The opinion
Pineda v Reyes
2025 NY Slip Op 31507(U)
April 28, 2025
Supreme Court, New York County
Docket Number: Index No. 154818//2025
Judge: Jeffrey H. Pearlman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 154818/2025
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/28/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JEFFREY H. PEARLMAN PART 44M
Justice
-------X INDEX NO. 154818/2025
ALEXANDER LORENZO REYES PINEDA, TOMAS
RAMOS, MOTION DATE 04/14/2025
Petitioner, MOTION SEQ. NO. 001
- V-
NICHOLAS A. REYES, BOARD OF ELECTIONS IN THE DECISION + ORDER ON
CITY OF NEW YORK, MOTION
Respondent.
--------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 5, 6, 7, 8, 9, 1O,
11, 12, 17, 18, 19
were read on this motion to/for ELECTION LAW- INVALIDATE PETITION
In this Election Law proceeding, Petitioner-objector Alexander Lorenzo Reyes Pineda and
Petitioner-Objector Tomas Ramos (collectively, Petitioner-Objectors) move by Order to Show
Cause for an order finding the Designating Petition of the Respondent-candidate Nicholas A.
Reyes (Respondent-Candidate) as candidate of the Democratic party for the public office of
Member of the New York City Council from the 8th Council District in the Primary Election to
be held on June 24, 2025 to be invalid and declaring the designating petition filed with
Respondent Board of elections purporting to designate Respondent-candidate as candidate for
the above public office on the official ballots to be used at the Primary Election to be held on
June 24, 2025 to be a legal nullity. Petitioner-objector additionally seeks an order directing
Respondent Board of Elections to not place and/or print the name of Respondent-candidate as
candidate for the above public office in the Primary Election to be held on June 24, 2025, and
reversing any contrary determination of Respondent Board of Elections that have been made or
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Motion No. 001
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INDEX NO. 154818/2025
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/28/2025
may hereinafter be made (Motion Seq. 001). This memorandum decision is limited to addressing
Petitioner-objector's claim that "signatures have been forged and/or other fraud has been
committed" (Verified Petition, i)l 5(q); 4/25/25 Oral Argument) as well as the renewed request
advanced by Counsel for Petitioner-Objectors for this Court to issue two so-ordered subpoenas
for Respondent-Candidate Nicholas A. Reyes and Althea Scott (4/25/25 Oral Argument; 4/25/25
Affirmation of Aaron Foldenauer, NYSCEF Doc. No. 17; Subpoenas, NYSCEF Doc. No. 18,
19).
CPLR § 3016(b) requires that fraud be plead with specificity, and this requirement applies to all
Election Law Proceedings (Thomas v Eugene, 41 Misc3d 418 [Supreme Court, Kings Co. 2013];
Matter of Robinson v Edwards (54 AD3d 682 [2d Dept 2008]). While an "unassailable proof of
fraud" is not required, there needs to be sufficient facts to apprise the candidate of the allegations
being made against the designating petition (Matter of Robinson (54 AD3d 682). This is
precisely why the 2025 Election Law Part Rules for New York County contains a requirement
for a party alleging fraud to present a complete written offer of proof, "including a statement as
to the number of witnesses expected to be called, the identification of each such witness (by
name, address, volume, page and line) and the status of each such witness ( e.g., candidate,
signatory, subscribing witness, notary public, etc.)." (2025 New York County Election Law Part
Rules, https://www.nycourts.gov/legacypdfs/courts/1jd/supctmanh/PDF/NYCounty-Election-
PartRules2025.pdt).
Petitioner-Objectors did not present a complete written offer of proof as required by the 2025
New York County Election Law Part Rules. They argue that the written Objections and
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Motion No. 001
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INDEX NO. 154818/2025
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/28/2025
Specifications of Objections to the Respondent-Candidate's Designating Petition filed with the
Respondent Board of Elections on April 7, 2025 and April 14, 2025 pursuant to Election Law §
6-154, which are to be incorporated with the Verified Petition and considered in support of the
request for relief (Verified Petition ,i,i 6, 7), is sufficient proof of their alleged claims of fraud.
The Objections and Specifications of Objections to the Respondent-Candidate's Designating
Petition claimed filed with the Respondent Board of Elections by Petitioner-Objectors are not
annexed to the Petition or the Order to Show Cause and were not presented to the Court at Oral
Argument (NYSCEF Doc. Nos. 1, 3, 5).
Respondent-Candidate correctly argues that Petitioner-Objectors have no right to file a Bill of
Particulars or any additional objections of proofs, and are now limited to their Petition and the
schedule for objections at the Board of Elections (Answer, NYSCEF Doc. No. 13); 4/25/25 Oral
Argument; Election Law § 6-154(2)), as the right to add additional objections after
commencement of a proceeding brought pursuant to Election Law § 16-102 is granted solely to
aggrieved candidates (Matter of Lancaster v Nicolas, 153 AD3d 829 [2d Dept 2017]). Moreover,
this Court specified in its Election Law Part Rules that a Bill of Particulars was only available for
use by an aggrieved candidate (2025 New York County Election Law Part Rules; CPLR §402).
The reason for this limitation is because the non-candidate objector, as part of these proceedings,
already had the opportunity to file both general and specific objections with the Board of
Elections and should not be given additional time to plead their claim of fraud.
As Petitioner-Objectors claim of fraud is pled insufficiently, the claim of fraud alleged in the
Petition must be, and is, dismissed (Matter of Waugh v Nowicki, 10 AD3d 437 [2d Dept 2004];
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Motion No. 001
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Green v Mahr, 231 AD2d 480 [2d Dept 1996]; Ford v D' Apice, 133 AD2d 191 [2d Dept 1987],
Bradley v D'Apice, 91 AD2d 691 [2d Dept 1982]).
With respect to the renewed request for subpoenas, after careful consideration, the Court declines
to so-order the subpoena for the Respondent-Candidate because the claim advanced, i.e. that the
Respondent-Candidate "engaged in fraud which, [Petitioner-Objectors submit] permeates and
invalidates the Petition" (4/25/25 Affirmation of Aaron Foldenauer p. 1, NYSCEF Doc. No. 17)
because the claim as advanced is one of fraud which was not properly pled.
The request for a so-ordered subpoena ad testificandum Althea Scott, which seems to relate to a
specific line-by-line challenge, is granted and said subpoena will be contemporaneously
uploaded with this Decision and Order.
Accordingly, it is
ORDERED that the portion of Petitioner-Objectors Order To Show Cause seeking to invalidate
the Designating Petition of the Respondent-candidate Nicholas A. Reyes as candidate of the
Democratic party for the public office of Member of the New York City Council from the 8th
Council District in the Primary Election to be held on June 24, 2025 and declare said designating
petition a legal nullity based on the claim that "signatures have been forged and/or other fraud
has been committed" (Verified Petition, if 15(q); is denied and the claim dismissed for failure to
plead fraud with particularity pursuant to CPLR 3016(b); and it is further
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Motion No. 001
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NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/28/2025
ORDERED that the request advanced by Petitioner-Objectors for this Court to issue so-ordered
subpoenas ad testificandum is granted solely as to Althea Scott and denied as to Respondent-
Candidate Nicholas A. Reyes; and it is further
ORDERED that Counsel for the parties are directed to appear in the Election Law Part (IAS Part
44), New York State Supreme Court, Room 321, 60 Centre Street New York, New York, 10007
at 9:30 a.m. on Tuesday April 29, 2025 to provide updates to the Court as to status of all
outstanding Board of Elections Rulings and for assignment, as necessary, to a Special Referee
for resolution of any outstanding issues.
This constitutes the Decision and Order of the Court.
·-Y H. PEARLMAN
EARLMAN, J.S.C. =- J.S.C.
~
CHECK ONE: CASE DISPOSED
GRANTED □ DENIED □ OTHER
APPLICATION : SETTLE ORDER
CHECK IF APPROPRIATE : INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 001
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