The opinion
Davis v Clennon
2024 NY Slip Op 31561(U)
May 3, 2024
Supreme Court, New York County
Docket Number: Index No. 153378/2024
Judge: Richard G. Latin
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. 153378/2024
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. RICHARD G. LATIN PART 46M
Justice
---------------------------------------------------------------------------------X INDEX NO. 153378/2024
LONDEL DAVIS, JORDAN JG WRIGHT
MOTION DATE 04/25/2024
Plaintiff,
MOTION SEQ. NO. 001
-v-
JOSHUA A. CLENNON, THE BOARD OF ELECTIONS IN
DECISION + ORDER ON
THE CITY OF NEW YORK,
MOTION
Defendant.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 6, 7, 8
were read on this motion to/for ELECTION LAW - INVALIDATE PETITION .
As a preliminary matter, respondent’s validating petition under Index No. 153381/2024
was denied and dismissed on the record, on April 25, 2024, for failing to join a necessary party.
Upon the foregoing documents and after argument on April 25, 2024 and on May 3, 2024,
it is ordered that this petition to invalidate the designating petition of respondent Joshua A. Clennon
to be a candidate of the Democratic Party to for the office of Member of the Assembly is
determined as follows:
By oral decision on April 25, 2024, after hearing arguments on whether to invalidate the
petition, and by written decision dated April 26, 2024, the matter was set down for a line-by-line
analysis at the Board of Elections (“BOE”) and was referred to a Special Referee to hear and report
with recommendations. The matter was referred to Special Referee Phyllis Sambuco.
The Special Referee conducted a line-by-line review of the signatures challenged by the
petitioners on April 26, 2024, May 1, 2024, May 2, 2024, and May 3, 2024. The Special Referee
also took the testimony of subscribing witness Justinn Green on April 26, 2024. The Court was
present at the line-by-line review and issued rulings on all of the forgery objections.
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Motion No. 001
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NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/03/2024
As stated in her report, the Special Referee sustained 232 of petitioners’ objections to
signatures, leaving a total of 538 valid signatures. The total of valid signatures was above the 500
requisite signatures needed for the respondent candidate to remain on the ballot. Therefore, the
Special Referee recommended that the invalidating petition be denied.
Following the Special Referee’s report being read into the record, the parties were offered
the opportunity to argue whether the report should be confirmed or rejected. Both sides submitted
papers on the issue and were heard on an expedited basis due to the specific time constraints of
determining this election law matter.
On the record, petitioners sought to reject the Special Referee’s report and
recommendations with respect to the signatures not already invalidated. Specifically, petitioners
objected to the signatures witnessed by Justinn Green on the basis that the address given on his
petition sheets is inaccurate and differed from his April 26, 2024 testimony. Petitioners argued that
based on the wrong subscribing witness residence address issue, that respondent’s designating
petition fails to contain the 500 minimum number of required valid signatures and as a result should
be invalidated.
Respondent Clennon argued in support of confirming the Special Referee’s report that
witness Justinn Green can have more than one residence and could choose which residence to list
on his petition (see Matter of Markowitz v Gumbs, 122 AD2d 906 [2d Dept 1986]). Respondent
Clennon asserted that Green’s testimony demonstrated that he had two address where he resides,
his current address at 1330 Commerce Avenue, Bronx, New York and his voting address.
Election Law § 6-132 (2) requires that a subscribing witness list their current residence
address on a designating petition sheet, and that they reside in the state. This requirement “protects
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the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena
in a proceeding challenging the petition” (Matter of Pisani v Kane, 87 AD3d 650, 652 [2d Dept
2011]). If a subscribing witness improperly lists their address, the signatures on the sheets signed
by the subscribing witness must be invalidated because the incorrect address “could confuse,
hinder, or delay any attempt to ascertain or to determine the identity, status, and address of that
witness” (id; see also Matter of Holt v Ward, 43 AD3d 637, 637 [4th Dept 2007]).
The Special Referee relied on Clark v Dais in reaching her determination not to summarily
invalidate those signatures witnessed by Justinn Green (51 Misc3d 1201[A][Sup Ct, New York
County 2015]). However, Clark is distinguishable from the instant matter as it merely involved
the omission of the witness’ proper county. That court noted that address was otherwise correct,
and this omission would not prevent the determination of the witness’ residence. Therefore, this
error would not hinder or delay any effort to subpoena the witness in order to verify the signatures
on the petition.
Here, petitioners met their burden in demonstrating that Green did not list his current
residence on his designating petition sheet as required. In his testimony from April 26, 2024, Green
testified under oath that he lives at 1330 Commerce Avenue, Bronx, New York. This was also the
address listed on his driver’s license. On Green’s petition sheets he stated that his address was
2255 Bronxwood Avenue, Bronx, New York. Green testified that this is the address on his voter
registration. Outside of that, Green did not testify to any other connection to that address.
Therefore, he did not establish any “legitimate, significant, and continuing attachment” to the 2255
Bronxwood Ave. address, or any intention to ever return to it (Holt v Ward, 43 AD3d 637, 638
[4th Dept 2007] quoting Matter of Ferguson v McNab, 60 NY2d 598, 600 [1983]; Pisani, 87 AD3d
650; cf McManus v Relin, 286 AD2d 855, 856 [4th Dept 2001]). As a result, respondent Clennon
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failed to establish that Green resided at the address listed on his petition sheets. Moreover, Special
Referee Sambuco did not determine on the record that the address Green listed on his petition was
correct in the first instance. Accordingly, the 108 sheets totally 825 signatures witnessed by Justinn
Green are invalid.
Therefore, the Court rejects the Special Referee’s report with respect to the signature’s
witnessed by Justinn Green and the recommendation to deny the invalidating petition. The Court
adopts the report in all other respects as it pertains to the Special Referee’s line-by-line review.
Clennon’s designating petition initially contained 1,441 signatures. Of those, 825 were
subscribed by Justinn Green and an additional 282 were invalidated by the BOE. Thereafter, an
additional 1241 were invalidated by Special Referee Sambuco during the line-by-line review. As
a result, respondent only has 210 valid signatures, falling well below the 500 signatures required
to be on the ballot.
Accordingly, it is ORDERED and ADJUDGED that the petition to invalidate the
designating petition of Joshua A. Clennon for the Public Office of Member of the Assembly from
the 70th Assembly District, New York State is granted; and it is further
ORDERED that respondent Board of Elections shall not print and/or place the name of the
respondent Joshua A. Clennon as a candidate for the public office of member of the Assembly
from the 70th Assembly District, New York State on any official ballots to be used for the
Democratic Primary Election to be held in June 2024; and it is further
ORDERED that respondent Board of Elections is enjoined and restrained from printing,
issuing, or distributing for use any official ballots used for the Democratic Primary Election to be
1
Of the 232 signatures that Referee Sambuco found invalid, 108 were witnessed by Justinn Green, leaving 124
signatures invalidated on the basis of other objections.
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Motion No. 001
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NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 05/03/2024
held in June 2024 which name respondent Joshua A. Clennon as a candidate for the public office
of Member of the Assembly from the 70th Assembly District, New York State.
This constitutes the decision and judgment of the Court.
5/3/2024 $SIG$
DATE RICHARD G. LATIN, J.S.C.
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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Motion No. 001
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