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D45822
W/hu
Argued - May 28, 2015
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SHERI S. ROMAN
O. HINDS-RADIX, .
2014-09293 . DECISION ORDER

In the Matter of Michael Parietti, et a1., respondents, 
Town of Ramapo, et a1., appellants.

(Index No. 1712/14)

 

In a proceeding pursuant to Election Law article 16, in effect, inter alia, for judicial
inspection of absentee ballots and af?davit ballots cast in connection with a special election that was
conducted on September 30, 2014, pursuant to Town Law 81 to determine certain propositions,
the Town of Ramapo and Christian G. Sampson, in his capacity as Ramapo Town Clerk, appeal from
a ?nal order of the Supreme Court, Rockland County (Garvey, .), dated October 7, 2014, which
granted the petition to the extent of inspecting the instructions and notices on the absentee ballot
applications and thereupon, inter alia, directed that the ballots not be counted, invalidated the subject
special election, and directed that a new special election be conducted.

ORDERED that the ?nal order is reversed, on the law, with costs, that branch of the
petition which sought inspection of the instructions and notices on the absentee ballot applications
is denied, and the proceeding is dismissed.

In September 2012, the petitioners ?led a referendum petition with the appellant
Town of Ramapo seeking to compel the Town to conduct a referendum pursuant to Town Law 
81(2) on propositions to increase the number of Town council members from four to six, and to
establish a ward system for the election of Town council members (see generally Matter of Parietti
Sampson, 117 830). On August 21, 2014, the Town Board adopted Resolution 2014-357,
in which it resolved to hold a special election with respect to the two propositions on September 30,
2014.

On the date of the special election, the petitioners commenced the instant proceeding
pursuant to Election Law article 16, alleging various irregularities, inter alia, in the notices and
instructions pertaining to the absentee ballots and af?davit ballots, and requesting judicial inspection

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of those ballots. -

The same day, the Supreme Court issued a temporary restraining order directing the
Town to preserve all ballots and prohibiting it from canvassing the ballots or announcing any results.
Thereafter, on October 7, 2014, the court issued a ?nal order granting the petition to the extent of
inspecting the language on the subject absentee ballot applications, and determining that there were
certain irregularities in the instructions. Further, while recognizing that the petitioners had not
requested this relief in their petition, the court thereupon invalidated the special election, directed
that the ballots not be counted and the results of the special election not be announced, ordered the
destruction of all ballots, and directed the Town to conduct a new special election. The court
temporarily stayed the destruction of the ballots to afford the appellants an opportunity to appeal and
seek a stay pending appeal. By decisiOn and order on motion of this Court dated November 3, 2014,
we directed that all ballots, voting records, and election materials relating to the subject special
election be preserved pending the hearing and determination of this appeal.

At the outset, we agree with the appellants that the Supreme Court did not have
authority, under the Election Law, to invalidate a special town election conducted pursuant to Town
Law 81(2) (see Matter of Rettalz'ata-Tepe vKatz, 46 850, 852; Moses vLee, 44 829).
Moreover, contrary to the allegation in the petition, Election Law 16-112 does not provide
authority for the court to inspect absentee ballot applicationswith respect to a special town election
such as this.

The authority to invalidate the special election may be exercised by the court in the
context of a hybrid proceeding pursuant to CPLR article 78 to review a determination made by the
Town based on the results of the referendum and action for a declaratory judgment (compare Matter
of Bayes vAllen, 32 990, a?d 26 709, with Matter of Delgado Sunderlana?, 97 
420). However, the petitioners did not commence such a hybrid proceeding/action, the Supreme
Court did not convert this Election Law proceeding, and we decline to do so. Under the
circumstances presented here, such a hybrid proceeding/ action would be premature at this juncture,
as the appropriate of?cials have not yet canvassed the vote and determined the results of the special
election pursuant to the Election Law and the Town Law. Until such a determination is made, we
cannot ascertain whether the petitioners have been aggrieved, or whether the alleged irregularities
in the electoral process had any impact on the outcome of the election (see Matter of Bayes vAllen,
32 at 990-991; see also Matter of Davis Commissioner of Educ. of State of N. Y., 189 
1 046, 048).

Accordingly, the Supreme Court should not have granted the petition to the extent
of inspecting the instructions and notices on the absentee ballot applications and thereupon, inter
alia, directed that the ballots not be counted, invalidated the subject special election, and directed that
a new special election be conducted. Instead, it should have denied that branch of the petition which
sought inspection of the instructions and notices on the absentee ballot applications, dismissed the
proceeding, and permitted the appropriate of?cials to canvass the ballots in accordance with the
procedures articulated in the Election Law and the Town Law.

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In light of our determination, we need not address the parties? remaining contentions.
RIVERA, .P., LEVENTHAL, ROMAN and ., concur.
ENTER: 41?

Aprilanne go mo
Clerk of the Court

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