A state appeals judge Monday ordered the Village of Pelham Manor to show why the court should not allow last week’s ruling approving a referendum on Manor election day to remain in force during the appeals process.

Associate Justice Lourdes Ventura of the Appellate Division’s Second Department set Aug. 12 as the deadline for motions demonstrating why the court shouldn’t vacate an automatic stay of the court ruling that might be triggered under state law. The judge denied a request by Erica Winter and Allison Frost, who are battling the village’s appeal of the state court ruling ordering that the referendum go forward, for a temporary restraining order, which would have blocked the stay immediately.

On Friday, Pelham Manor appealed Supreme Court Judge Linda Jamieson’s decision on July 30 that the referendum must be put on the ballot Nov. 5. Jamieson rejected all of the reasons Pelham Manor Village Clerk Lindsey Luft (who is also village manager) gave for ruling the 801-signature referendum petition invalid.

The appellate order covers a specific provision in state law on verdicts against local governments. At the same time, eliminating the stay may be key to getting before voters the referendum to move Pelham Manor elections from the third Tuesday in March to election day in November. Under state law, an automatic stay is imposed on some court rulings against municipalities when the judgments are appealed. Should the appellate division rule the stay will not be enforced during the appeal process, the proposition would likely be put on the ballot while the appeal proceeds.

The state deadline for Luft to send the petition for the referendum to the Westchester Board of Elections was on Monday.

As of Friday, Luft had not submitted the petition, which Judge Jamieson ordered Luft to do “immediately,” according to a filing with the appeals court by Jeffrey Gasbarro, who is representing Winter and Frost. In asking that any automatic stay be overridden, Gasbarro wrote “further delay in the village clerk’s obedience to the Supreme Court’s order will only serve to complicate this matter.”

Monday’s cutoff was probably not the last word in the matter.

“The August 5, 2024 deadline does not deprive the courts of jurisdiction to place our referendum on the ballot,” said Frost, who is Pelham Democratic Town Committee chairwoman.

Kathleen McGrath, director of public relations for the New York State Board of Elections, said, “There could possibly be circumstances where perhaps a court would order such relief. There are far too many different fact patterns that could influence such hypotheticals, so we would not be comfortable commenting on them even broadly.”

Said Winter, “Although the Appellate Division declined our request for a temporary restraining order, our motion to vacate any stay will be heard on Aug. 12 by a full panel of Appellate Division justices. We are confident that the Village of Pelham Manor cannot avoid holding this referendum by attempting to run out the clock, and that Justice Jamieson’s decision will be affirmed on appeal.”

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 Frost sued Luft, the all-Republican Pelham Manor Board of Trustees and the Westchester Board of Elections in state court on July 8 seeking to reverse that decision and force the proposition on to the November ballot.

That case resulted in Judge Jamieson’s decision that the referendum petition was valid, should be sent to the board of elections “immediately” and the referendum should be put before voters.

On Aug. 12, the appeals court will also consider responses on a motion to dismiss a separate appeal by Westchester Republican Election Commissioner Douglas Colety. This was also requested by Winter and Frost. Gasbarro, their attorney, wrote on Monday that Colety could not appeal as an individual, as the board of elections had been an original defendant in the case, not separate commissioners.

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