The Village of Pelham Manor filed Friday morning an appeal of a state judge’s ruling that a referendum on moving the village’s election day must be put on the ballot Nov. 5, and at the same time, failed to “immediately” send the certified petition for the proposition to the Westchester Board of Elections, as ordered by the judge, according to papers submitted by both sides with the appeals court.

The delay could be critical, as is the appeal. In fact, whether the referendum to shift Pelham Manor elections from the third Tuesday in March to election day in November now appears to be a game of hours. Monday (today) is the state deadline for submitting ballot propositions to the board of elections.

Without providing additional information, John Murtagh, attorney for Village Clerk Lindsey Luft (who is also village manager) and the all-Republican village board, said in a notice of appeal that state Supreme Court Judge Linda Jamieson was incorrect in overturning the rejection by Luft of the 801-signature petition.

Jeffrey Gasbarro, who is representing the group that collected signatures for the referendum, said in a Friday email to the Manor’s attorneys that he would appear in person at 10 a.m. Monday before the Appellate Division’s Second Judicial Department to ask the court to grant a temporary restraining order to block any automatic stay of Jamieson’s ruling that could be imposed under state law as a result the appeal.

Without such an order in the next few hours, the petition will die by virtue of missing the deadline to get on the ballot.

Erica Winter, an organizer of the Committee to Move the Manor Village Election, delivered the petition on July 1 to Luft, who in her role as village clerk reviewed and rejected the petition four days later, on July 5. Winter and Pelham Democratic Town Committee Chairwoman Allison Frost sued in state civil court on July 8 seeking to reverse that decision and force the proposition on to the November ballot.

On Tuesday, Judge Jamieson ruled all of the reasons Luft gave for rejecting the petition were without merit, according to the judge’s decision and order.

With the deadline looming, Gasbarro highlighted the delay by Luft in sending the petition to the board of elections as well as the timing of communications he received from Pelham Manor’s attorney.

“The village clerk defied the Supreme Court’s directive to ‘immediately’ transmit a certified copy of the required paperwork to the board of elections,” he wrote in his request for a temporary restraining order.

Timeline

In his filing with the appeals court, Gasbarro provided the following timeline for the actions that followed Judge Jamieson’s ruling last Tuesday:

• Friday at 9:56 a.m. – Gasbarro sent an email to Pelham Manor’s attorneys requesting the status of Luft’s compliance with the judge’s order. (“Pelham Manor’s attorneys did not respond to that email,” he wrote.)
• Friday at 11:05 a.m. – Pelham Manor filed its notice of appeal.
• Friday at 2:47 p.m. – Westchester Republican Election Commissioner Douglas Colety filed a “purported” notice of appeal.
• Friday at 4:02 p.m. – Murtagh (Luft and the village’s lawyer) called Gasbarro and said it was Murtagh’s position the appeal would trigger an automatic stay provision in state law.
• Friday at 4:46 p.m. – Gasbarro emailed all parties that he would seek a temporary restraining order vacating any automatic stay in person at the appeals court in Brooklyn.
• Friday at 8:33 p.m. – Gasbarro sent an email to all parties saying he would seek a temporary restraining order for all notices of appeal, including Colety’s.

Separately in his filing, Gasbarro said Colety could not appeal as an individual, as the board of elections had been an original defendant in the case, not individual commissioners.

An attorney for Westchester Democratic Election Commissioner Tajian Nelson filed a motion in support of Gasbarro’s arguments and stated Colety’s appeal did not represent the Westchester Board of Elections.

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