August 23, 2004
Petition to Appeal in Sloan vs. Knapp, NY Sup. Index No. 25230/2004
TO THE HONORABLE JUDGES OF THE NEW YORK COURT OF APPEALS:
Dear Honorable Sirs:
I hereby petition for leave to appeal from the decision of the New York Court of Appeals - Second Department dated August 19, 2004 which affirmed the decisions of the Kings County Supreme Court dated August 10, 2004 which removed my name from the ballot for the September 14, 2004 primary election of the Independence Party for the Tenth Congressional District and the decision dated August 13, 2004 which granted my petition for a rehearing and upon rehearing affirmed the prior decision.
I believe that the decision by the Appellate Division - Second Department was erroneous for a number of reasons, the most important of which was that the decision cited the wrong provision of CPLR. The decision cited CPLR 2103 (a). However the applicable provision is CPLR 2103 (b). This is because the Order to Show Cause required service on Theodore Alatsas and Gary Sinawski and both Theodore Alatsas and Gary Sinawski are attorneys at law and members of the New York Bar.
CPLR 2103 (b), unlike CPLR 2103 (a), does not require service by a person "not a party" to this proceeding. CPLR 2103 (b) does not require personal service. It allows for service on the office of the attorney, by leaving it with his secretary or if the secretary is not present by leaving it in his mail slot.
This is what petitioner did. In addition, if the Order to Show Cause required personal service, that was impossible because the petitioner did not receive a copy of the Order to Show Cause until 4:55 PM on the last day to file and the Order to Show Cause required him to serve papers by Midnight the same night. This the petitioner did by leaving a copy of the order to show cause on the desk of the secretary of Gary Sinawski, because Gary Sinawski was gone for the day, and by leaving a copy of the order to show cause and the papers upon which it was based on the doorknob of Theodore Alatsas, all before Midnight the same night.
Petitioner later moved for a rehearing. The second order to show cause was signed on August 11, 2004. This time, the court gave the petitioner the more reasonable time of Midnight the following day to serve papers. Petitioner personally served attorney Gary Sinawski at his office and his secretary signed receipt of service.
CPLR 2103 provides, in pertinent part:
Rule 2103. Service of papers. (a) Who can serve. Except where otherwise prescribed by law or order of court, papers may be served by any person not a party of the age of eighteen years or over.
(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party`s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:
1. by delivering the paper to the attorney personally; or
2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney`s last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period; or
3. if the attorney`s office is open, by leaving the paper with a person in charge, or if no person is in charge, by leaving it in a conspicuous place; or if the attorney`s office is not open, by depositing the paper, enclosed in a sealed wrapper directed to the attorney, in the attorney`s office letter drop or box; or
4. by leaving it at the attorney`s residence within the state with a person of suitable age and discretion. Service upon an attorney shall not be made at the attorney`s residence unless service at the attorney`s office cannot be made; or
It is noteworthy that when this case was presented to the Appellate Division, the Appellate Division did not require personal service of the brief on the attorneys. Service by e-mail was sufficient.
The case presented here is essentially an appeal of an administrative order of the New York Board of Elections which removed the name of the petitioner from the ballot. The objector in the Knapp and Independence Party Case was Charles E. Knapp . However, on the form for general and specific objections, Charles E. Knapp listed as his contact person Gary Sinawski. Thus, it was not necessary for the petitioner to serve Charles E. Knapp . Service on Gary Sinawski was sufficient.
In any event, Petitioner did personally serve Charles E. Knapp, finding him home that night.
There were three other appeals filed at the same time as Petitioner's appeal and all of them touch on related issues. In the appeal of Towns vs. Joseph from a decision of the Appellate Division - Second Department dated August 19, 2004, the fact pattern was the same as that of all cases from the King's County Supreme Court. There were 42 cases on the calendar there and in all 42 cases Judge Joseph Levine sua sponte questioned the affidavits of service. The case of Towns vs. Joseph had exactly the same facts as the case of Andre Soleil (which was misspelled as "Anthony Solaris (phonetic spelling)" in petitioner's brief below). The only difference is that Mr. Towns having one million dollars in campaign contributions every time he runs in an uncontested race for Congress, has a lot of money to pay for an appeal, whereas Mr. Soleil does not.
In the Supreme Court, Judge Levine did not dismiss the original petition because Petitioner served the order to show cause himself, but rather because Petitioner failed to file the affidavits of service BEFORE 9:30 AM. Judge Levine dismissed several other petitions for the same reason. Those others have apparently not appealed, but they could still appeal, as their statutory time has not yet run.
The two Nassau County cases which are also on appeal to this court involve Nassau County judges who ruled in EXACTLY THE OPPOSITE WAY from Judge Levine in the instant case, and yet the Second Department affirmed those two decisions. Although a different panel of the Appellate Division was sitting and the affirmance was on different grounds, Petitioner submits that differing decisions by two different panels of the same appellate division constitutes ground for this Court of Appeals to hear this appeal.
The court in "Matter of Flores v. Kapsis", decided on appeal on August 19, 2004, Justice Stack ruled:
Respondents' Application to Dismiss
Respondents moved for dismissal of petitioners' application for lack of jurisdiction on the grounds of defective service. Respondents alleged that pursuant to CPLR §2103 "papers may be served by any person not a party [to the action]". They submitted that Michael S. Peregine, a respondent, had served the order to show cause and accompanying documents. This service was made, as ordered, by "delivering a copy thereof to . . . the United States Postal Service . . . waiving the requirement of a receipt signature, to each said respondent's home . . . ." Order to Show Cause, ¶ 4. The same direction for service existed for all respondents.
Evidence presented at the hearing demonstrated that counsel for petitioners accompanied by respondent Michael S. Peragine, traveled to the Hicksville Post Office where the express mail envelopes were deposited. Each envelope bore the return address of respondent Michael S. Peragine and, in the space provided to waive the receipt signature, he placed his initials.
While it is correct that any envelope not delivered would have been returned to the respondent's home address and equally correct that he controlled the waiver of signature, these factors do not equate with "service by a party." The intent of the statute was clearly to avoid personal service by one party on another. Further, CPLR §312-a states in pertinent part, "As an alternative to methods of personal service . . . a notice of petition and petition may be served by the plaintiff or any other person by mailing to the person . . . to be served." Mckinney's Consolidated Laws, CPLR, Article 3
The cases cited by counsel are inapposite in that they refer to personal service by one party on the other which service resulted in a dismissal of the action. This court does not find respondents' argument persuasive in this regard. Accordingly, respondents' application to dismiss for lack of jurisdiction is denied.
Here it can be seen that the Nassau County Judge decided that the fact that petitioner Peragine served the papers himself was not fatal.
In addition, the requirement by Judge Levine that the papers be served personally, and only seven hours given to do so, was not in conformity with the statute. In his order to show cause, Petitioner copied the exact words of a standard form in the book entitled "Election Law Forms" page 38. A copy of that page is annexed hereto. The order to show cause prepared by Petitioner said:
and that personal service of the Order to Show Cause together with a copy of the papers upon which it is granted upon the individual respondents-objectors CHARLES E. KNAPP, GARY SINAWSKI, ROBERT CONROY and KING'S COUNTY INDEPENDENCE PARTY designated as objectors be dispensed with, and that service of a copy of this order upon said respondent-objectors be made by enclosing the same in a securely sealed and duly postpaid wrapper addressed and mailed to each of the said respondent-objectors on or before the _____ day of August, 2004 be deemed good and sufficient service thereof.
As can be seen, that is word for word exactly the same language that is used in the book "Election Law Forms". The same or very similar language is also used in Bender's Forms, McKinney's Forms and every other book of forms dealing with New York Election Law. Thus, Judge Levine made his own special rules, rules which have not been made by any other New York Supreme Court Judge.
The end result was that on August 9, 2004 there were 42 cases on Judge Levine's Election Law calendar and in each and every one of those 42 cases Judge Levine sua sponte raised the issue of affidavit if service, even though in almost every case the opposing party was present in court and was not contesting service. In all but one of those 42 cases, Judge Levine dismissed the petition on affidavit of service grounds. In the remaining case, Judge Levine dismissed the petition on a different grounds. In is important to note that in almost all of those 42 cases, the petitioner was represented by highly paid and highly qualified counsel. It is a remarkable fact that in 42 cases (not counting Petitioner's two cases) none of those 40 attorneys could seem to put together a simple affidavit of service that would satisfy Judge Levine.
The end result of the present cases now on appeal is not merely that the voters in the Tenth Congressional District are deprived of the right to vote for Petitioner. Rather, they are deprived of the right to vote AT ALL.
This is because in the Towns vs. Joseph appeal, the Appellate Division kicked off the ballot Mr. Joseph, who was the only primary challenger to Ed Towns.
Moreover, in the Sloan vs. Knapp and Sloan vs. Graham appeals the same panel of the Appellate Division removed from the ballot the only challenger to Mr. Towns in the General Election on November 2, 2004.
As a result of these two contradictory decisions, the September 14, 2004 primary will be uncontested and the November 2, 2004 General Election will also be uncontested. Mr. Towns will have been re-elected without facing an opponent. This raises a Constitutional question.
It is noteworthy that Mr. Towns has never faced a seriously contested election since the 1980s. One wonders how many other times Mr. Towns has succeeded in having ALL of his opponents thrown off the ballot. One also wonders what Mr. Towns does with the ONE MILLION DOLLARS he reports to the Federal Election Commission that he has received in campaign contributions every two years to fight these uncontested races.
Another appeal to this court, also involving Nassau County, but decided by a different judge, also pertains to an issue in this case, because the petitioners there are the same persons as the respondents here. In Fischer v. Peragine, Justice De Maro held:
"The only issue remaining for the Court to address is the avowed policy of respondents, Chairman, Peragine and Vice Chair Bonnie Green, to add a substantial number of candidate names for Committee members, to nominating petitions, without the permission of such candidate. Where the names of persons are put on the ballot as candidates without their consent there is a "fraud" committed on the voters of the same party. Richardson v. Luizzo, 64 AD2d 942 affd. 45 NY2d 789."
In conclusion, the court found the respondents guilty of this fraud and barred them from holding party office.
All this was obviously a conspiracy to stop Sam Sloan from being the candidate.
This case should be remanded for hearings on these issues.
It is noteworthy that the local press has commented on this situation. For example, Flatbush Life for August 23, 2004, page 10 states:
"Sloan's effort was an example of how impossible it can be for a non-lawyer to run for office and navigate the legal system on his own."
Please note the use of the word IMPOSSIBLE to describe Petitioner's situation. This raises issues of Constitutional proportions.
For all of these reasons, this petition for appeal should be granted and the decisions below should be reversed.
Samuel H. Sloan