smilowitz v. prusinski

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN

---------------------------------------------------------------------X In the Matter of the Application of 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, Petitioners, For an Order and Judgment Pursuant to CPLR Article 78 and Other Relief, -against- ANN PRUSINSKI and RODNEY GAEBEL, Commissioners constituting the SULLIVAN COUNTY BOARD OF ELECTIONS, Respondents. ---------------------------------------------------------------------X

Index No.: Date Purchased: VERIFIED PETITION

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 Moshe Smilowitz is a duly qualified voter, residing and registered to

vote in the Village of Bloomingburg, New York.

2. Petitioner Abraham Desser is a duly qualified voter, residing and registered to


3. Petitioner Mindy Desser is a duly qualified voter, residing and registered to vote

in the Village of Bloomingburg, New York.

4. Petitioner Rivka Desser is a duly qualified voter, residing and registered to vote in

the Village of Bloomingburg, New York.

5. 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


7. Petitioner David Friedman is a duly qualified voter, residing and registered to


8. Petitioner Esther Goldberg is a duly qualified voter, residing and registered to


9. Petitioner Meir Goldberg is a duly qualified voter, residing and registered to vote


10. Petitioner Menachem Goldberg is a duly qualified voter, residing and registered to


11. Petitioner Zvi Goldberg is a duly qualified voter, residing and registered to vote in


12. Petitioner Lipa Goldstein is a duly qualified voter, residing and registered to vote


13. Petitioner Hershel Green is a duly qualified voter, residing and registered to vote


14. Petitioner Abraham Greenfield is a duly qualified voter, residing and registered to


15. Petitioner Hendel Greenfield is a duly qualified voter, residing and registered to


16. 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


18. Petitioner Esther Karpen is a duly qualified voter, residing and registered to vote


19. Petitioner Feigy Karpen is a duly qualified voter, residing and registered to vote in


20. Petitioner Pearl Karpen is a duly qualified voter, residing and registered to vote in


21. Petitioner Rachel Karpen is a duly qualified voter, residing and registered to vote


22. Petitioner Shemaya Karpen is a duly qualified voter, residing and registered to


23. Petitioner Isaac Kohn is a duly qualified voter, residing and registered to vote in


24. Petitioner Yaacov M. Sebbag is a duly qualified voter, residing and registered to


25. Petitioner Borech Stein is a duly qualified voter, residing and registered to vote in


26. Petitioner Sheindel Stein is a duly qualified voter, residing and registered to vote


27. Petitioner Joseph Wasserman is a duly qualified voter, residing and registered to


28. Respondents Ann Prusinski and Rodney Gaebel, Commissioners constituting the

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

CPLR.

31. This proceeding is properly venued in the County of Sullivan pursuant to 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.

building development in Bloomingburg that was, as RCC highlights on their website

(www.ruralcommunitycoalition.com/what-happened), advertised the Yiddish newspaper DER

YID. RCC has gone so far as to advocate for the dissolution of the Village of Bloomingburg

(founded circ. 1833) in order to prevent the development from going forward.

34. The Sullivan County Board of Elections (Board of Elections) continues to

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. An Address Confirmation Post Card accompanied the Notice of Cancellation,

which included the following message:

DEAR VOTER: The Sullivan County Board of Elections has received

information that provides reason to believe that you are no longer eligible to vote in Sullivan County.

We are obligated, under Section 5-402 of the New York State Election Law, to hereby notify you that you may appear before this board or answer in writing by mail, stating the reasons why your registration should not be cancelled.

If you do not appear or answer in writing within fourteen (14) days of this notification, your registration will be cancelled.

Upon such cancellation, you will need to re-register at such time that you meet the eligibility requirements under Section 5-106 of the Election Law.

Please be aware that the deadline for registering for an election is 25 days prior to that election. Applications

postmarked or received by that date are effective for such election.3

For information on how to re-register or to obtain registration forms call the Board of Elections at (845) 807-0400, email [email protected] or visit www.co.sullivan.ny.us.

A copy of the Address Confirmation Post Card is attached hereto as Exhibit B.

37. 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. Petitioners now understand that Board of Elections issued the Notice of

Cancellation based on a series of post-registration challenges and supporting affidavits

(collectively, the Challenge Affidavits) filed by members of the RCC against virtually every

Hasidic Jewish resident of Bloomingburg during the Jewish high-holy holiday of Rosh Hashana.

39. 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. The Challenge Affidavits contain vague, false and/or contradictory observations,

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.

3 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. As part of their investigation, the Board of Elections mailed each Challenged

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 Post-

Registration Challenge Determination) is annexed hereto as Exhibit F.

46. In its Post-Registration Challenge Determination, the Board of Elections decided

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. In rendering its Post-Registration Challenge Determination, the Board of

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

findings in its Post-Registration Determination suggests a severe prejudice against the

Challenged Voters. A summary of the Board of Elections gross omissions and obvious

disregard of any information in favor of the Challenged Voters is referenced in Petitioners

counsels letter of December 11, 2014, annexed hereto as Exhibit H.

51. The Board of Elections, in issuing its Notice of Cancellation, seeks to cancel

Petitioners voter registration based on the same vague, false, contradictory (and now stale)

information included in the Challenge Affidavits.

52. The Board of Elections decision to issue the Notice of Cancellation to Petitioners

and to require Petitioners to, once again, produce evidence establishing their voter qualifications

is simply unconscionable. As discussed above and alleged in the Berger Proceeding, the

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.

5 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. On February 27, 2015, the Board of Elections issued a perfunctory notice of

determination (the Cancellation Determination) purportedly cancelling Petitioners voter

registration. The Cancellation Determination is comprised of a cover letter and a table listing the

names of the 250 voters who were issued a Notice of Cancellation. The Board of Elections

indicated its determination with respect to each individual voter by checking a box labelled either

ACTIVE or TO BE CANCELLED.

60. The Cancellation Determination is arbitrary, capricious, contrary to law, and

constitutes a clear abuse of discretion by the Board of Elections.

61. As an initial matter, the Cancellation Determination fails to comply with 5-402

(3) of the Election Law, which provides in relevant part:

The board of elections shall notify immediately every person whose registration is cancelled after such person has responded, in person or by mail, to a notice sent pursuant to subdivision two of this section, of the action taken and the reason therefor, by written notice to the address from which he was last registered. Such notice shall advise such persons either of their right to reregister or their right to apply to a court of law for reinstatement, whichever is appropriate.

N.Y. Elec. Law 5-402 (emphasis added).

62. 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

as adequate to support a conclusion or ultimate fact; it is less than a preponderance of the

evidence but more than mere surmise, conjecture or speculation. Stoker v. Tarentino, 101

A.D.2d 651, 652 (3d Dept 1984). Put differently, there must be a rational basis for the decision.

Id. at 653, quoting Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231 (1974).

64. 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. The crucial determination whether a particular residence complies with the

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. This evidence includes, without limitation, statements and

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

decision to disenfranchise Petitioners.

69. The Board of Elections determination to cancel Petitioners voter registration is

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

voter registration but not his wifes and sons.

72. Based on the foregoing, the Board of Elections Cancellation Determination must

be annulled, in its entirety, as arbitrary, capricious, and contrary to law.

73. The failure to annul the Cancellation Determination results in the unlawful

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. Petitioners have no adequate remedy at law.

75. No previous application has been made for the relief sought herein or for the

Order to Show Cause annexed hereto, or for any similar relief.

WHEREFORE, Petitioners respectfully demand judgment against Respondents,

Pursuant to CPLR Article 78, 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, 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; and granting

Petitioners such other and further relief as this Court deems just and proper.

Dated: Uniondale, New York March __, 2015

HARRIS BEACH PLLC Attorneys for Petitioners By: _____________________ Jared A. Kasschau, Esq. 333 Earle Ovington Blvd., Suite 901 Uniondale, New York 11535 (516) 880-8484

ATTORNEY VERIFICATION

STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU )

I, JARED A. KASSCHAU, being duly sworn, state:

I am the attorney for the Petitioners, who are united in interest in this special proceeding.

The foregoing Verified Petition is true to my own knowledge, except as to matters therein stated

on information and belief and as to those matters I believe it to be true. The grounds of my

belief as to all matters not stated upon my knowledge are correspondence and other writings

furnished to me by Petitioners. This verification is not made by Petitioners because they are not

present in the county where I have my office.

_________________________ JARED A. KASSCHAU Sworn to before me this __ day of March 2015. ____________________ Notary Public

smilowitz v. prusinski

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