SAMUEL H. SLOAN,
Index No. 25230/2004
CHARLES E. KNAPP, GARY SINAWSKI, ROBERT CONROY, KING'S COUNTY INDEPENDENCE PARTY, DIANE HASLETT RUDIANO and against NERO GRAHAM, FREDERIC M. UMANE, WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, DOUGLAS A. KELLNER, TERRENCE C. O'CONNOR, NANCY MOTTOLA-SCHACHER, STEPHAN H. WEINER, Commissioners of Elections of the City of New York, constituting the Board of Elections in the City of New York,
PETITION FOR REHEARING OF THE DISMISSAL OF THIS PROCEEDING
Samuel H. Sloan, the petitioner herein, being duly sworn, states:
1. This proceeding is brought under Election Law Sections 16-100 and 16-102.
2. This proceeding was commenced on August 9, 2004. An Order to Show Cause was signed late in the afternoon of the same day. I waited in the courthouse for several hours while this process was taking place. Finally, after 5 minutes before 5:00 PM, as most of the regular court personnel was streaming out of their office on their way home, the clerks office gave me a copy of the signed order to show cause.
3. To my great surprise, the order to show cause set the hearing on this matter for 9:30 AM the following morning and required me to serve the motion papers on August 9, 2004. Thus, I had only seven hours late at night to serve these papers.
4. I first caught the subway and took the train to the New York City Board of Elections. I did this in great haste because I feared that they would close at 5:00 PM and I would not be able to serve the petition. Fortunately, when I got there, they were still working. I gave them the order to show cause and they time stamped it at 5:05 PM and gave me a copy. Please note the time stamp on the front page of the Order to Show Cause which is annexed hereto as Exhibit A.
5. I then went to Staples where I made more copies of the Order to Show Cause to serve on the other parties.
6. I called Gary Sinawski, Counsel of Record for the Independence Party, and Theodore Alatsas, Counsel of Record for the King's County Republican Party. Since neither of them were still in their respective offices, this being at about 5:30 PM, I left messages on their respective machines notifying them of the Order to Show Cause and the time and place for the hearing scheduled for the following morning.
7. Having made sufficient copies of the Order to Show Cause, I then spent the next several hours going to addresses in Manhattan and Brooklyn personally serving the respective parties.
8. I arrived at the Office of Gary Sinawski at 250 West 57th Street, Room 2017, Brooklyn NY at about 5:45 PM. When I arrived there, there was one lawyer in his office, an elderly man, but he was just leaving and walking out the door. He told me that he had no connection with Mr. Sinawski, even though they both worked in the same office. He told me to leave the papers on his secretaries desk, which I did.
9. Please note that service of papers on an attorney by leaving them at his law office is valid, good and sufficient service. A lawyer cannot evade service of papers by simply absenting himself from his office. I do not mean to suggest in any way that Mr. Sinawski was evading service of process. He was simply not there at 5:45 PM. I believe that he may be out of town.
10. I then went back to Brooklyn where I served the offices of Hy Singer and the King's County Republican Party at 26 Court Street and I went to the King's County Board of Elections at 345 Adams Street, which is also the Office of Diane Haslett Rudiano, and served the papers there. Please note the time stamp from the King's County Board of Elections on Exhibit A.
11. I then served Charles Knapp, the respondent-objector in this proceeding, at his residence at 458 State Street. I rang his doorbell and he came down and took the papers without any problem at all.
12. Finally, I took the long Q-Train ride with my baby down to Avenue U where I served Theodore Alatsas by leaving a copy of the order to show cause on his door at 2115 Avenue U.
13. I then went home, arriving at about 11:00 PM. Then, early in the morning, sent all parties plus the Board of Elections copies of the Order to Show Cause and the Petition by e-mail and I posted them on the Internet.
14. The hearing was set for 9:30 AM. There were 41 cases on the calendar. My two cases were the last. When my case was called, all parties were present. Robert Conroy, Chairman of the King's County Independence Party, was sitting in the audience. After three opposing attorneys had noted their appearances on the record, the court almost immediately dismissed my petition saying that I had not filed an affidavit of service.
15. I believe that this was wrong and should not have been done. There was no issue about an affidavit of service because all parties were present. An affidavit of service is only needed if someone fails to appear and a party requests a default judgment. Here, there was no such issue. All parties were present in the courtroom.
16. Fran Miller, who said that she was appearing for the law firm of Harry Kresky, complained that she had not been served with the papers. She said that she had only received them by Fax. Apparently, the court failed to notice something wrong with this. What was wrong was that Fran Miller was not on the service list. She is not a defendant nor does she represent any party nor had she appeared before the Board of Elections.
17. She said that she had received the papers by Fax. However, I had not sent her a Fax. I do not even have a fax machine. Almost without doubt, she must have received the papers from Charles Knapp, who is a respondent and was served with the papers.
18. The court said that I was required to file the affidavits of service by 9:30 AM according to the court rules which I should have read. A clerk handed me a copy of a notice published in the New York Law Journal, which is annexed. I pointed out that I am not a lawyer and I do not read the Law Journal. The court replied that he cannot bend the rules for non-lawyers and the rules required me to file the affidavit of service by 9:30 AM. However, the court was wrong. The notice in the Law Journal merely states that the affidavit of service must be filed. It does not say when. I did in fact file affidavits of service later in the day. Copies of the affidavits of service are annexed hereto along with a stamp showing that they were filed in the Clerks Office on August 10, 2004. (Incidentally, I also had to attend a long hearing at the Board of Elections at 42 Broadway, New York NY the same day.)
19. I also pointed out to the court that it was physically impossible for me to serve all the papers and prepare and file affidavits of service by 9:30 AM. I was given the order to show cause at 4:55 PM. I had to go all over Manhattan and Brooklyn with my baby serving papers until late in the night and then sleep and get up the next morning to make it to the court on time. It is impossible to find a notary public to notarize an affidavit of service late at night and difficult to find one early in the morning or at any other time. I am a notary public myself but I cannot notarize my own signature.
20. In hearing the other cases as they were called, I observed that in every other contested case, the court questioned the affidavit of service. In one case, the court complained that the moving party had used an old Bloomberg Form. In another case, which was apparently continued from the previous day, the court complained that the affidavit of service had been brought to the court by the process server at 9:45 AM whereas the court had ordered it to be filed by 9:30 AM.
21. One of these petitions was dismissed, that one being for the 15 minute lateness, while another was continued for a hearing the next day, which is today.
22. My case may have been different from those in that in my case all parties were present. However, I believe that in the case where the complaint was that an old Bloomberg Form had been used, the attorney was saying that his adversary was present in court. I certainly cannot claim that the court was singling me out for discrimination. Every petitioner was having difficultly complying with the unusual requirements by the court regarding affidavits of service.
23. It is important to note that every petitioner in this group of cases is in court because he was ruled off the ballot by the Board of Elections. Because of this, I question whether there should even be such a strict requirement for service of process. One petitioner claimed that his adversary, a candidate for election, barricaded herself in her apartment and called security guards and finally the police to keep the process server away from her front door. The process server had waited for six hours outside her door trying to serve her and could hear her voice inside. I question whether in such cases of a person who is obviously evading service of process the court should dismiss the proceeding, as it did, instead of proceeding to the merits. These cases are essentially appeals. Every petitioner here was the losing party before the Board of Elections. A respondent to an appeal cannot be allowed to defeat the appeal merely by evading service of process. Service by mail should be sufficient.
24. In a normal lawsuit, the process server has an advantage, to the extent that the defendant usually does not know that a lawsuit is about to be filed and will not know that a process server is coming to serve him and therefore often will not evade service. However, in the special proceedings before this court, the respondents know the exact last day to file and will know that simply by evading service or absenting from the jurisdiction for a few hours, the respondent can defeat the petitioner's right to be heard. This cannot be allowed.
25. In my case, now that the affidavits of service have been filed plus all the parties have already appeared in court, this Order to Show Cause should be granted and this case should be restored to the calendar for a hearing on the merits.
26. No prior application has been made for the relief requested herein.
WHEREFORE, for all the reasons set forth above, this petition for a rehearing should be granted and this petition restored to the calendar.
Samuel H. Sloan
Sworn to Before me this 11th
Day of August 2004
Samuel H. Sloan
920 Belmont Avenue
Brooklyn NY 11208
Here are the petitions I have filed in the United States Supreme Court, in HTML Format: