Pineda v. Colon

2025 NY Slip Op 31506(U)

• Court: New York Supreme Court, New York County
• Decided: April 28, 2025
• Docket: Index No. 154816/2025
• Status: Unpublished

Opinion

Pineda v Colon 2025 NY Slip Op 31506(U) April 28, 2025 Supreme Court, New York County Docket Number: Index No. 154816/2025 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. 154816/2025 NYSCEF DOC. NO. 12 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. 154816/2025 ALEXANDER LORENZO REYES PINEDA, TOMAS RAMOS MOTION DATE 04/14/2025

Petitioner, MOTION SEQ. NO. 001

- V -

FEDERICO COLON, BOARD OF ELECTIONS IN THE CITY DECISION + ORDER ON OF NEW YORK, MOTION

Respondent. ---------------------.X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 5, 6, 8, 9, 10, 11 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 Federico Colon

(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 in the City of New York (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, reversing any contrary

determination of Respondent Board of Elections that have been made or may hereinafter be

made (Motion Seq. 001). This memorandum decision is limited to addressing Petitioner -

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Objectors' claim that "signatures have been forged and/or other fraud has been committed"

(Verified Petition, ~15( q); 4/25/25 Oral Argument).

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.pdf).

Petitioner-Objectors did not present a complete written offer of proof as required by the 2025

New York County Election Law Part Rules. Petitioner-Objectors argue that the written

Objections and 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~~ 6, 7), is sufficient proof of claims of fraud.

The Objections and Specifications of Objections to the Respondent-Candidate's Designating

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Petition claimed filed with the Respondent Board of Elections by Petitioner-Objectors, however,

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 in his Affirmation in Opposition that Petitioner-

Objectors cannot cure their deficient pleadings with the attempted filing and serving of a Bill of

Particulars because the fraud claims alleged therein alleged are also vague and contain

insufficient detail to apprise Respondent-Candidate of the allegations made against his

designating petition (Affirmation in Opposition).

This Court agrees. CPLR § 402 limits pleadings in a special proceeding to a petition, an answer,

and a reply to any counterclaim asserted unless the Court permits the submission of other

pleadings. The 2025 Election Law Part Rules for New York County specifically permits only an

aggrieved candidate to file a Bill of Particulars (2025 New York County Election Law Part

Rules). 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,

especially in light of this Part's additional requirement that any party alleging fraud present a

complete written offer of proof prior to the return date of these proceedings (id.), which

Petitioner-Objectors did not do.

As Petitioner-Objectors claim of fraud is pied 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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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]).

Accordingly, it is

ORDERED that the portion of Petitioner-Objectors Order To Show Cause seeking to invalidate

the Designating Petition of the Respondent-candidate Federico Colon 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, ~15( q); is denied and the claim dismissed for failure to

plead fraud with particularity pursuant to CPLR 3016(b); and it is further

ORDERED 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.

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This constitutes the Decision and Order of the Court

4/28/2025 DATE CHECK ONE: CASE DISPOSED

GRANTED 0 DENIED

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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