To commence the statutory time
period of appeals as of right
(CPLR 5513[0, you are advised
to serve a copy of this order,
with notice of entry, upon all
parties.

FILED AND ENTERED
ON
2017
ROCKLAND
COUNTY CLERK

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
Present: HON. ALAN D. SCHEINKMAN,
Justice.
X
In the Matter of the Application of
LOUIS C. BABCOCK,
Index No. 1981/16
Petitioner,
-against—
DECISION AND ORDER
PATRICIA GIBLIN,
and
LAWRENCE GARVEY, AS CHAIRMAN OF THE ROCKLAND
COUNTY REPUBLICAN COMMITTEE, THE ROCKLAND
COUNTY REPUBLICAN COMMITTEE, THE EXECUTIVE
COMMITTEE OF THE ROCKLAND COUNTY REPUBLICAN
COMMITTEE
and
LAURENCE C. TOOLE, in his capacity as Clerk to the
Rockland County Legislature, LEGISLATOR ALDEN WOLFE,
in his capacity as Chair of the Legislature, LEGISLATOR
PHILIP SOSKIN, in his capacity as Chair of the MultiServices Committee of the Rockland County Legislature,
and the ROCKLAND COUNTY LEGISLATURE
and
LON M. HOFSTEIN, DOUGLAS J. JOBSON, CHRISTOPHER
J. CAREY, LAURIE SANTULLI, CHARLES J. FALCIGLIA,
PATRICK J. MORONEY, and VINCENT D. TYLER, in their
capacity as members of the Republican Caucus of the
Rockland County Legislature,
Respondents.
X
Scheinkman, J:
This election law proceeding was commenced by Petitioner Louis C. Babcock

 Matter of Babcock v Giblin

Page 2

("Petitioner" or "Babcock") who, until January 1, 2017, was the incumbent Republican
Commissioner of Elections of Rockland County. He disputes the processes that have led to
putative nomination of Respondent Patricia Giblin ("Giblin") as the Republican Commissioner of
Elections of Rockland County for the term commencing January 1, 2017. Specifically, Petitioner
seeks the following items of relief:
directing the Rockland County Republican Party to safeguard and preserve
the paper ballots from the Executive Committee meeting held November 29,
2016;
declaring the vote at the Executive Committee meeting held November 29,
2016 invalid and ordering the Rockland County Republican Party to convene
a convention of the full Republican Committee for the purpose of
recommending a Republican Election Commissioner for the term of office to
begin on January 1,2017;
enjoining the Rockland County Republican Caucus of the Rockland County
Legislature from taking any action with regard to the appointment of a
Republican Election Commissioner;
directing the Rockland County Legislature to hold the purported Certificate
of Recommendation submitted by Respondent Lawrence Garvey on
Wednesday, December 1, 2016, and purporting to recommend Giblin;
enjoining the Rockland County Legislature from taking any action with regard
to the appointment of a Republican Election Commissioner;
directing the Rockland County Legislature to consider Babcock as a holdover
Republican Election Commissioner until the matter is resolved by the Court.
Petitioner also seeks to invoke the court's jurisdiction to rule on the Republican
Party's procedure and process for recommending the appointment of an election commissioner.

RELEVANT BACKGROUND
The Order to Show Cause which brought on this proceeding was signed by Hon.
Thomas E. Walsh II, then an Acting Justice of the Supreme Court, on December 28, 2016.
The courts were then in Holiday Recess and only Duty Judges were available to hear
emergency applications. The undersigned, as Administrative Judge of the Ninth Judicial
District and as the Duty Judge for Westchester County, was contacted by Judge Walsh who
advised that, while he would sign the Order to Show Cause, he would recuse himself from
presiding over the merits of the matter since he had just been a candidate of several parties,
including the Republican Party, for Supreme Court. Because this matter was time-sensitive,
the undersigned agreed to preside over the case and Judge Walsh made the Order to Show
Cause returnable before the undersigned on December 29, 2016 at 3:30 p.m.

 Matter of Babcock v Gib/in

Page 3

On the return date, Petitioner's counsel, Lawrence A. Weissman, Esq., appeared
with Petitioner and presented affidavits of service on all named Respondents. Lino Sciarretta,
Esq., appeared for Respondent Rockland County Republican Committee; Lawrence Garvey,
Esq., appeared for himself; and Larraine S. Feden, Esq. and Venita Whidbee-Jordan, Esq.,
both of the Rockland County Attorney's Office, appeared on behalf of the Rockland County
governmental respondents. The Court heard oral presentations from all counsel. Counsel
appearing for Respondents did not wish to make written submissions, or even interpose
written answers, given the press of time. Since it appeared to the Court that the issues
presented were matters of law based on undisputed facts, the Court indicated that it would
endeavor to render a prompt determination.
In the Order to Show Cause signed on December 28, 2016, Judge Walsh had
directed that the Rockland County Legislature and the Republican Caucus of the Rockland
County Legislature take no action related to the appointment of a Republican Election
Commissioner. On the return date, it developed that on December 28, 2016, shortly before
the issuance of the Order to Show Cause, the Republican Caucus of the Rockland County
Legislature had met and had recommended Giblin as the Republican Election Commissioner.
While a certification of this action was signed by Respondent Lon Hofstein, as Republican
Minority Leader of the Rockland County Legislature, it had not been officially filed as yet. This
Court, on the return date, stayed the filing of the certification pending this determination.

THE STATUTORY PROCESS FOR NOMINATING
A COUNTY ELECTIONS COMMISSIONER
The events that transpired leading to this proceeding are best understood with
the benefit of knowledge of the procedures required by law to nominate a commissioner of a
county board of elections. By law, each County is to have two Elections Commissioners, one
who is recommended by and a member of each of the two major political parties (Election
Law, § 3-200). The process by which County Election Commissioners are appointed is set
forth in Section 3-204 of the Election Law, the salient provisions of which are as follows:
At least thirty days before the first day of January of any year in
which a commissioner of elections is to be appointed, the chairman
or secretary of the appropriate party county committee shall file a
certificate of party recommendation with the clerk of the appropriate
local legislative body.
Party recommendations for election commissioner shall be made
by the county committee or by such other committee as the rules of
the party may provide, by a majority of the votes cast at a meeting
of the members of such committee at which a quorum is present....
The certificate filed shall be in such form and contain such
information as shall be prescribed by the state board of elections.
Commissioners of election shall be appointed by the county

 Page 4

Matter of Babcock v Giblin
legislative body....Provided, however, that if a legislative body shall
fail to appoint any person recommended by a party for appointment
c as a commissioner pursuant to this section, within thirty days after
the filing of a certificate of recommendation with such legislative
body, then the members of such legislative body who are members
of the political party which filed such certificate may appoint such
person. And further provided, if there are no members of the
legislative body who are members of the political party which filed
such certificate, the appointment shall take effect upon the
expiration of thirty days from the date that the certificate was filed.
If none of the persons named in any of the certificates filed by a
party are so appointed within sixty days after the filing of any such
certificate, then such party may file another certificate within thirty
days after the expiration of any such sixty day period
recommending a different person for such appointment. If a party
fails to file a certificate within the time prescribed by this section,
the members of the legislative body who are members of such
party may appoint any eligible person to such office.

RELEVANT FACTS
It is undisputed that the full Republican County Committee (the "County
Committee") held a reorganization meeting on September 28, 2016. However, the County
Committee did not act with respect to the recommendation of an Election Commissioner for
Rockland County. Instead, the matter of a recommendation of an Election Commissioner was
placed before the Executive Committee of the Rockland County Committee (the "Executive
Committee") at a meeting held on November 29, 2016.
Pursuant to the Rules and Regulations of the Republican County Committee of
Rockland County ("By-Laws"), the Executive Committee is composed of certain officers of the
County Committee (Chair, Vice-Chairs, etc.), the chairs of each town committee, and other
designated town or state party officers.
Babcock alleges that Garvey, rejecting requests or inquiries from certain county
committee members, refused to place the matter of the Election Commissioner
recommendation before the County Committee at its reorganization meeting on September
28, 2016, though it was past practice for the recommendation to be done at the party
reorganization meeting. Babcock avers that Garvey did this because Garvey could not control
the vote of the County Committee and, further, at the Executive Committee meeting, Garvey
refused to allow Babcock's name to be placed in nomination and refused to count any votes
for Babcock. Babcock further alleges that Giblin lost the vote 16 to 15 (though he does not
name the opposing candidate) but Garvey then pressured and threatened members of the
Executive Committee to either vote for Giblin or abstain.
On November 30, 2016, Garvey signed a document, on the letterhead of the
Rockland County Republican Committee, addressed to Respondent Laurence 0. Toole, Clerk

 Page 5

Matter of Babcock v Giblin

to the Rockland County Legislature, which requested that the letter serve as a Certificate of
Nomination by the Rockland County Republican Committee for the position of Rockland
County Republican Election Commissioner ("November 30 Certificate"). The November 30
Certificate recited that at a duly called meeting of the Executive Committee, held on November
29, 2016 at 7:00 p.m., Giblin was nominated by majority vote to serve a four year term as
Election Commissioner. Garvey requested that Toole present Giblin's name to the Rockland
County Legislature for approval within thirty (30) days.
On December 9, 2016, Elana L. Yeger, Esq., Senior Legislative Counsel, wrote
to Garvey on the letterhead of the Legislature of Rockland County. In her letter, Ms. Yeger
stated that she was formally notifying Garvey the November 30 Certificate was invalid under
Election Law Section 3-204. According to Ms. Yeger, the defects were that the November 30
Certificate failed to set forth: a) that there was a quorum present at the meeting where the
recommendation was made; b) that the nominee (Giblin) was a registered voter of Rockland
County; and c) that the nominee (Giblin) was a duly enrolled member of the Republican party.
Ms. Yeger went on to state as follows:
Section 3-204(4) contains a default provision that takes
effect if a timely and valid certificate is not filed. The end of that
subdivision reads as follows: "If a party fails to file a certificate
within the time proscribed by this section, the members of the
legislative body who are members of such party may appoint any
eligible person to such office." In other words, even though the
Certificate of Nomination is invalid, the Republican members of the
Legislature can still appoint the election commissioner of their
choice.
For all the reasons enumerated above, I am unable to refer
the nomination of Patricia A. Giblin to the relevant standing
committee for consideration, and the full legislature will not be
voting on her nomination. Instead, the Republican members of the
legislature will have the opportunity to appoint any eligible person
as the Republican Election Commissioner at a meeting of the full
(emphasis in original).
legislature
According to a certificate issued by Respondent Lon Hofstein, Republican
Minority Leader, on December 28, 2016, a quorum of Republican County Legislators met and
a majority recommended Giblin to be appointed Republican Election Commissioner, with
Giblin being a registered voter in Rockland County and an enrolled Republican (the
"December 28 Certificate").
LEGAL ANALYSIS
Petitioner's primary argument is that the Rockland County Republican Executive
Committee was not authorized to recommend the Republican Elections Commissioner and,

 Matter of Babcock v Giblin

Page 6

therefore, the actions of the Executive Committee in purporting to recommend Giblin were
void, illegal, contrary to law and without legal effect. While Petitioner also assails the way the
process by which the Executive Committee came to make a recommendation, this contention
would be entirely academic in the event that the Executive Committee had no authority to act
anyway.
The statute is crystal clear that party recommendations for election
commissioner are to be made by the county committee or by such other committee as the
rules of the party may provide (Election Law, § 3-204[21). The By-Laws of the Rockland
County Republican Committee, a copy of which is annexed to the Petition and the authenticity
of which has not been disputed, provide, as follows in Section 6 (Subdivision F):
F.

The Executive Committee shall have the full power of and
act in the place and stead of the County Committee when
the full County Committee is not in session including the
selection of candidates and appointments.

The Court reads this provision to mean exactly what it says — when the full
County Committee is not in session, the Executive Committee has full power to act for the
County Committee, including the powers relating to selection of candidates and appointments.

Since Petitioner has not shown that the County Committee was in session on
November 29, 2016, and implies that it was not in session, under the By-Laws, the Executive
Committee was empowered, by the By-Laws, to act in the place and stead of the County
Committee with regard to the appointment of an Election Commissioner. Such delegation of
authority is specifically authorized by Election Law Section 3-204[2].
The Court also declines Petitioner's invitation to conduct a hearing into the
procedures whereby candidates for recommendation were put, or not put, before the
Executive Committee and the methodology by which the Executive Committee conducted its
vote on who to recommend. In Matter of Lehrer v. Cavallo, 43 A.D.3d 1059, 1060-1061 [2d
Dept 2007]), the Appellate Division, Second Department wrote:
It is well settled that "internal issues arising within political parties
are best resolved within the party organization itself and judicial
involvement should only be undertaken as a last resort" (Matter of
Bachmann v Coyne, 99 AD2d 742 [2d Dept 1984]; see Matter of
Independence Party State Comm. of State of N.Y. v. Berman, 28
AD3d 556, 558 [2d Dept 2006]). "Judicial intervention is only
warranted upon a clear showing that a party or its leaders have
violated the [Election] Law or the party's own rules adopted in
accordance with law, or otherwise violating the rights of party
members or the electorate" (Harding v. Harrington, 127 Misc2d 5,
5-6 [Sup Ct New York County 1984], aff'd 104 AD2d 544 [1st Dept
1984]; see Matter of Bachmann v. DeFronzo, 164 AD2d 926, 928
[2d Dept 1990]; see also Matter of Kahler v. McNab, 48 NY2d 625,

 Matter of Babcock v Giblin

Page 7

626 [19791.
In Matter of Lehrer v Cavallo, supra, the Appellate Division ruled that it was an
improvident exercise of discretion for Supreme Court to have ordered a new organizational
meeting and party elections where the claimed irregularities were not of such a nature as to
establish the probability that the result of the election would be changed by a shift in, or
invalidation, of the questioned votes. The Appellate Division held that petitioners were required
to make a clear showing that the conduct of the meeting violated the Election Law or involved
such fraud or irregularities as would render it impossible to determine who was rightfully
nominated or elected at the meeting.
Petitioner herein does not claim that the procedures followed at the November
28, 2016 meeting violated any provision of the Election Law (other than Section 3-204,
discussed above) or any provision of any rules of the Rockland County Republican Party. Nor
do Petitioner's allegations that Garvey improperly precluded to entertain his nomination or
influenced votes entail allegations of such fraud and irregularity as to render it impossible to
determine that Giblin was the choice of the majority of the Executive Committee. Indeed,
Petitioner does not claim that he was the rival candidate who narrowly lost on November 28,
2016 prior to Garvey's alleged arm-twisting.
In any event, it also remains that the County Legislature, through its legislative
counsel, determined that the November 30 Certificate was invalid and declined to consider the
recommendation contained therein. By this legislative determination Petitioner, in fact,
obtained the very relief he seeks herein— the invalidation of the November 30 Certificate.'
The real question presented is whether Petitioner is entitled to the remedy that
he seeks — the restarting of the process with a vote by the County Committee. The Court
answers this question in the negative.
'This Court has serious questions as to whether a county legislative attorney has
the authority to unilaterally declare the invalidity of a certificate tendered to the Legislature
under Section 3-204. Likewise, the Court questions whether the legislative counsel has
the authority to "refer" (or not refer) the nomination of a person to an office to the
appropriate committee. Such actions would seem to be reserved for the Legislature itself,
not a mere employee. However, the validity of Ms. Yeger's letter has not been questioned
by either side; in particular, while the Petition refers to the issuance of the letter, the
Petitioner does not request that the Court invalidate the letter. Moreover, Ms. Yeger's letter
reflects that copies were sent to, among others, the Chairman and Minority Leader of the
County Legislature and there is no indication that either sought to have the ruling of the
legislative counsel appealed to the full Legislature. The Court further notes that the form
of the certificate is, by statute (Election Law, § 3-204[31), to be proscribed by the State
Board of Elections. Ms. Yeger's letter contained a blank copy of the State Board form. A
comparison by the Court of the State Board form with the November 30 Certificate tends
to support the view of Ms. Yeger that specific information required by the State Board form
was absent from the November 30 Certificate. Because the November 30 Certificate was
not filed until almost the very last day within which such a certificate could be timely filed,
there was insufficient time to allow for a submission of a compliant document.

 Matter of Babcock v Giblin

Page 8

First, contrary to Petitioner's argument, the Executive Committee of the Rockland
County Committee was empowered to make the recommendation, as explained above.
Second, while the County Committee could have made the recommendation,
and could have done so at the September 28, 2016 organization meeting, or at a special
meeting, Petitioner does not allege that he followed the procedures set forth in Section 10 of
the By-Laws to compel a special meeting of the County Committee. Under that Section of the
By-Laws, a Special Meeting of the County Committee may be called by the Executive
Committee or by at least 20% of the members of the County Committee representing a
minimum of at least five (5) election districts in three (3) of the towns in Rockland County.
Thus, Petitioner had, and failed to use, any of three available remedies to have the County
Committee make the recommendation of an Election Commissioner — have a majority of the
County Committee vote in connection with the Commissioner's position at the reorganization
meeting; have a majority of the Executive Committee vote to hold a meeting for that purpose;
or else obtain the necessary signatures on a petition to call such a County Committee
meeting. As a member of both the County Committee and the Executive Committee, he could
have availed himself of any of these procedures.
Third, Petitioner did not commence this proceeding until December 28, 2016,
just a few days prior to the expiration of his current term and the January 1, 2017 start of the
next term. Pursuant to Election Law Section 3-204(1), a party recommendation must be made
"[a]t least thirty days before the first day of January of any year in which a commissioner of
elections is to be appointed". Thus, the statute sets the last day on which a certification of
recommendation can be timely filed as December 1. It is now simply too late for a certification
to be filed; hence, there would be no point to conducting a meeting which could lead only to an
untimely filing. Petitioner should have sought relief after the County Committee declined to
make a recommendation at the September 28, 2016 reorganization, either by seeking to have
the Executive Committee call a County Committee meeting or petitioning by the requisite
number of County Committee members to call a County Committee meeting. There was then
ample time in which such recourse could have been pursued, not to mention to seek judicial
relief, perhaps also seeking to stay, toll or extend the statutory time period set in Section 3204(1) before it expired.
Lastly, Section 3-204[4] provides a fallback procedure in the event that a
recommendation from a county political committee is not properly made (see Ryan v Albany
County Democratic Committee, 97 Misc2d 935, 939 [Sup Ct Albany County 1979], affirmed,
68 AD2d 1014 [3d Dept 1978], affirmed, 47 NY2d 963 [1979]). As explained by the Appellate
Division in Ryan, whose opinion was adopted by the Court of Appeals:
With the constitutional framework in mind, section 3-204 of the
Election Law establishes that in the event that a party fails to make
a timely recommendation, or makes a recommendation which is
declared invalid after the party's time to do so has expired, the
Legislature continues to be vested with not only the right but the
duty to appoint an election commissioner (68 AD2d at 938).
Section 3-204[4] states in relevant part:

 Page 9

Matter of Babcock v Giblin

If a party fails to file a certificate within the time prescribed by this
section, the members of the legislative body who are members of
such party may appoint any eligible person to such office.
The foregoing provision forms the basis for the December 28 Certification. Since
the November 30 Certificate is invalid (since the Legislature, through its counsel, deemed it
invalid and no one has disputed that determination), it was of no force and effect and
therefore, no certificate was properly and timely failed. Therefore, the right and duty to make
the appointment devolved upon the members of the County Legislature who are members of
the Republican party.
The Court notes that the Republican members of the County Legislature have
selected Giblin, the same person who was recommended by the Executive Committee of the
County Republican Party, which recommendation was treated as invalid by the County
Legislature.
CONCLUSION
The Court has considered:
the Order to Show Cause, dated December 28, 2016;
the Petition, dated December 27, 2016;
the affidavit of Louis C. Babcock, sworn to December 28, 2016;
the exhibits annexed to said Petition and affidavit;
the affidavits of service submitted by Petitioner;
the December 9,2016 letter from Elana L. Yeger, Esq. to Respondent
Lawrence Garvey, with attachment; and
7) Election Commissioner Certification dated December 28, 2016.
Upon consideration of the foregoing papers and upon the oral arguments of
counsel, and for the reasons stated, it is hereby

 Matter of Babcock v Giblin

Page 10

ORDERED that the Petition of Petitioner Louis C. Babcock shall be, and hereby
is, dismissed, without costs; and it is further
ORDERED that the Election Commissioner Certification dated December 28,
2016 shall be, and is hereby, declared to be valid and effective; and it is further
ORDERED that the stay heretofore granted of the filing of the said Election
1 Commissioner Certification dated December 28, 2016 shall be, and is hereby, vacated
forthwith.
The foregoing constitutes the Decision and Order of this Court.
Dated: White Plains, New York
January 3, 2017

ENTER:

Scheinkman
Justice of the Supreme Court
APPEARANCES:
Law Office of Lawrence A Weissmann
By: Lawrence A. Weissman, Esq.
Attorneys for Petitioner
2 Crosfield Avenue, Suite 210
West Nyack, NY 10994
Lino Sciarretta, Esq.
Attorney for Respondent Rockland County Republican Committee
10 Maple Avenue
New City, NY 10956
Office of the Rockland County Attorney
By: Larraine S. Feden, Esq.
Venita Whidbee-Jordan, Esq.
Attorney for the Rockland County Respondents
11 New Hempstead Road
New City, NY 10956

 Matter of Babcock v Giblin
LAWRENCE GARVEY, ESQ.
Respondent Pro se
50 Main Street -- Suite 390
White Plains, New York 10606-1930

Page 11