

In an action, when the party properly raises an objection to an unverified pleading, the remedy, in the absence of any willful or contumacious failure to verify, would be either to direct the submission of a verified bill of particulars, or to strike the unverified bill, but with leave to resubmit (see Matter of Ross, 34 Misc.2d 1018, 1019 [Sur Ct, Nassau County 1962]; see also Dodd v Colbert, 64 A.D.3d 982, 984 [3d Dept 2009]). Here, this court cannot make such a direction because of the extreme time constraints of Election Law proceedings. Under these circumstances, and in light of the absence of any real prejudice to a substantial right that results from the absence of verification, the court will excuse the absence of verification (see Captial Newspapers Div. - Hearst Corp. v Vanderbilt, 44 Misc.2d 542, 543-544 [Sup Ct, Albany County 1964]; see also Matter of Rose v Smith, 220 A.D.2d 922, 923 [3d Dept 1995]; cf. Deepdale Gardens Third Corp. v Bechky, 104 A.D.2d 846, 846 [2d Dept 1984], lv dismissed 64 N.Y.2d 754 [1984], 64 N.Y.2d 610 [1985], and 65 N.Y.2d 636 [1985]). [4]

Eugene also contends that the petition and bill of particulars fail to plead fraud with particularity. CPLR 3016 (b)'s requirement that fraud be pled with specificity applies to special proceedings under the election law (Matter of Robinson v Edwards, 54 A.D.3d 682, 683 [2d Dept 2008]; Matter of Waugh v Nowicki, 10 A.D.3d 437, 438 [2d Dept 2004], lv denied 10 N.Y.3d 437 [2004]; Matter of Wooten, 242 A.D.2d at 352). While CPLR 3016 (b) does not require the pleadings to provide unassailable proof of fraud, the pleadings must still allege sufficient facts to allow the judge to infer a candidate's participation or knowledge of fraudulent conduct (see Pludeman v Northern Leasing Sys. Inc., 10 N.Y.3d 486, 491 [2008]; Polonetsky v Better Homes Depot, 97 N.Y.2d 46, 55 [2001]; see also Matter of Robinson, 54 A.D.3d at 683).

Here, in the verified petition, Thomas alleges that Eugene's designating petition should be set aside because:

"(a) Respondent-Candidate is chargeable with knowledge of fraud in the procurement of signatures in the Designating Petition: to wit, upon information and belief, many of the signatures purportedly obtained by his brother as a Subscribing Witness were not signed properly or not signed by the registered voter the signature is purportedly from, or is forged;
"(b) the Designating Petition is permeated with fraud in that:
"(1) many of the signers did not sign their names to the Designating Petition in the presence of the subscribing witness on the dates ...

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