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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
- - - - - - - - - - - - - - - - - - - - - - X
NATHAN BUBEL,
Index No.
Plaintiff,
249/2019
against,
PHILIP GIGANTE,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - X
February 28, 2019
Rockland County Courthouse
1 South Main Street
New City, New York 10956

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B E F O R E:

HON. SHERRI L. EISENPRESS
Acting Supreme Court Judge

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A P P E A R A N C E S:

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DANIEL S. SZALKIEWICZ, ESQ.
Attorney for Petitioner
325 W. 38th Street, Suite 810
New York, New York 10018

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LAWRENCE A. GARVEY & ASSOCIATES, PC
Attorneys for Respondent
Westchester Financial Center
50 Main Street, Suite 390
White Plains, New York 10606

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BY:
BY:

LAWRENCE A. GARVEY, ESQ.
BRITTANY C. PATANE, ESQ.

THOMAS HUMBACH, ESQ.
ROCKLAND COUNTY ATTORNEY
11 New Hempstead Road
New City, New York 10956

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BY:

ALEXANDRA S. OBREMSKI, ESQ.

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REPORTED BY:

AMBER MALKIE FINER, R.P.R.
Senior Court Reporter

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Bubel v Gigante
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THE CLERK:
calendar:

This is Number One on the motion

Bubel versus Gigante.

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Appearances started with plaintiff, please.

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MR. SZALKIEWICZ:

Daniel Szalkiewicz - Daniel

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Szalkiewicz & Associates, PC, 325 West 38th Street,

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New York, New York 10018, for the petitioners in

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this matter.

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Good morning, Your Honor.
MR. GARVEY:

Good morning, Your Honor.

Lawrence Garvey, Lawrence A. Garvey &

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Associates, 50 Main Street, White Plains, New York,

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for respondent candidates.

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And, Your Honor, Brittany Patane in my office

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is also here today, but she's downstairs filing a

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motion.

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THE COURT:

Oh.

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MR. GARVEY:

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MS. OBREMSKI:

Thank you.
Alexandra Obremski, on behalf

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of the Rockland County Department of Law,

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representing the Rockland County Board of

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Elections.

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THE COURT:

Okay.

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MR. SZALKIEWICZ:

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or do you want us --

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THE COURT:

Good morning.
You need for us to step up

You can stay there.

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Bubel v Gigante
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So, we left with the Board of Elections
pursuing a review of the specific objections.

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So, what happened?

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MS. OBREMSKI:

My understanding is that the

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review was more or less completed as to the

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specific objections.

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I don't know if the additional -- the
additional objections were not.
MS. ZEBROWSKI STAVISKY:

They were not.

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MS. GIBLIN:

They were not by me.

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THE COURT:

1 2

MS. GIBLIN:

No, the additional ones.

1 3

MR. GARVEY:

The issue is, Your Honor, that

They were not by you?

1 4

the objections that were listed in the petition and

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the Order to Show Cause were apparently gone

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through.

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But then the Bill of Particulars, which listed

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a whole new set of objections - some of which were

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duplications - have not been gone through.

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THE COURT:

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MR. SZALKIEWICZ:

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I think that the Board should be testifying.

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Okay.
Well, if I may?

I think the court actually -THE COURT:
We're just --

No one is testifying right now.

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Bubel v Gigante
MR. SZALKIEWICZ:

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I think -- I think that,

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based on what I've seen from our FOIL request, it

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appears that the Republican commissioner did begin

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the process of going through it and did not

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complete it; is that correct?

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MS. GIBLIN:

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MR. SZALKIEWICZ:

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were ignored.
THE COURT:

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land.

That's correct.

They were worked on.
I just want to get the lay of the

Okay.

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MR. SZALKIEWICZ:

1 2

THE COURT:

1 3

MR. SZALKIEWICZ:

1 4

THE COURT:

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So, it's not as though they

It's --

I'm not -Assuming -- assuming --

What happened -- what happened

with the review of the initial objections?

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MS. ZEBROWSKI STAVISKY:

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THE COURT:

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MS. ZEBROWSKI STAVISKY:

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Okay.

MS. OBREMSKI:

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THE COURT:

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And what was the result?
We didn't add

anything.

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2 2

That was completed.

They have not been tabulated.

Okay.

So, do we think we should

tabulate them so that we can see -- I mean -MR. SZALKIEWICZ:

Your Honor, based on the --

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my -- my tabulation of both of them put together,

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the best case scenario is 155 signatures would be

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Bubel v Gigante
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knocked off line-by-line, which would be -- which

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would mean that the petition -- the respondent

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would still remain on the ballot, assuming that we

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upheld each line-by-line objection.

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MR. GARVEY:

Without agreeing that those

objections or facts are valid.
THE COURT:

Well, that's what we were trying

to get to, whether that's the case or not.
MR. SZALKIEWICZ:

It's not dispositive the

line-by-line, Your Honor.
THE COURT:

What do you mean it's not

dispositive?
MR. SZALKIEWICZ:

It means that going

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line-by-line would not resolve this case.

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to reach the fraud argument.

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THE COURT:

We have

Putting aside the fraud argument

for a minute.

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MR. SZALKIEWICZ:

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THE COURT:

Yes.

Based on the review by the Board

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of Elections of -- now, are you talking about the

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initial objections or both?

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MR. SZALKIEWICZ:

I'll give you the numbers,

Your Honor, I have.

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THE COURT:

Just answer my question.

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MR. SZALKIEWICZ:

Yes.

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Bubel v Gigante
THE COURT:

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Based on the initial objections or

both?

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MR. SZALKIEWICZ:

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MR. GARVEY:

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been finalized.

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THE COURT:

Both.

Obviously, the second set hasn't

I understand you're not

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agreeing -- I understand you're not agreeing that

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those are timely.

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invalidate the petition, then --

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But if -- if combined they don't

MR. SZALKIEWICZ:

Combined they're 158.

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Assuming the splits go in the petitioner's favor,

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because there were splits, there are 158 objections

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that would be deemed valid.

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THE COURT:

Okay.

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petition still valid?

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MR. SZALKIEWICZ:

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THE COURT:

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Okay.

And that would leave the

Yes, Your Honor.
So, all you have left

then -- and you guys agreed to be bound by --

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MR. GARVEY:

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THE COURT:

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MR. GARVEY:

No, we did not, Judge.
I thought you did.
No, we agreed to allow them to be

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reviewed and see what they come up with for the

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very purpose of seeing if we're going to move

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forward with this.

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MR. SZALKIEWICZ:

I don't believe that's

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Bubel v Gigante
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what --

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MR. GARVEY:

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THE COURT:

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why are you arguing?

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tell you in law school, right, Mr. Garvey?

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you're winning stop talking.

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Oh, no.
Okay.

You agree -- he's saying -You win.

MR. SZALKIEWICZ:

You know what they
When

We agree that the ones that

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they both deemed to be invalid would be out.

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we would have the ability to re-appeal certain

And

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signatures that, truthfully, even if we were to

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re-appeal those signatures we still need to reach a

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fraud argument.

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THE COURT:

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You're mumbling.

It's hard to

understand what you're saying.

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MR. SZALKIEWICZ:

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THE COURT:

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MR. SZALKIEWICZ:

I apologize, Judge.

No problem.
It's my understanding that

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if both commissioners agreed that a signature was

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not good or that the person was not deemed

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registered for the purposes of this proceeding,

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that signature would be out.

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We would then have the ability, if we deemed

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necessary, to try to rehabilitate certain of the

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signatures coming here.

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Again, that all being said, we would still

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Bubel v Gigante
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need to have testimony as to the fraud argument.
THE COURT:

Right.

fraud for a second.

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MR. SZALKIEWICZ:

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THE COURT:

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Again, let's put aside the

Sorry.

We don't need to deal with the

signatures any longer?

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MR. GARVEY:

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THE COURT:

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MR. GARVEY:

No.
Do we agree?
No, we don't agree.

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MR. SZALKIEWICZ:

I believe --

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THE COURT:

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MR. GARVEY:

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So, by virtue of the fact that -- that the

Go ahead, Mr. Garvey.
We don't agree.

All right.

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petitioners brought this -- this petition in court,

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rather than go through the normal process, which

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I'll argue about my -- my motion to dismiss, of

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objections and specific objections, they gave the

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court, and the court only, all right, the right

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to -- to -- to determine whether or not that

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signature is valid.

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court's job.

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All right.

That it's the

What we agreed to on Monday was to let them go

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back, do their canvas and see if it's going to be

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dispositive.

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All right.

THE COURT:

But it is.

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Bubel v Gigante
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MR. GARVEY:

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THE COURT:

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MR. GARVEY:

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going to go:

No.
What I'm hearing is it is.
No, because here's where we're

If I agree --

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THE COURT:

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MR. GARVEY:

I'm missing something here.
If I agree to 158 signatures and

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we go through, all right, the fraud process, all

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right, and they're able to knock out another 150 or

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160, all right, then I'm off the ballot.

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is off the ballot.

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allow the Board of Elections to make the

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determination.

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THE COURT:

My client

So, like, I can't at this point

It's got to be the court.
Okay.

So my understanding when we

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left here, I thought that you guys were going -- if

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both commissioners agreed, you were going to go

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with it and you were going -- if there was a

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dispute, that's what we were going to address.

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You're saying that's not --

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MR. GARVEY:

I'm saying that -- that --

that -THE COURT:
objections.

You're preserving all your

Okay.

MR. GARVEY:

What you -- what the court said

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Monday was how come the Board of Elections has not

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reviewed these.

All right.

Why don't we start

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Bubel v Gigante
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there, which was a good idea.

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apparently has been done, at least some part of it

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has been done.

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All right.

And that

And now we're back.

But we're now going to fight over each and

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every one of the additional signatures.

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without the court reviewing these signatures, and

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without hearing arguments about what does and what

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does not match, and when it matters and when it

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doesn't matter, my clients can't -- can't concede.

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THE COURT:

Okay.

So,

He raises a good point.

If -- if -MR. SZALKIEWICZ:

I understand that, Your

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Honor.

It obviously was not what my understanding

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of Monday's agreement was.

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saying he thought something otherwise, I'm not

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going to argue with him on his thoughts.

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THE COURT:

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MR. SZALKIEWICZ:

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Okay.

But if Mr. Garvey is

So, we're going to proceed.
So, we have several

witnesses outside, Your Honor.
MR. GARVEY:
like to bring up.

I have a motion to dismiss I'd
It's being filed downstairs now.

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Can I approach?

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THE COURT:

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(Whereupon, there was a pause in the

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proceeding.)

Sure.

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Bubel v Gigante
THE COURT:

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Okay.

I've just been handed a

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motion to dismiss for lack of subject matter

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jurisdiction, lack of standing, failure to state a

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cause of action, failure to plead with

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particularity.
MR. GARVEY:

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Your Honor, I think in light of

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the fact that -- that the petitioners aren't even

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here -THE COURT:

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Yeah, that's a bit of a problem.

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MS. PATANE:

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Brittany Patane, with Lawrence Garvey &

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Associates, on behalf of respondents.
THE COURT:

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Good morning, Your Honor.

Can you find out when the folks

are supposed to get here with the petition?

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Counsel?

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Mr. Szalkiewicz?

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MR. SZALKIEWICZ:

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them.

I have no -- so, I can call

I have no relation with these people.
THE COURT:

Does anyone know, are they coming?

The village people.
MR. SZALKIEWICZ:

They were all sitting in the

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commissioner's office the other day.

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number.

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hold of them?

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She has her

Do you have the number to be able to get a

MS. ZEBROWSKI STAVISKYTWO:

I know who the

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Bubel v Gigante
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clerk is.

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I can call.

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I don't remember her number personally.

MR. GARVEY:

Your Honor, they're not here, so

I move to dismiss.
THE COURT:

Well, obviously, if they don't

have the petitions, they can't proceed.
MR. GARVEY:

I'm making a formal motion, Your

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Honor, to dismiss the petition, because they cannot

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move forward without the petitions, without the

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original petitions.
MR. SZALKIEWICZ:

Your Honor, I would

actually -THE COURT:

All right.

It's 10:40.

I'm not

going to dismiss -MR. SZALKIEWICZ:

Judge, respectfully, I will

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accept his and I want to file a cross-petition -- a

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cross-motion for adverse inference against

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Mr. Garvey's clients given the fact Mr. Gigante is

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the respondent, the village is the respondent.

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Mr. Gigante has control over the village clerk as

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the mayor.

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If he wants to play that game, Judge, it's not
a problem.
THE COURT:

Go outside and call these people

and see where they are.

Let's not play games.

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Okay.

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on their way or what's going on.

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Let's get a phone call.

Find out if they're

(Whereupon, there is a break in the proceeding
while the court continued on with its calendar.)

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THE COURT:

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We're back on the record in the matter of

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Bubel versus Gigante and Board of Elections in

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Airmont.

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Appearances remain the same.
I've been handed, by Mr. Garvey, a motion to
dismiss that was, I guess, filed this morning.

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MR. GARVEY:

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THE COURT:

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We'll go back on the record.

Filed this morning, Judge.
Mr. Szalkiewicz, am I saying your

name right?

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MR. SZALKIEWICZ:

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THE COURT:

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Close enough, Judge.

Do you want to address this?

I

know you were just handed it, but you -MR. SZALKIEWICZ:

Sure, Judge.

I had about

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five minutes to review this, so obviously I'd like

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to reserve the right to put in supplemental papers,

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if needed.

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I know in anticipation of their motion this

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morning, I handed it to Mr. Garvey prior to him

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coming in.

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court regarding two of the issues, I believe, that

We did prepare a letter memo for the

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Bubel v Gigante
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are contained within here.

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and the other one is the Bill of Particulars being

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untimely filed.

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One is a fraud argument

That being said, it's my understanding that

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petitioners -- respondents are asserting that the

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petitioners in this case are not an aggrieved

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candidate.

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That is simply not the case.

THE COURT:

So, there's two -- two significant

threshold issues raised, right?

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jurisdiction and standing.

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those.

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MR. SZALKIEWICZ:

Subject matter of

So, let's address

From a standing standpoint,

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an aggrieved candidate under Election Law 16-102

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has the right to come in.

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What respondents are alleging is that my

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clients are not an aggrieved candidate because they

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are not members of the same party.

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That is not the case under the Election Law

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that we're running.

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citing cite to 6-102 that relate to a designating

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petition.

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petition.

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All of the cases that they're

This is an independent nominating

So within a designating petition, where you

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were a Republican party, obviously a Democrat

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cannot come in and start to mess up the election a

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little bit.

Here, this is an independent

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nominating petition where you have these

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essentially made up parties.
So, an aggrieved candidate under an

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independent nominating petition is anybody that is

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able to and is running for the same position, which

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in this case are my clients.

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for mayor, which is what Mr. Gigante is running

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for.

Mr. Bubel is running

And Mr. Downey is running for trustee, which

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is what the remaining two respondents are running

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for.

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So, as of --

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THE COURT:

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MR. SZALKIEWICZ:

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So, their case law just does not apply to

Who are the other two respondents?
Valvo and Marchesani.

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these situations because they only relate to

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designating petitions.

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independent nominee petition.

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MS. PATANE:

Your Honor, if I may heard on

that point?

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THE COURT:

2 2

MS. PATANE:

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Once again, this is an

Yes, go ahead.
With respect to an aggrieved

candidate, there has to be an injury.

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All the case law that we cited, while some of

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them may have had designated petitions, it doesn't

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Bubel v Gigante
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necessarily not apply to nominating petitions.
The law is very clear that in order to be an

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aggrieved candidate, you have to be associated with

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the same political affiliation.

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not a part of same political body.

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THE COURT:

These parties are

So, give me some factual

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background here, because I don't know anything

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about this election.

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of what party?

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MS. PATANE:

So, who's -- who's a member

What are the parties?
Your Honor, the respondents are

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members of the Preserve Airmont independent

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political body.

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THE COURT:

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MS. PATANE:

Preserve -The petitioners are members of

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the Protect Airmont independent political body.

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These are two different political bodies.

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absolutely no argument that the petitioners can

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make that they're part of the same exact party.

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There's

In addition to that, in order to be an

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aggrieved candidate, there has to be an injury.

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There has to be an issue with the formalities and

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the operations of that independent party.

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This is not even an alleged in the petition,

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nor is it even considered, considering they're not

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part of that same political body.

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Bubel v Gigante
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THE COURT:
again.

So, what do you mean?

Say that

I don't understand.

MS. PATANE:

In order to be an aggrieved

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candidate, there has to be an issue with the

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formalities of that same political body.

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So, for example, if the respondents are part

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of the Preserve Airmont, if there were other

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candidates or other members of Preserve Airmont

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that had issues with respondents and with regard to

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the formalities or the operations of Preserve

1 1

Airmont, then they had the right as aggrieved

1 2

candidates to bring this action.

1 3

The petitioners are part of Protect Airmont.

1 4

It's a completely different independent body.

1 5

have absolutely no injury.

1 6

formalities or -- or the operation of that body,

1 7

because they're not members of it.

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MR. SZALKIEWICZ:

THE COURT:

2 1

MR. SZALKIEWICZ:

2 3

And there's no issue of

See, Judge, here's the

problem with these independent nominee petitions --

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2 2

They

Mmm.
-- these are all legal

fictions.
I believe Mr. Gigante is a registered

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Republican.

There's no way for anybody to go and

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actually register for the Preserve Ramapo Party, to

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Bubel v Gigante
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register for whatever the other parties are here.

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So, the allegations saying that they have an issue

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with the way the process is working, what -- this

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is governed by a completely separate section of the

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Election Law.

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What Ms. Patane --

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THE COURT:

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And what section would that be,

counsel?
MR. SZALKIEWICZ:

It is Section 5, I believe

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relates to the villages, Your Honor.

1 1

the Election Law, I believe, relates to village

1 2

elections.

1 3

MS. PATANE:

1 4

MR. SZALKIEWICZ:

1 5

Article 5 of

Your Honor, if I may?
What we're dealing with

here --

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THE COURT:

I'll give you a chance.

1 7

MR. SZALKIEWICZ:

What we're dealing with --

1 8

what she's arguing, and actually for the most part

1 9

I don't disagree with what she's saying, but I

2 0

believe she's misinterpreting what an aggrieved

2 1

candidate is.

2 2

As the court knows any time someone is running

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for an election and they believe that something has

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been done wrong for what they're running for on the

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same line, they are an aggrieved candidate and they

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Bubel v Gigante
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have the ability to come in and file a petition to

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invalidate or to validate.

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THE COURT:

I guess her argument is -- let's

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use Democrats and Republicans just.

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can't challenge the -- the designating petition of

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a Republican, right?

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MR. SZALKIEWICZ:

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THE COURT:

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1 0

A Democrat

And vice versa?
Correct.

And the reason for that is

obvious, so no one can muck up -MR. SZALKIEWICZ:

Those are parties under the

1 1

Election Law, Your Honor.

Here, there is no member

1 2

that's registered in the Preserve Airmont Party.

1 3

The Preserve Airmont Party is not actually a party,

1 4

Your Honor.

1 5

the Election Law for this independent nominating

1 6

petition.

1 7

each of the petitions, Judge, there's actually --

It is a slate that is created under

So, if you were to look at the top of

1 8

THE COURT:

Which I don't have, but, okay.

1 9

MR. SZALKIEWICZ:

Under -- it talks about

2 0

elections under 15-108.

There are certain things

2 1

that you have to put in there, where they actually

2 2

selected a name of what this -- this slate is going

2 3

to be.

2 4

except for the three candidates over here, to be a

2 5

member of the Preserve Airmont Party, because it's

It is physically impossible for anybody,

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Bubel v Gigante
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not actually a party.

2

selected.

3

a completely different set of rules.

4

It's just a name that they

They selected their own logo.

It's just

So, this whole standing argument is, quite

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honestly, absurd.

Who else -- I can create 50

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different petitions under the preserve whatever

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party.

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one that could then take myself to court.

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no membership enrollment.

I'm the only member.

I would be the only
There is

There is no enrollment

1 0

process.

1 1

there.

1 2

lack of a better term, real parties:

1 3

Republicans.

1 4

framework that the respondents are talking about

1 5

comes into play.

1 6

MS. PATANE:

1 7

If what counsel is saying is that essentially

1 8

anyone can just create any political body and file

1 9

petitions, that would be completely against the law

2 0

and allow anyone to create -- any party, create any

2 1

petition and file it at any time.

2 2

It is literally a name that's put in
All these people are enrolled in -- in, for
Democrats,

So, that's where this sort of

Your Honor, I have two points.

What he should have done or what his client

2 3

should have done was file the specific objections

2 4

with the Board of Elections like every other party

2 5

does, unless there is some other exception.

But no

 21

Bubel v Gigante
1

exception here applies.

2

The other point, counsel mentioned that Mr --

3

THE COURT:

4

here, because I'm not familiar with these local --

5

MS. PATANE:

6

THE COURT:

7

MS. PATANE:

8

THE COURT:

9

1 0

1 1

MS. PATANE:

1 3

THE COURT:

1 6

1 7

-- with these village elections.
Sure.
So, the initial batch of

Elections?

with the court.

1 5

Sure.

objections were ultimately filed with the Board of

1 2

1 4

But he did -- just bear with me

No, Your Honor.

None of them were.

They were filed

They were all

filed with the village?
MR. SZALKIEWICZ:

Everything is -- no, they

were filed -MS. PATANE:

They were filed by petitioner

1 8

with the court.

1 9

Board of Elections or the clerk before the filing

2 0

of this action?

2 1

THE COURT:

2 2

MS. PATANE:

2 3

2 4

2 5

They were not filed through the

Okay.
And then, Your Honor, I just want

to make one other point.
Counsel mentioned that he believes that
Mr. Gigante is registered to the Republican party.

 22

Bubel v Gigante
1

I believe that the other petitioners may be

2

registered to different parties.

3

to the aggrieved candidate argument.

4

MR. SZALKIEWICZ:

5

MS. PATANE:

Again, that goes

It doesn't.

It's --

I mean, he's insinuating that

6

he's -- that Mr. Gigante is, in fact, a member of

7

another political party --

8

THE COURT:

9

MS. PATANE:

I don't know why that's relevant.
-- and the petitioners are

1 0

members of other political parties.

1 1

claim that they're aggrieved candidates?

1 2

furthers the argument.
MR. SZALKIEWICZ:

1 3

How can they
It just

Judge, this is -- obviously

1 4

we're going down the rabbit hole over here.

1 5

is just total misinterpreting what the Election Law

1 6

is.

1 7

1 8

1 9

THE COURT:

This

Well, I'm going to take a look at

this specific provision.
MR. SZALKIEWICZ:

An aggrieved -- there are

2 0

two ways to file -- three ways under 16-102 to

2 1

file -- to file --

2 2

THE COURT:

2 3

MR. SZALKIEWICZ:

2 4

2 5

Six or 16?
16-102, to file an

invalidating proceeding.
The first one is if you previously filed

 23

Bubel v Gigante
1

objections with the Board of Elections, I then have

2

the right to come in -- I then have the right to

3

come in and contest what the board ruled on there.

4

MS. PATANE:

5

MR. SZALKIEWICZ:

6

The second way is if I'm the chairman of a

7

party.

8

about here.

9

Which the petitioners did not do.
Which we did not do.

Again, there is no party we're talking
This is a completely different beast.

And the third, if I am an aggrieved candidate,

1 0

an aggrieved candidate relating to an independent

1 1

nominating petition.

1 2

I'm not disagreeing with counsel that in a

1 3

normal designated petition where you have

1 4

Republicans and Democrats.

1 5

nominating petition, an aggrieved candidate is an

1 6

individual entitled to run in the election and

1 7

that's filed petitions in this case.

1 8

In an independent

In this case, the law -- I don't really want

1 9

to keep going back and forth on these arguments,

2 0

because the law is clear.

2 1

candidate.

2 2

2 3

He's an aggrieved

We have the standing.

MS. PATANE:

Your Honor, the law isn't clear

and in fact --

2 4

THE COURT:

Okay.

2 5

MR. SZALKIEWICZ:

I understand that.
Of course, it's clear --

 24

Bubel v Gigante
1

THE COURT:

First of all, Malkie cannot take

2

down when both of you talk at the same time.

3

one at a time.

4

Second, I understand the dispute and I'm going

5

to take a look at that.

6

next issue.

So, let's move on to the

7

What's the jurisdictional issue?

8

MS. PATANE:

9

So,

Your Honor, the issue of subject

matter jurisdiction also relates to standing in

1 0

that the petitioners failed to initially file their

1 1

specific objections with the Board of Elections or

1 2

the clerk prior to filing the petition with the

1 3

court, in that the court doesn't have jurisdiction

1 4

to hear this matter as the objections needed to be

1 5

filed timely with the Board of Elections and the

1 6

clerk prior to this filing.

1 7

MR. SZALKIEWICZ:

Judge, if they're an

1 8

aggrieved candidate, they don't need to file

1 9

objections first.

2 0

2 1

THE COURT:

They can go right into court.
And where is that section?

Where

is that?

2 2

MR. SZALKIEWICZ:

2 3

it's based on 16-102.

2 4

THE COURT:

2 5

MR. SZALKIEWICZ:

It's beyond case law and

Okay.
I can -- as an aggrieved

 25

Bubel v Gigante
1

candidate you always have the right to have De Novo

2

review of this court.

3

THE COURT:

4

MR. SZALKIEWICZ:

I mean, it's just --

De Novo review of what?
I'm sorry.

You always have

5

the ability to bring it to court and bring your

6

objections here.

You don't need to have --

7

THE COURT:

8

MR. SZALKIEWICZ:

9

THE COURT:

1 0

1 1

1 2

1 3

1 4

1 5

1 6

In the first instance?
In the first instance.

You're saying there's no --

there's no condition preceding coming to court?
MR. SZALKIEWICZ:

Absolutely, if you're an

aggrieved candidate.
MS. PATANE:

Your Honor, if you're an

aggrieved candidate.

And again I would just --

MR. SZALKIEWICZ:

So, if she loses the first

argument, she loses the second.

1 7

THE COURT:

1 8

MS. PATANE:

Got you.

Okay.

Your Honor, in this analysis I

1 9

would ask that the court find or provide a

2 0

definition of what an aggrieved candidate is,

2 1

because the petitioner still has failed to prove

2 2

what an aggrieved candidate is and how it relates

2 3

to this action.

2 4

THE COURT:

2 5

All right.

Board want to be heard?

Does counsel for the

 26

Bubel v Gigante
1

MS. OBREMSKI:

2

THE COURT:

3

MS. OBREMSKI:

4

THE COURT:

5

MS. OBREMSKI:

With respect to?

Anything.
Anything?

Yes.
My understanding, Your Honor,

6

is that 16-102 provides standing to an aggrieved

7

candidate to anybody who is able to file

8

objections.

9

And if you look at Election Law 6-154 --

1 0

THE COURT:

Which section?

1 1

MS. OBREMSKI:

6-154.

It's the -- what kind

1 2

of -- who has the standing to file objections.

1 3

court might find that elucidating.

1 4

THE COURT:

1 5

(Whereupon, there was a break in the

1 6

All right.

The

Take ten minutes.

proceeding.)

1 7

THE COURT:

We're back on the record.

1 8

MR. SZALKIEWICZ:

In the case of Lifshitz(ph)

1 9

v Palmateer, P-A-L-M-A-T-E-E-R, it is a Third

2 0

Department case, but there's multiple cases after.

2 1

THE COURT:

Yeah, I have it here.

2 2

MR. SZALKIEWICZ:

Okay.

Respondent contends

2 3

that since petitioner is not a member of the

2 4

political party.

2 5

THE COURT:

Yes, this is the Democrat allowed

 27

Bubel v Gigante
1

2

to challenge the nomination of another party.
MR. SZALKIEWICZ:

Exactly.

Because an

3

aggrieved candidate is a candidate for an office

4

has standing to challenge if they're running for

5

the same office.

6

THE COURT:

So, let me tell you, I just read

7

way more election law cases than I ever wanted to.

8

But apparently when the challenge -- the

9

courts upheld that when the challenge is to the

1 0

procedure of the party, the opposing party, the

1 1

non-party member cannot -- even if they're an

1 2

opposing candidate, they cannot challenge the

1 3

petition.

1 4

However, where the challenge is to the content

1 5

of the petition that goes directly to whether or

1 6

not it satisfies the substantive provisions of the

1 7

Election Law, the courts have allowed aggrieved

1 8

candidates to be defined as opposing candidates of

1 9

a different party to challenge a nominating

2 0

petition, to bring an invalidation.

2 1

2 2

2 3

So, in particular I'll give you some case
cites here:
In the mater of Martin v Tootengion(ph), which

2 4

is a Third Department case, 89 AD 2nd 1034, they

2 5

permitted a member of the Republican party to

 28

Bubel v Gigante
1

challenge the petition of a member of a Liberal

2

party.

3

Is there a Liberal party?

In Maguire versus Gemash, which is a Second

4

Defendant case, 22 AD 3rd 614, the nominated

5

candidate of the Republican party and Conservative

6

party had standing as aggrieved candidate to bring

7

proceeding seeking to invalidate petition

8

nominating candidate of Senior Citizen's party for

9

the same position.

1 0

And that case cites a number of other cases:

1 1

Maher versus Board of Elections, matter of

1 2

Lifshitz(ph) v Palmateer, which we just talked

1 3

about and the other cases that I mentioned.

1 4

In Maher, they permitted a member of the

1 5

Democratic party to challenge -- I'm sorry.

1 6

permitted a member of the Liberal party to

1 7

challenge a candidate who was running on the

1 8

Democratic party line and defined that person as an

1 9

aggrieved candidate.

2 0

They

The matter of Stempel versus Albany County.

2 1

Matter of Widler(ph) versus Christenfeld, which is

2 2

a New York Court of Appeals case.

2 3

cases have discussions about that issue.

2 4

ultimately it seems that the distinction, as I

2 5

said, is made between what the challenge is based

All of those
And

 29

Bubel v Gigante
1

2

on.
MS. PATANE:

I don't have all those cases in

3

front of me, but I believe that the specific

4

objections were made to the Board of Elections

5

prior to their commencement of the proceedings.

6

That's not the case here.

7

commenced this proceeding by filing this action

8

before --

9

THE COURT:

The petitioners

But 16-102 says that an aggrieved

1 0

candidate can do that.

1 1

or not the definition of aggrieved candidate

1 2

applies here.

1 3

go to the Board of Elections.

1 4

apply, they are entitled under 16-102 to skip the

1 5

submissions to the Board of Election.

1 6

So, it all turns on whether

And if it doesn't, then they have to

MR. GARVEY:

But if it does

I think the fact that -- that

1 7

they were denied at the Board of Election makes

1 8

them aggrieved.

1 9

makes them aggrieved.

2 0

through that process in order to come to court.

2 1

That's -- that's -- that's what
So -- so, they have to go

So -- so, the aggrieved candidate has to have

2 2

been -- under those definitions, has to have been

2 3

denied whatever relief they were seeking at the

2 4

Board of Elections in -- when they are challenging

2 5

petitions.

 30

Bubel v Gigante
1

That's my understanding of it, Judge.

2

MR. SZALKIEWICZ:

Judge, the absurdity of Mr.

3

Garvey's argument though is that, as you just said,

4

the candidate has the ability to come directly to

5

court without filing specific objections at the

6

Board of Election level.

7

In fact, case law says they can disregard all

8

the formalities of the Board of Election process

9

and come directly here.

It's impossible for them

1 0

to be an aggrieved candidate then based on what the

1 1

Board of Election does if they're not even required

1 2

to go before the Board of Elections.

1 3

1 4

1 5

1 6

The law is clear, Your Honor, that an
aggrieved candidate is someone -THE COURT:

Well, either way, at this point

they've been -- they came to court.

1 7

You agree they were in court timely?

1 8

MR. GARVEY:

1 9

THE COURT:

2 0

MR. GARVEY:

2 1

THE COURT:

2 2

So, they were in court timely.

I do.
Okay.

At least on the first --

Correct.
-- batch, right?
And -- and as

2 3

an aggrieved candidate under the 16-102, they don't

2 4

have to go to the Board of Elections.

2 5

They went to the Board of Elections anyway,

 31

Bubel v Gigante
1

which they sort of did after the fact, right?

2

now they've been denied by the Board of Elections?

3

4

5

MR. GARVEY:

And

Well, there have been no

determinations, Judge, so -THE COURT:

I mean, they still -- I think --

6

look, under these cases as I read them and under

7

the statutes as I read them, they qualify as

8

aggrieved candidates and the matter can proceed.

9

1 0

MR. SZALKIEWICZ:
THE COURT:

Thank you, Your Honor.

I will entertain -- since you

1 1

didn't have time to submit opposition and you

1 2

didn't have time obviously to reply, I'll

1 3

entertain -- we'll proceed, but I'll entertain

1 4

further submissions.

1 5

have a different point of view once I read the

1 6

additional material you want to submit, we can

1 7

obviously deal with that then.

1 8

1 9

MS. PATANE:

And if it turns out that I

Your Honor, if I we may move on

then to the fraud arguments?

2 0

THE COURT:

2 1

MS. PATANE:

Yes.

Go ahead.

So, the respondents allege that

2 2

the motion to dismiss, aside from the threshold

2 3

matters, must also be dismissed as a result of a

2 4

failure to state a claim and failure to plead with

2 5

particularity.

 32

Bubel v Gigante
1

The fraud allegations that were made in the

2

petition submitted by the petitioners failed to

3

plead the actual allegations of fraud with

4

particularity.

5

There is extensive case law in all of these

6

Election Law cases that say every single petition

7

has to plead fraud with particularity.

8

9

1 0

The petitioners don't even allege fraud.
they state is that there was fraudulent
allegations.

1 1

Even if it's --

1 2

THE COURT:

1 3

MS. PATANE:

1 4

All

behaviors.

Fraudulent?
That there's fraudulent

I apologize, Your Honor.

1 5

THE COURT:

1 6

MS. PATANE:

Okay.
Even if the petitioners rely on

1 7

the exhibit that they attached, which was bold

1 8

assertion objections, in that exhibit there's no

1 9

allegation of fraud.

2 0

particularity.

2 1

There's no pleading with

For fraud there's material elements.

2 2

knowledge of fraud.

2 3

There's misrepresentations.

2 4

reliance.

2 5

There's

There is intention to deceive.
There's justifiable

And there's injury.

In not one allegation in the petition do any

 33

Bubel v Gigante
1

of the petitioners mention any of these fraudulent

2

allegations.

3

There's no way to even move forward with this

4

action because they failed to plead with

5

particularity.

6

7

8

9

1 0

MR. SZALKIEWICZ:
reading -THE COURT:

Point to me in your petition to

where you claim you've alleged with particularity
the requisite elements of fraud?

1 1

MR. SZALKIEWICZ:

1 2

THE COURT:

1 3

MS. PATANE:

1 4

Your Honor, I would like him to

specify the contents, not just Paragraph 15.
MR. SZALKIEWICZ:

1 6

THE COURT:

1 7

MR. SZALKIEWICZ:

1 9

2 0

Paragraph 15, Paragraph 12.

Hang on.

1 5

1 8

Again, without honestly

Paragraph 12.

Paragraph 12.
It purports that fraudulent

activity -THE COURT:

Hold on.

You've got to slow down

and give me a chance to read it.

2 1

Paragraph what else, 15?

2 2

MR. SZALKIEWICZ:

2 3

You want to go through them line-by-line

2 4

2 5

objections, Your Honor?
THE COURT:

What?

12, 13, 14, 15, 16, 18.

F stands for forgery.

 34

Bubel v Gigante
1

2

3

MR. SZALKIEWICZ:

If you want to go through

Exhibit A -- Exhibit 1, which is incorporated?
THE COURT:

Are there any other paragraphs?

4

Are those the sum total of the paragraphs in the

5

petition?

6

MR. SZALKIEWICZ:

There's a general -- there

7

is a general allegation of fraud as well, Your

8

Honor, contained on Page 10.

9

THE COURT:

Where is that?

1 0

MR. SZALKIEWICZ:

1 1

THE COURT:

1 2

MR. SZALKIEWICZ:

On Page 10?

1 3

Paragraph 10, Judge.

1 4

THE COURT:

1 5

1 7

THE COURT:

1 8

MR. SZALKIEWICZ:

M.

No, I don't think that -That being said, Your

Honor --

2 0

THE COURT:

2 1

contains any --

2 3

Not Page 10.

a fraud allegation?
MR. SZALKIEWICZ:

2 2

I'm sorry.

Which provision of Paragraph 10 is

1 6

1 9

We can go with M.

I don't think Paragraph 10

MR. SZALKIEWICZ:

That being said, Your Honor,

we do stand by --

2 4

THE COURT:

-- the other provisions.

2 5

MR. SZALKIEWICZ:

And --

 35

Bubel v Gigante
1

THE COURT:

So, why don't -- I mean, it's

2

almost -- forget about Paragraph 10, but on the

3

other ones that he cited, why aren't those

4

sufficient?

5

MS. PATANE:

Your Honor, every single

6

paragraph that he cited just merely states there

7

was fraudulent activity.

8

material elements of fraud.

9

THE COURT:

It does not establish the

Well, it says with -- it says --

1 0

this is Paragraph 12:

1 1

respondent candidate Phillip Gigante - I don't know

1 2

if I'm saying his name right.

1 3

as an attesting witness, allowed someone other than

1 4

the registered voter to sign for another without

1 5

the voter's permission or consent in violation of

1 6

the law, etc., etc.

1 7

Upon inform and belief,

I apologize - acting

Then it says the same thing about respondent

1 8

candidate Mr. Valvo allowing someone else to sign.

1 9

Paragraph 14 and Paragraph 15, with knowledge

2 0

collected fraudulent signatures.

2 1

against Mr. Valvo.

2 2

2 3

Same allegations

So, there's a -- there's an alleged fraudulent
act, knowledge.

2 4

MS. PATANE:

2 5

THE COURT:

Your Honor -Yeah.

 36

Bubel v Gigante
1

MS. PATANE:

-- if I may?

2

The paragraphs state upon information and

3

belief.

4

can't make allegations upon information and belief.

5

In order to plead with particularity you

Aside from that, each allegation of fraud, in

6

order to make a prima facie case and plead with

7

particularity under the CPLR, has to have that

8

there's a material representation that was false.

9

Each of these paragraphs do not say there's a

1 0

material representation that was false.

1 1

has to have the representations were false and made

1 2

with intent to deceive the petitioners.

1 3

There also

There's no allegation of that in any of the --

1 4

in any of the paragraphs in the petition that the

1 5

plaintiff justifiably relied on these

1 6

representations.

1 7

petitioners justifiably relied on any of these.

No allegation that the

1 8

MR. SZALKIEWICZ:

1 9

MS. PATANE:

2 0

THE COURT:

2 1

MR. SZALKIEWICZ:

That's --

And no injury.
Go ahead.
The fraudulent activities

2 2

need to be defined within here.

I understand that

2 3

they are citing the Common Law cases.

2 4

been upheld time and time again.

2 5

the court with multiple cases earlier this morning

This has

And I provided

 37

Bubel v Gigante
1

regarding what is required for a permeation of

2

fraud.

3

MS. PATANE:

Your Honor.

4

MR. SZALKIEWICZ:

There is general allegations

5

of fraudulent activity contained within the

6

petition.

7

detailing the different fraudulent activity of what

8

we are alleging.

9

Department in 2015, twice in 2013.

We then annexed an eight-page sheet

It's been held by the Second

1 0

THE COURT:

What case?

1 1

MR. SZALKIEWICZ:

S-G-A-M-M-A-T-O v

1 2

Perillo(ph).

Fraud was alleged where the specific

1 3

objections were annexed.

1 4

In Haygo(ph) --

1 5

THE COURT:

1 6

MR. SZALKIEWICZ:

1 7

1 8

1 9

Hold on.
And what's contained in the

letter, Your Honor, are direct quotes in the cases.
THE COURT:

Are Gigante and Valvo the actual

candidates?

2 0

MR. SZALKIEWICZ:

2 1

MR. GARVEY:

2 2

MR. SZALKIEWICZ:

Yes.

Yes.
And, Your Honor, if you look

2 3

at Mr. Valvo's petition, which is on Page 24, 25

2 4

and 26 --

2 5

THE COURT:

Hang on.

 38

Bubel v Gigante
1

MR. SZALKIEWICZ:

2

THE COURT:

3

4

Sorry.

So, counsel, did you take a look

at this, Sgammato?
MS. PATANE:

I don't have the case in front of

5

me, Your Honor, but I do have other significant

6

case law that clearly counters this position.

7

MR. SZALKIEWICZ:

8

THE COURT:

9

MR. SZALKIEWICZ:

1 0

1 1

1 2

1 3

Caracappa.

Your Honor, if I may just --

Yeah.
Oberle, O-B-E-R-L-E, v

It's a Second Department case.

MS. PATANE:

Your Honor, the one thing I would

like to note is that -MR. SZALKIEWICZ:

And going -- and going into

1 4

the details as well, Your Honor, as we said.

1 5

Specifically discussing Valvo's petition, it

1 6

clearly states in this specific objections that

1 7

were incorporated by reference, for an example,

1 8

lines 26/Signature 4, 26/Signature 5 and

1 9

26/Signature 7 were forgeries.

2 0

submit a fraudulent petition.

2 1

THE COURT:

It's fraud to

So, I'm just going read to you,

2 2

counsel, from Oberle, which is a Second Department

2 3

case, 133 AD 2nd 202.

2 4

Do you have it?

2 5

MS. PATANE:

Yes.

 39

Bubel v Gigante
1

MR. SZALKIEWICZ:

2

MS. PATANE:

3

I have --

Well, I don't have the full case.

I just have the paragraph.

4

THE COURT:

You want to --

5

MR. GARVEY:

6

THE COURT:

7

The court, the trial court dismissed the

8

proceeding based on the arguments you just raised.

9

And the Appellate Division reversed and held that

I have it.
You have it.

Okay.

1 0

although it was true that the 25 grounds listed in

1 1

the pleadings were asserted in general terms, the

1 2

specifications were incorporated by reference.

1 3

Thus, the trial court erred in dismissing those

1 4

claims for lack of specificity since the pleadings

1 5

and specifications combined together possessed the

1 6

required specificity.

1 7

some trial issues.

And then it goes on about

And that holding is basically mirrored in

1 8

1 9

another Second Department case from 2015, the

2 0

Sgammato case.

2 1

it, I'll give it to you.

2 2

copy?

2 3

2 4

2 5

Which if you want to take a look at

MR. SZALKIEWICZ:

Or do you have an extra

I have an extra copy for

counsel.
THE COURT:

So, it's on the second page of

 40

Bubel v Gigante
1

that decision which affirmed the trial court

2

denying the motion to dismiss.
It says initially the candidates contend that

3

4

the petition to invalidate should have been

5

dismissed since the allegations made in connection

6

with the claim of fraud were not sufficiently

7

specific to apprize them of the allegations of

8

fraud.

9

merit.

The candidate's contention is without

1 0

Here, the petition to invalidate allege, inter

1 1

alia, that 147 signatures on the sheet were invalid

1 2

because the subscribing witness did not witness all

1 3

of the signatures on each of the pages and that the

1 4

entire petition was permeated by fraud, including

1 5

candidate fraud.
Moreover, the petition to invalid incorporated

1 6

1 7

by reference specific objections filed by the

1 8

objectors with the board prior to the commencement

1 9

of these proceedings.
Thus, the candidate received adequate notice

2 0

2 1

of the allegations supporting the claim that the

2 2

subscribing witness had falsely signed the witness

2 3

statement on the contested sheet, citing back to,

2 4

you know, again to Hardwick, and then Oberle and

2 5

etc.

 41

Bubel v Gigante
1

MS. PATANE:

2

THE COURT:

3

MS. PATANE:

Your Honor, if I may?
Yes.
The issue I have with these cases

4

is that we don't have the petition in front of us

5

to see what was actually pled.

6

allegation in the petition --

7

8

9

THE COURT:

There's not even an

Well, you have the objections

though?
MS. PATANE:

Yes, but there's no -- there's no

1 0

allegation in -- in the objections on who the

1 1

individual was that committed the fraud or what the

1 2

fraud was.

1 3

THE COURT:

But in the petition itself it

1 4

says -- it accuses -- anyway, it alleges that Mr.

1 5

Gigante and Mr. Valvo committed that fraud, unless

1 6

I'll misreading something.

1 7

Is that accurate?

1 8

MS. PATANE:

1 9

MR. SZALKIEWICZ:

2 0

MS. PATANE:

No.

Well, it's -It's accurate, Your Honor.

It's indicating that, but it's --

2 1

it's referencing the attesting witness.

So, how

2 2

could they possibly plead with particularity that

2 3

the respondents had knowledge of any fraudulent --

2 4

any fraudulent behavior on petitions that the --

2 5

that the respondents weren't even signing on.

 42

Bubel v Gigante
1

If there's subscribing witnesses and signers

2

are on a petition and the respondents' names are

3

not on that petition --

4

THE COURT:

But it says -- Paragraph 12

5

specifically says that Mr. Gigante was the

6

attesting witness.

7

8

9

1 0

1 1

MR. SZALKIEWICZ:

That's correct.

So was

Valvo.
THE COURT:

And the same -- and the same

allegation is made against Mr. Valvo.
MS. PATANE:

Your Honor, but every -- every

1 2

single allegation that they have references other

1 3

subscribing witnesses and signers.

1 4

1 5

1 6

THE COURT:

What do you mean every allegation?

I'm reading from -MS. PATANE:

Every allegation that they have

1 7

and what they reference in their exhibits is

1 8

referencing other subscribing witnesses and

1 9

signers, not the candidates themselves.

2 0

2 1

THE COURT:

Look at Paragraph 12 of the

petition.

2 2

MS. PATANE:

2 3

THE COURT:

I am, Your Honor, but -Okay.

It says -- it says Philip

2 4

Gigante, acting as an attesting witness, allowed

2 5

someone other than a registered voter to sign for

 43

Bubel v Gigante
1

another without the voter's permission or

2

consent --

3

MS. PATANE:

4

THE COURT:

Who was it --- and the sworn -- the responding

5

candidate's sworn statement at the bottom of the

6

page.

7

I don't know -MS. PATANE:

Your Honor, who was that someone?

8

You have to plead with particularity.

The

9

petitioners did not plead with particularity.

All

1 0

they're -- all they are saying is that the

1 1

respondents had knowledge of fraud, but there's --

1 2

THE COURT:

1 3

MS. PATANE:

1 4

1 5

I'm assuming -- yeah.
-- no explanation of the

knowledge of fraud.
THE COURT:

Based on the prior holdings in

1 6

this department, I'm going to deny the motion to

1 7

dismiss on that basis.

1 8

1 9

2 0

2 1

2 2

2 3

MR. SZALKIEWICZ:

Your Honor, prior to the

lunch break, can I call the first witness?
THE COURT:

You want to take that first

witness?
MR. GARVEY:

Your Honor, we have one more

threshold matter --

2 4

THE COURT:

2 5

MR. GARVEY:

Sure.
-- before we call the witness,

 44

Bubel v Gigante
1

that is the matter of the village clerk of Airmont.

2

THE COURT:

3

MR. GARVEY:

4

I'm sorry.

What?

The village clerk.

The clerk,

all right, who --

5

THE COURT:

6

Hi.

7

MR. GARVEY:

Who is that?

Who is that person?

It's our position that the

8

village clerk was not properly served and,

9

therefore, they -THE COURT:

1 0

1 1

1 2

Okay.

How was service effectuated

on -MR. GARVEY:

Service was effectuated by

1 3

personal service, allegedly, which is according to

1 4

the Affidavit of Service, but it was also served by

1 5

overnight mail.

1 6

The overnight mail envelope has -- the address

1 7

was incorrect.

1 8

incorrect address defeats service.

1 9

There's very clear case law that an

I'd like to, for the limited purposes of

2 0

determining if service was proper, call the village

2 1

clerk up and voir dire her concerning the service

2 2

that purportedly was made upon her person.

2 3

THE COURT:

2 4

MR. SZALKIEWICZ:

2 5

Come on up.
Judge, can we call our

witness, our first witness?

 45

Bubel v Gigante
1

2

THE COURT:

Well, this is a threshold issue.

If there's no service, I don't have jurisdiction.

3

MR. SZALKIEWICZ:

4

to hear the matter anyway.

5

THE COURT:

6

anyway, that's true.

I do need to hear the matter

7

MR. SZALKIEWICZ:

8

THE COURT:

9

quick.

But again, the court needs

So that's why I'd like to --

Let's -- let's take this real

Go ahead.

1 0

1 1

1 2

LISA-ANN DiMARSICO-SMITH, having been first duly
sworn, was examined and testified as follows:

1 3

1 4

THE COURT:

1 5

THE WITNESS:

1 6

1 7

State your name.
Lisa-Ann DiMarsico-Smith.

D-I-M-A-R-S-I-C-O hyphen S-M-I-T-H.
MR. SZALKIEWICZ:

Your Honor, also just as a

1 8

threshold matter, obviously, I object to this at

1 9

this point in the proceeding.

2 0

been raised on Monday and it wasn't raised.

2 1

MR. GARVEY:

2 2

THE COURT:

2 3

MR. GARVEY:

2 4

2 5

This should have

She wasn't here.
Duly noted.
She wasn't here, so she made no

appearance.
DIRECT EXAMINATION BY MR. GARVEY:

 46

Direct - DiMarsico-Smith - Garvey
1

Q.

Good morning, Ms. Smith.

2

A.

Good morning.

3

Q.

You realize that we're here on an Election Law

4

case, correct?

5

A.

Yeah.

6

Q.

And you realize that you're here in your capacity

7

as a village clerk in the village of Airmont?
MR. SZALKIEWICZ:

8

9

A.

Objection, Your Honor.

Yes.

1 0

THE COURT:

1 1

Everybody slow down and speak loudly and

I'll allow it.

clearly, please.

1 2

1 3

It's background.

Q.

Ms. Smith, can you please state -THE COURT:

1 4

And don't speak over each over.

1 5

Q.

Ms. Smith, could you please state your name for

1 6

the record.

1 7

A.

My name is Lisa-Ann DiMarsico-Smith.

1 8

Q.

Could you also state your current occupation?

1 9

A.

I am the village clerk/treasurer for the village

2 0

of Airmont.

2 1

Q.

2 2

received a package in the mail concerning the case

2 3

that we're here on today?

2 4

A.

Yes, I did.

2 5

Q.

And can you tell me when you received that

Ms. Smith, did there come a time that you

 47

Cross - DiMarsico-Smith - Szalkiewicz
1

package?

2

A.

3

approximately 9:45 in the morning.

4

Q.

February 22nd?

5

A.

Correct.

6

Q.

And do you have that package with you today?

7

A.

Yes, I do.

8

Q.

Can you describe what that package -- strike

9

that.

That was received on February 22nd, around

Is that a US Postal Service package?

1 0

1 1

A.

Yes, it is.

1 2

Q.

Is there an address on the front of it?

1 3

A.

There is.

1 4

Q.

And is that address correct?

1 5

A.

No, it is not.

1 6

Q.

Can you tell me why it's not correct?

1 7

A.

The zip code is incorrect.

1 8

Q.

Did there come a time where the papers concerning

1 9

this suit, if you knew

-- or strike that.

Did there come a time where a process server

2 0

2 1

approached you while you were at your place of

2 2

employment?

2 3

A.

Yes.

2 4

Q.

Can you tell me when that happened?

2 5

A.

That happened on Tuesday, February 19th, in the

 48

Cross - DiMarsico-Smith - Szalkiewicz
1

Board of Trustees meeting.

2

asked if I would accept on behalf of Anthony Valvo.

3

Q.

And did you reply?

4

A.

Yes, I did.

5

Q.

What was your reply?

6

A.

Yes.

7

Q.

And did the process server say anything else to

8

you?

9

A.

1 0

He approached me and

Then he handed me an additional copy and said

this is a courtesy copy for you.

1 1

MR. GARVEY:

1 2

THE COURT:

No further questions, Your Honor.
Okay.

Go ahead.

1 3

1 4

CROSS-EXAMINATION BY MR. SZALKIEWICZ:

1 5

1 6

Q.

Do you -- is there some procedure that logs in

1 7

mail that's received by the village of Airmont?

1 8

A.

Yes, there is.

1 9

Q.

And can I please have the procedure?

2 0

A.

We open it and there's a time date stamp.

2 1

Q.

Were you personally hand delivered a copy of the

2 2

Order to Show Cause on February 19th, 2019?

2 3

A.

For Anthony Valvo, yeah.

2 4

Q.

Were you also hand-delivered a second copy of it?

2 5

A.

As a courtesy.

 49

Cross - DiMarsico-Smith - Szalkiewicz
1

Q.

That's not my question.

2

A.

Yes.

3

Q.

My question is, were you hand delivered a second

4

copy of it?

5

A.

Yes.

6

Q.

Are you related to any of the members of this

7

proceeding?

8

A.

No.

9

Q.

Are you related to any witnesses that signed

1 0

petitions on behalf of any of the respondents in this

1 1

case?

1 2

A.

Witnesses?

1 3

Q.

Witnesses, subscribing witnesses.

1 4

A.

Yes.

1 5

Q.

Which ones?

1 6

A.

My mother.

1 7

Q.

What's your mother's name?

1 8

A.

Rosamond Lancia.

1 9

Q.

Who else?

2 0

A.

And Robert Lancia.

2 1

THE COURT:

2 2

THE WITNESS:

2 3

THE COURT:

Is that your father?
My brother.
Your brother.

2 4

Q.

What did you do when you received the copy of the

2 5

paperwork on February 19th, 2019?

 50

Cross - DiMarsico-Smith - Szalkiewicz
1

A.

The mailed copied?

2

Q.

No, the hand-delivered copy.

3

A.

I put one in Anthony Valvo's box and put one and

4

we proceeded with our meeting.

5

Q.

Where did you put the second one?

6

A.

I have it with me.

7

Q.

What do you mean?

8

A.

It was placed in my -- with my papers during the

9

meeting.

1 0

Q.

What about the next day, what did you do with it?

1 1

A.

It's right here.
THE COURT:

1 2

It was stamped in.

Did you time -- did you date and

1 3

stamp the copy that -- the courtesy copy, the

1 4

second copy that was handed to you?

1 5

THE WITNESS:

1 6

THE COURT:

1 7

THE WITNESS:
business hours.

1 8

No.
Was it stamped?
No, because it wasn't during
It was at a meeting.

1 9

The one that was delivered in the mail, yes.

2 0

THE COURT:

Okay.

And did you subsequently

stamp it or date it or anything?

2 1

2 2

THE WITNESS:

2 3

THE COURT:

No.
Okay.

2 4

Q.

Is the -- at the meeting that you were served at,

2 5

is that a town meeting?

 51

Cross - DiMarsico-Smith - Szalkiewicz
1

A.

Yes, it is.

2

Q.

Village or town?

3

A.

Village.

4

Q.

And is it called by the trustees of the village?

5

A.

Yes.

6

Q.

And is it -- are you mandated to be there as part

7

of your employment as a trustee/treasurer?

8

A.

Yeah.

9

Q.

So, you were there in your official capacity as

I apologize.

1 0

the treasurer or trustee?

1 1

A.

As the village clerk.

1 2

Q.

As clerk?

1 3

A.

Yes.

1 4

Q.

And were you sitting in the audience or were you

1 5

sitting up at the table with the other members of the

1 6

village?

1 7

A.

Yes, I was sitting up at the table.

1 8

Q.

Can I see a copy of that package that you

1 9

received?

2 0

2 1

2 2

2 3

2 4

2 5

MR. GARVEY:

I have no objection, even though

it's not in evidence, You Honor.
MR. SZALKIEWICZ:

Well, she introduced it into

evidence.
THE COURT:

Well, it's not in evidence, but he

can take a look at it.

 52

Cross - DiMarsico-Smith - Szalkiewicz
(Whereupon, there was a pause in the

1

2

proceeding while Mr. Szalkiewicz reviewed the

3

document.)
MR. SZALKIEWICZ:

4

Your Honor, I'd like to mark

this into evidence as Exhibit 1.

5

6

THE COURT:

Any objection?

7

MR. GARVEY:

8

THE COURT:

9

evidence on consent.

No objection.
Okay.

Petitioner's Exhibit 1 in

1 0

MR. GARVEY:

The whole envelope?

1 1

MR. SZALKIEWICZ:

1 2

You don't contest that the contents of the
envelope are actually --

1 3

1 4

MR. GARVEY:

1 5

MR. SZALKIEWICZ:

1 6

THE COURT:

I do not.
So, the envelope.

So, stipulated that the envelope

contains --

1 7

MR. SZALKIEWICZ:

1 8

I apologize.

1 9

2 0

The envelope.

Q.

May I approach, Your Honor?

It's just easier if I look at this.

Do you see the markings on the bottom --

2 1

COURT REPORTER:

2 2

THE COURT:

Wait.

2 3

thought we marked it?

2 4

MR. SZALKIEWICZ:

2 5

THE COURT:

Am I marking it?
Hang on a second.

Mark it.

I

Sorry about that.

She's got to mark it, so we'll

 53

Cross - DiMarsico-Smith - Szalkiewicz
mark it.

1

(Whereupon, a priority mail envelope was

2

marked Petitioner's Exhibit 1 in evidence.)

3

4

Q.

So, could you just look at the address, please,

5

that's written over there.

6

address, what does it say?
(Whereupon, the witness looked at the

7

exhibit.)

8

9

The first line of the

A.

Airmont Village Hall, Village Clerk, 251 Cherry

1 0

Lane.

1 1

Q.

1 2

and village clerk?

1 3

A.

That is the physical address, yes.

1 4

Q.

Okay.

1 5

to take a picture of it so it's easier, so we don't

1 6

have to keep going back and forth.

Is that the correct address of the village hall

Can I see that one more time?

1 7

MR. GARVEY:

1 8

MR. SZALKIEWICZ:

I just want

I have no objection, Your Honor.
I just don't want to keep

1 9

handing her the envelope and back.

I've never seen

2 0

this before, Judge, until about five seconds ago.

2 1

Q.

Do you see on the right-hand side it says --

2 2

where it says -- there's red markings on the bottom

2 3

right-hand side?

2 4

A.

The red box?

2 5

Q.

Yes.

 54

Cross - DiMarsico-Smith - Szalkiewicz
1

A.

Yes.

2

Q.

Is there any date input into that red box?

3

A.

I see 2/20.

4

Q.

Okay.

5

A.

It's initialed.

6

Service.

7

Q.

Does the village of Airmont maintain a website?

8

A.

Yes, we do.

9

Q.

And is that the official website of the village

And do you know who inputted that there?
I'm assuming through the Postal

1 0

of Airmont?

1 1

A.

Yes, it is.

1 2

Q.

Do you know what address, the zip code the

1 3

village of the Airmont has on their -MR. GARVEY:

1 4

Objection, Your Honor.

Relevance.

1 5

1 6

MR. SZALKIEWICZ:

1 7

THE COURT:

1 8

Q.

1 9

website?

2 0

A.

Overruled.

What zip code the village of Airmont has on its

From the best of my knowledge it would be 10982.
MR. SZALKIEWICZ:

2 1

If she knows.

I'm at a little bit of a

2 2

disadvantage, Your Honor, because I haven't pulled

2 3

up on my computer --

2 4

Q.

Has the village of Airmont ever used the zip code

2 5

10952 for the 251 Cherry Lane?

 55

Bubel v Gigante
1

A.

I'm not sure.
THE COURT:

2

Do you know what zip code is on

the website?

3

MR. SZALKIEWICZ:

4

I do, Your Honor, but I

can't print out --

5

6

THE COURT:

No, I wasn't asking you.

7

MR. SZALKIEWICZ:

Sorry.

8

Q.

Do you know what --

9

A.

Off the top of my head, no, I don't.

1 0

1 1

THE COURT:

I'll allow you to ask subject to

connection.

1 2

MR. SZALKIEWICZ:

1 3

Your Honor, I have no further questions at

1 4

That's fine.

this time.

1 5

THE COURT:

1 6

MR. GARVEY:

1 7

(Whereupon, there is a pause in the

1 8

1 9

2 0

Anything else, Mr. Garvey?

Just one second, Judge.

proceeding.)
MR. GARVEY:

No further questions, Judge.

Thank you.

2 1

THE COURT:

2 2

MR. GARVEY:

2 3

Okay.

Thanks.
Judge, I'd like to give you some

case law on incorrect zip code, if I could?

2 4

THE COURT:

2 5

MR. GARVEY:

You want to just give me cites?
I'll give you cites.

 56

Bubel v Gigante
1

180 AD 2nd, complaint was dismissed for

2

improper service; therefore, no personal

3

jurisdiction.

4

THE COURT:

5

MR. GARVEY:

6

THE COURT:

7

MR. GARVEY:

8

THE COURT:

9

MR. GARVEY:

1 0

THE COURT:

1 1

MR. GARVEY:

Wait.

180 AD 2nd what?

AD 2nd 712.
712?
Correct.

AD 2nd 687, 688.

Same, 180?
Yes.

Thank you.

Yeah.
AD 2nd 425 -- I'm sorry.

258 AD

1 2

2nd 425, the first part of the case.

1 3

lacked personal jurisdiction when they failed to

1 4

establish the summons was mailed to the correct

1 5

address.

1 6

MR. SZALKIEWICZ:

The court

Your Honor, there's two

1 7

things that obviously we would need to be able to

1 8

present evidence to it.

1 9

One, according to the US -- case law states

2 0

that when mail is done by overnight mail, the

2 1

petitioners obviously have the ability to rebut

2 2

when it's actually received.

2 3

According to the United States Post Office

2 4

tracking information - which I'll provide the court

2 5

and respondent with - it was delivered at - using

 57

Bubel v Gigante
1

this tracking information - delivered on February

2

20th, 2019, at 10:11 a.m.

3

MR. GARVEY:

4

MR. SZALKIEWICZ:

5

That further, Your Honor --

6

MR. GARVEY:

7

THE COURT:

8

Subject to connection.

Objection, Your Honor.
It's hearsay, so I'm going to

sustain the objection, unless you're able to -MR. SZALKIEWICZ:

9

1 0

Objection, Your Honor.

We can have someone from the

Post Office come in, Your Honor.
I'll take it a step further, Your Honor.

1 1

We

1 2

could call further witnesses to testify or the

1 3

court could take judicial notice that the village

1 4

of Airmont, on their official website, uses the zip

1 5

code 10952.

1 6

MR. GARVEY:

1 7

MR. SZALKIEWICZ:

1 8

Objection, Your Honor.

Hearsay.

The court has the ability to

take notice -THE COURT:

1 9

So, why can't I take judi -- I can

2 0

take judicial notice of their website.

2 1

government -- it's a government official website

2 2

page.

2 3

2 4

2 5

It's a

Why can't I take judicial notice of that?
MR. GARVEY:

Well, you're not.

his word for it, number one.
THE COURT:

No --

You're taking

 58

Bubel v Gigante
1

MR. GARVEY:

2

THE COURT:

3

4

notice of it.

Number two --- he's asking me to take judicial

So, why can't I do that?

MR. GARVEY:

I still say that's hearsay, but I

5

say that it's -- it's not relevant.

6

actual address is of the -- of the village hall is

7

determined by United States Postal Service for

8

purposes of delivering mail.

9

that -- that the address on the document is

1 0

1 1

1 2

1 3

What the

We've had testimony

incorrect and, therefore, it's improper service.
THE COURT:

All right.

I'll take a look at

your cases.
MR. SZALKIEWICZ:

Your Honor, I'm sorry.

Like

1 4

I said as a threshold matter, the village of

1 5

Airmont, under an official government website,

1 6

holds itself out to have its official address as

1 7

10952.

1 8

petitioners to rely on what the village has on its

1 9

website.

2 0

Therefore, it is beyond reasonable for the

This also, Your Honor, is not -- and I have

2 1

not had a chance to brief this.

2 2

the fact that the clerk, in her official capacity,

2 3

at an official meeting, was hand delivered a copy

2 4

of the petition.

2 5

Even dealing with

It's my understanding as well, Your Honor,

 59

Bubel v Gigante
1

that the village of Airmont maintains a video of

2

these meetings.

3

that video, subject to authentication, because they

4

put it on YouTube, where you can see the respo --

5

the responding clerk being hand delivered a copy of

6

the order.

7

8

9

1 0

THE COURT:

And it's possible we can review

I don't think she was disputing

that she was handed it.
MR. SZALKIEWICZ:

statements were made that it's a courtesy copy.

1 1

MR. GARVEY:

1 2

MR. SZALKIEWICZ:

1 3

1 4

1 5

To the service of Anthony Valvo.

THE COURT:

Do you have an Affidavit of

Service?
MR. SZALKIEWICZ:

1 7

THE COURT:

1 9

With that being said, Your

Honor, we can have the process server --

1 6

1 8

But she's alleging that

We do, Your Honor.

And is it filled out by a process

server?
MR. SZALKIEWICZ:

It is filled out by a

2 0

process server.

2 1

THE COURT:

2 2

MR. SZALKIEWICZ:

2 3

Your Honor, I apologize.

Can I see it?
It's already been filed.
Is there any way we

2 4

can have permission to just extend past 12:30, so

2 5

we can call the witness?

 60

Bubel v Gigante
MR. GARVEY:

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I object to calling the witness

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until we're done, Judge.

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is trying to do, but I --

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MR. SZALKIEWICZ:

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MR. GARVEY:

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We have not established personal

MR. SZALKIEWICZ:

The matter needs to be heard

anyway pursuant to the rules of -THE COURT:

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It's going to be --

jurisdiction.

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I understand what counsel

It does.

It does need to be heard

regardless, Mr. Garvey, so...
But this Affidavit of Service --

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maybe you

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have to call the process server.

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I'll look at the cases.

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you want to bring in on the delivery in the actual

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mailing and the website, etc.

You figure out what it is

We're going to adjourn until 2:00 and we're

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I don't know.

going to go today only until 3:30.
MR. SZALKIEWICZ:

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we can -- I apologize.

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his parents.

Your Honor, is there any way
Is there any way just so

UNIDENTIFIED MEMBER OF THE AUDIENCE:

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91 and 86, Your Honor.

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them.

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THE COURT:

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MR. GARVEY:

They're

This is a hardship for

Eddie, can you call Bob and see -Your Honor, can we have a

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Bubel v Gigante
1

conference, attorneys?

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THE COURT:

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MR. GARVEY:

No, let's get this done first.
It's imperative.

I plead with

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the court to allow me to have a conference for

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three minutes.

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conference.

I think you'll appreciate the

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THE COURT:

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(Whereupon, Mr. Szalkiewicz, Mr. Garvey, Ms.

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Come on.

Patane and Ms. Obremski conferred with the judge in
chambers.)
THE COURT:

Okay.

We just had a conference,

an attorneys' conference.

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Mr. Garvey?

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MR. GARVEY:

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Upon very strict written instructions from my

Thank you, Your Honor.

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clients, all three of them - which represents

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Philip Gigante, Anthony Valvo, Paul Marchesani - we

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have consented, I believe, to the entry of a

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judgment in favor of the petitioners that

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respondents' signature requirements were not

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sufficient to allow them access to the ballot.

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THE COURT:

Counsel?

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MR. SZALKIEWICZ:

I appreciate that, Your

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Honor and, obviously, I have nothing further than

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that, for once in my life.

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Bubel v Gigante
1

THE COURT:

Okay.

So, we're not going to

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proceed any further with either the service issue

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or the fraud issue.

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against the respondents, other than a finding that

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the signature provisions were not sufficient to

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meet the statutory requirements.

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There will be no findings

MR. SZALKIEWICZ:

The clerk is hereby enjoined

from -THE COURT:

Yes, the Board of Elections and

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the village clerk are enjoined from placing the

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names of the respondents on the ballot for this

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village election, which is to take place.

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Thank you, everybody.

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oOo

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Bubel v Gigante
REPORTER'S CERTIFICATION

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I, AMBER MALKIE FINER, do hereby certify that

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the foregoing is a true and accurate transcript.

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__________________________________

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AMBER MALKIE FINER
Senior Court Reporter

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1 1

INDEX OF WITNESSES

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1 3

WITNESS

1 4

L DiMARSICO-SMITH

DIRECT
46

CROSS
48

1 5

1 6

1 7

1 8

EXHIBITS

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2 0

2 1

2 2

2 3

2 4

2 5

PETITIONER
1

EXHIBIT
Priority mail envelope

ID

EVD
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