080609 Gleason V Gerson

080609 Gleason v Gerson

67 1 2 3

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM ----------------------------------------------X

4

PETER GLEASON, Petitioner-Candidate Aggrieved,

5 -against6 ALAN J. GERSON, 7 Candidate, 8 -and9 BOARD OF ELECTIONS IN THE CITY OF NEW YORK, 10 11

Respondents. ----------------------------------------------X Index # 110682/09 Proceedings

12 Supreme Court of New York 71 Thomas Street New York, New York August 6, 2009

13 14 B E F O R E: 15 16

SPECIAL REFEREE LESLIE S. LOWENSTEIN,

17 A P P E A R A N C E S: 18 19 20

DUNNINGTON, BARTHOLOW & MILLER, LLP 1359 Broadway New York, New York 10018 BY: RAYMOND J. DOWD, ESQ. Attorney for Petitioner

21 22 23 24

KANTOR, DAVIDOFF, WOLFE, MANDELKER, TWOMEY & GALLANTY, PC 51 East 42nd Street New York, New York 10017 BY: LAWRENCE A. MANDELKER, ESQ. Attorney for Defendant

25 26

DEBORAH A. ROTHROCK, RPR Official Court Reporter DEBORAH A. ROTHROCK, RPR Page 1

080609 Gleason v Gerson

68 1

-Proceedings-

2

THE COURT:

By Decision and Order of

3

Justice Sherri-Klein Heitler and Justice Edward

4

H. Lehner, in the matter bearing the caption of

5

Peter Gleason versus Alan Gerson and the Board of

6

Elections, et al., said matter bearing Index

7

number 110682 of 2009.

8 9

I, Leslie S. Lowenstein, has been designated as a Special Referee to hear and

10

report with recommendations upon the issue of the

11

application brought by Peter Gleason to invalid

12

the designating petitions of candidate Alan J.

13

Gerson.

14

In an off the record conference in the

15

presence of counsel, the parties agreed that the

16

transcription of this proceeding would not be

17

waived and that the cost of the transcription

18

will be equally shared by the parties.

19

So stipulated?

20

MR. DOWD:

21

MR. MANDELKER:

22

THE COURT:

23 24

Yes, sir. Yes, sir.

Could I have the appearances

of counsel. MR. DOWD:

Dunnington, Bartholow &

25

Miller, 1359 Broadway, Suite 600, New York, New

26

York 10018, counsel for Petitioner Aggrieved

DEBORAH A. ROTHROCK, RPR Page 2

080609 Gleason v Gerson 69 1 2

-ProceedingsCandidate Peter Gleason.

3

Good morning.

4

THE COURT:

5

MR. MANDELKER:

6

For Respondent Alan Gerson, Lawrence

Good morning. Good morning.

7

Mandelker, Kantor, Davidoff, Wolfe, Mandelker,

8

Twomey & Gallanty.

9

firm, Daniel S. Kokhba.

My collogue from the same My collogue Sarah

10

Trimming from the law firm of Gaffin & Mayo

11

located at 225 Broadway, New York, New York.

12

Thank you.

13

THE COURT:

14

At this time, Mr. Dowd, inasmuch as this

Okay.

15

is your petition to invalid, it would strike me

16

that you have the burden of proof and you would

17

over the first opening statement if you wish.

18

Bearing in mind, as I indicated on Tuesday, that

19

an opening statement is just that, it is there

20

for the purpose of framing out that which you

21

will demonstrate and prove upon the plenary

22

hearing.

23 24 25 26

Do you wish to proceed with an opening statement? MR. DOWD:

Yes, sir.

I believe Mr.

Mandelker has an application.

DEBORAH A. ROTHROCK, RPR

Page 3

080609 Gleason v Gerson 70 1 2 3

-ProceedingsMR. MANDELKER:

If I may, I will make it

that after the opening statement.

4

THE COURT:

5

MR. DOWD:

As you wish. Just to start, I believe Mr.

6

Mandelker and I have agreed that any evidence

7

presented in the validate proceeding, which

8

occurred on August 4, 2009, in Gerson versus the

9

Board of Elections may be used in this

10 11

proceeding. MR. MANDELKER:

And vice-a-versa.

In

12

other words, any evidence properly admitted in

13

either proceeding can be considered by the

14

Referee in both cases.

15

THE COURT:

So stipulated by both?

16

MR. MANDELKER:

17

MR. DOWD:

18

THE COURT:

19

Continued.

20

MR. DOWD:

21

This morning our issue is -- we really

Yes, sir.

Yes. So ordered.

Thank you.

22

have two issues here; whether or not the

23

designating petition of Alan Gerson substantially

24

complied with the rules of the Board of

25

Elections, and the Election Laws of the State of

26

New York for designating petitions for the Office

DEBORAH A. ROTHROCK, RPR

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080609 Gleason v Gerson 71 1

-Proceedings-

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of Public Office of Counselman for the First

3

Counsel District of the The City of New York.

4

THE COURT:

I assume Mr. Dowd, we're

5

going way beyond the cover sheet issues at this

6

point?

7 8

MR. DOWD: procedure.

9 10

No, this is the invalidate

THE COURT:

Then we are on the cover

sheet issue?

11

MR. DOWD:

The issue presented here, is

12

whether or not the designating petition was valid

13

in compliance with the Election Law and the Rules

14

of the Board of Elections of the State of New

15

York.

16

THE COURT:

17

MR. DOWD:

You may proceed. If we look at the Election

18

Law 16-134, it authorizes the Board of Elections

19

to make rules regarding cover sheets and the

20

Election Law itself contained provisions that

21

candidates must satisfy.

22

So, the burden of proof, since the

23

candidate is off the ballot, is on the candidate

24

to show that he has complied with the Election

25

Law.

26

We believe that the burden of proof in

DEBORAH A. ROTHROCK, RPR

72 Page 5

080609 Gleason v Gerson 1 2 3

-Proceedingsthis proceeding remains with the Respondent. Now, the Respondent has to show full

4

compliance with the Election Law, not just the

5

cover sheet issue.

6

show today, through the testimony of four

7

witnesses, that there was not substantial

8

compliance with the Election laws.

9

particular, there was alteration of the

And what we're going to do is

And, in

10

designating petition that was unauthorized and

11

violates the Election Law.

12

show that particularly with respect to the Rules

13

of the Board of Elections, that there was no

14

substantial compliance.

15 16 17

And we are going to

At the Board of Elections on July 24th -- let me back up. On July 21st, the Board of Elections had

18

sent a letter to candidate Gerson.

19

letter pointed out that there was a defect in the

20

designating petition.

21

volume 312 of the designating petition, the

22

address did not match the cover sheet.

23

That defect was that in

Now, the Board gave the candidate an

24

opportunity to cure the error.

25

three days.

26

And the

The candidate had

Rather than cure the error, in

DEBORAH A. ROTHROCK, RPR

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080609 Gleason v Gerson 1

-Proceedings-

2

accordance with the Rules of the Board of

3

Elections, the candidate filed a document that

4

complied with none of the Rules of the Board of

5

Elections.

6

THE COURT:

Mr. Dowd, with all due

7

respect, I think we're -- I seem to be getting

8

more of a summation rather than an opening.

9

I would prefer that you stay with the opening.

10

MR. DOWD:

And

You will hear testimony from

11

Alan Gerson, David Reck, Jessica Loeser, and

12

Renee Abramowitz.

13

I would like to call the first witness.

14

THE COURT:

I would like to hear an

15

opening statement perhaps from Mr. Mandelker if

16

he so choices.

17

MR. DOWD:

Certainly.

18

MR. MANDELKER:

If your Honor pleases,

19

most of the ground that was covered in my

20

friend's opening statement was ground that we

21

plowed through at the hearing the other day on

22

the proceeding to invalidate, whether the cover

23

sheet complied with the laws, what the Board of

24

Elections did, the documents, and so on and so

25

forth.

26

because you already have evidence on that.

So I am not going to dwell on that

DEBORAH A. ROTHROCK, RPR

74 Page 7

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080609 Gleason v Gerson -Proceedings-

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It is not clear to me what counsel

3

intends to obtain from the witnesses.

If he's

4

dealing with a cover sheet, then I will await and

5

cross examine accordingly.

6

issues beyond the cover sheet I may have a motion

7

in limine if I see that's necessary.

If he deals with

8

So I will await to see what he proposes

9

to ask of witnesses and reserve my right to make

10

a motion in limine to prevent Mr. Dowd from going

11

beyond the cover sheet issue.

12

Thank you.

13

THE COURT:

14

Dowd.

Call your first witness Mr.

Go outside and get your first witness.

15

MR. DOWD:

16

First, do we have the file from the

17

validating proceeding here in the courtroom.

18

THE COURT:

Yes, your Honor.

The only file I have is the

19

Court's file.

20

Board of Elections, if that is what you're

21

asking.

22 23 24 25 26

I don't have anything from the

MR. DOWD:

In other words, Petitioner's

and Respondent's exhibits. THE COURT:

You are free to examine what

I have, sir. MR. DOWD:

Just to hand to the witness

DEBORAH A. ROTHROCK, RPR

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Direct - A. Gerson - by Petitioner Page 8

080609 Gleason v Gerson 2

if we want to inquire as to the exhibits that

3

came in on the hearing.

4

THE COURT:

I have the other file with

5

me as well.

6

admitted on August 4th.

7 8

I have the exhibits that were

MR. DOWD:

Thank you, that was it.

I am

going to go get Alan Gerson.

9

MR. MANDELKER:

Before you go --

10

THE COURT:

Off the record.

11

(Off-the-record discussion).

12

(Witness enters the courtroom.)

13

MR. GERSON:

14

THE COURT:

15

ALAN J. GERSON, a witness called on

Good morning, your Honor. Raise your right hand.

16

behalf of the Petitioner, having been first duly

17

sworn by the Court, was examined and testified

18

under oath as follows:

19

DIRECT EXAMINATION

20

BY MR. DOWD:

21

THE WITNESS:

22

THE COURT:

23 24

I do. State your name and address

for the record. MR. GERSON:

Alan J. Gerson.

505

25

LaGuardia Place, New York, New York 10012,

26

Apartment 20-A, as in apple.

DEBORAH A. ROTHROCK, RPR

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Direct - A. Gerson - by Petitioner Page 9

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080609 Gleason v Gerson THE COURT: Proceed.

3

MR. DOWD:

4

I would like to show the witness

5

Thank you, your Honor.

Respondent's A from the August 4th hearing.

6

THE COURT:

Respondent's A admitted into

7

evidence on August 4, 2009, is now in the

8

possession of the witness.

9

(Handing.)

10 11 12 13 14

You may proceed.

MR. DOWD: Q

Thank you.

Mr. Gerson, could you identify what

Respondent's A is ? A

It is a subpoena duces tecum, excuse me

for the mispronunciation, directed to me.

15

Q

Have you seen this document before?

16

A

Yes.

17

Q

When was the first time you saw it?

18

A

This past Saturday.

19

Q

And what were the circumstances under

20

which you viewed it?

21

MR. MANDELKER:

22

We went over this.

23

the other proceeding.

24

admissible.

25 26

THE COURT: material.

Your Honor, I object.

He's admitted receiving it in The testimony is

I will allow it as leading

The objection is overruled.

DEBORAH A. ROTHROCK, RPR

77 1 2

Direct - A. Gerson - by Petitioner A

It was contained within an envelope that Page 10

080609 Gleason v Gerson 3

was delivered to my apartment by the United States

4

Postal Service and I first saw it upon opening the

5

envelope, which was delivered by Certified Mail.

6

Q

Did you read and understand it?

7

A

Yes, I did.

8

Q

And the document asked for you to bring

9 10

documents.

Did you bring any documents with you

pursuit to the subpoena?

11

A

No.

12

Q

Did you bring a printer's Affidavit?

13

A

No, I did not.

14

Q

Did you bring your calendar?

15

A

No.

16

Q

Did you bring any printer's --

17

A

I have no such documents responsive to

18

the subpoena in my possession.

19 20 21

Q

Did you bring any printer's proofs with

A

No.

you?

22

THE COURT:

He's answered your question,

23

sir.

24

responsive to your subpoena.

25

take him at his word.

26

He told you that he has no documents

MR. DOWD:

I think we should

Yes, sir.

DEBORAH A. ROTHROCK, RPR

78 1 2

Direct - A. Gerson - by Petitioner THE COURT:

Let's move on.

Page 11

3

080609 Gleason v Gerson MR. DOWD: Yes, sir.

4

I would like to show the witness

5

Petitioner's 3, if I may, in evidence.

6 7

THE COURT:

Petitioner's 3 admitted on

August 4, 2009, now in possession of the witness.

8

THE WITNESS:

9

(Handing.)

10

Q

Thank you.

Now, Mr. Gerson, I would like to ask that

11

you turn to the second page of Petitioner's 3.

12

you'll see there's about one-third of the way down the

13

page an asterisk and it says 505 LaGuardia Place.

14

you see that?

15

A

And

Do

I see a marking, I'm not sure if it is an

16

asterisk or crossing out.

I see a marking that could

17

be an asterisk but I could not identify it as such.

18

Q

Have you seen this document before?

19

A

No.

20

Q

Do you know who Renee Abramowitz is?

21

THE COURT:

22

THE WITNESS:

23

THE COURT:

24

No, not for sure, no. It is not an answer; yes,

no, or I don't know.

25 26

Yes or no sir.

THE WITNESS:

No.

No, I do not know.

Thank you, your Honor, I do not know.

DEBORAH A. ROTHROCK, RPR

79 1 2 3

Direct - A. Gerson - by Petitioner Q

Are you aware of any persons collecting

signatures on your behalf on June 9, 2009? Page 12

080609 Gleason v Gerson 4

A

I do not know.

I mean I --

5

Q

Do you recall any persons collecting

6

signatures for your campaign on the first day for

7

signing designating petitions?

8 9

A

I recall that persons were collecting

signatures on the first day.

I do not recall the

10

specific individuals who were doing that on any

11

particular day.

12 13

Q

Do you recall Edward Braunstein

collecting signatures for you?

14

A

No.

15

Q

Do you recall Camden Ackerman collecting

16

signatures for you?

17

A

No.

18

Q

Do you recall Jessica Loeser collecting

19

signatures for you?

20

A

No.

21

Q

Now, do you recall when you first learned

22

of a printer's error in your petitions?

23

MR. MANDELKER:

24

answered the other day.

25 26

THE COURT:

Objection.

Asked and

Was that question posed the

other day, the other day being August 4th, 2009.

DEBORAH A. ROTHROCK, RPR

80 1 2 3

Direct - A. Gerson - by Petitioner MR. DOWD:

The response was, "If I had

my calendar I would be able to answer the Page 13

080609 Gleason v Gerson question."

4 5

THE COURT:

6

Do you have the question

from that day?

7

MR. DOWD:

8

THE COURT:

9

Not with me. That is your best

recollection of the testimony, sir, I'm asking?

10

MR. DOWD:

11

THE COURT:

12

Yes, sir. You can pose the question.

The objection is overruled.

13

Read the question back Madam Reporter.

14

(Requested portion read by the Court

15

Reporter.)

16

A

I do not recall the specific date.

I

17

recall it was when the printer was in the process of

18

printing petitions at the time when petitions were

19

due.

20

Q

Did you ever see those petitions?

21

A

Your Honor, I don't know which petitions

22 23 24 25 26

he's referring to. Q

Did you ever see petitions present

printed by your printer? A

Any petitions printed by my printer, of

course, yes.

DEBORAH A. ROTHROCK, RPR

81 1

Direct - A. Gerson - by Petitioner

2

Q

When?

3

A

I first saw petitions printed by the

4

printer when I went over to the printer one evening Page 14

080609 Gleason v Gerson 5

prior to the collection of signatures when I was

6

informed by some who had seen them before then that

7

there appeared to be a printer's mistake.

8

Q

Who informed you of that?

9

A

More than one person.

10

Q

Who?

11

A

One person was Mr. David Weinberger.

12

was one of the first.

13

I cannot -- I remember receiving his phone call.

14

not know who else.

There was so much discussion.

15

THE COURT:

16

THE WITNESS:

17

He

I do

Mr. Gerson. Yes, I'm sorry, your

Honor.

18

THE COURT:

Mr. Gerson, we went through

19

this the other day.

20

question.

21

This is not a speech making forum.

22

nothing of that sort.

23

law.

24

of it.

I want you to answer the

There is no need for embellishment. This is

This is a proceeding under

Respond to the questions and that's the end

25

THE WITNESS:

Yes, sir.

26

I do not recall who else.

DEBORAH A. ROTHROCK, RPR

82 1 2 3 4

Direct - A. Gerson - by Petitioner Q

Did you speak to the printer about the

problem? A

Yes. Page 15

5

Q

080609 Gleason v Gerson And what did you say?

6

A

I said you need to reprint the petitions

7 8 9

with the correct address. Q

And did you see petitions printed with

the correct address?

10

A

Yes.

11

Q

When?

12

A

After he reprinted it.

13

Q

When?

14

A

I don't recall the specific date but it

15

was at that time --it was hours after I arrived at the

16

printer, as I described, I first saw for the first

17

reprinted batch.

18 19

Q

Was this prior to petitions being

circulated by signers?

20

A

Yes.

21

Q

Did there come a time that you learned

22

that one of your petitions, following the time that

23

they were distributed to your champagne to collect

24

signatures, that there was an error remaining in the

25

petition?

26

MR. MANDELKER:

Objection to form.

It

DEBORAH A. ROTHROCK, RPR

83 1

Direct - A. Gerson - by Petitioner

2

is the use of the word petition.

3

counsel means sheets or the entire petition.

4

Petition refers to the standard --

5

THE COURT: Sustained. Page 16

I don't know if

Strike the

080609 Gleason v Gerson 6

question.

7

Q

Repose your question.

Following the distribution of the

8

petition forms to persons in your champagne who were

9

to collect signatures, did you subsequently learn of

10

an error in those forms?

11

THE COURT:

12

THE WITNESS:

13

Yes, no, or I don't know. I don't know because, your

Honor, I don't follow the question.

14

THE COURT:

15

Continue sir.

16

Q

That is the answer.

17

All right. Did you find out that there was a mistake

18

in your petitions after they were distributed to

19

members of your champagne to collect signatures?

20

MR. MANDELKER:

Objection to form.

21

Again, if he means sheets, let him just say it

22

otherwise it is confusing.

23

THE COURT:

The true objection would be

24

leading.

25

been declared hostile here.

26

It is his witness.

MR. MANDELKER:

No one has ever

Objection leading.

DEBORAH A. ROTHROCK, RPR

84 1

Direct - A. Gerson - by Petitioner

2 3 4 5

THE COURT: Q

Sustained.

When did you first hear of the address

1505 LaGuardia Place? A

When I went to the printer and I saw a Page 17

6

080609 Gleason v Gerson batch of sheets printed with that incorrect address.

7

Q

8

again?

9

A

10 11

Did you ever see or hear of that address

Yes, in many conversations pertaining to

those petitions, including now. Q

What was the first time, subsequently to

12

you going to the printer and correcting the error,

13

that you again heard of the address 1505 LaGuardia

14

Place?

15

A

16

In conversations that took place within

hours after I was at the printer.

17

Q

What conversations?

18

A

We had to inform people in our champagne

19

or in clubs who were supporting the champagne why

20

petitions -- why the petitions would not be available

21

at the time we had originally expected and I told them

22

there was the printer's error and they asked, and some

23

of them had already heard of it and some had not.

24

there were many such conversations where the address,

25

incorrect address 1505 was discussed either by people

26

raising it to me or vice-versa, within hours after the

DEBORAH A. ROTHROCK, RPR

85 1 2 3 4

Direct - A. Gerson - by Petitioner printing error was discovered. Q

Did you have any conversations with

anyone from the Truman Club regarding the error?

5

A

Yes.

6

Q

Who? Page 18

So

080609 Gleason v Gerson 7

A

David Weinberg was District leader from

8

the Truman Club, as I testified earlier, he was one of

9

the first people to spot that error.

10

Q

And what was your conversation with him?

11

A

I told him we were going to have the

12

petitions reprinted.

The printer had agreed to do so

13

at the printer's expense because the printer

14

acknowledged that it was a printing computer error.

15

The printer acknowledged that we had correctly proofed

16

of the submission to the printer, and we submitted it

17

properly but he acknowledged that it was his computer

18

error and I informed all of this to Mr. Weinberger,

19

and that it would take him, because one of their

20

presses, the presses for the long petitions were not

21

available that night.

22

long petition because they had many candidates, in

23

addition to myself.

24

the printer had said that the long, his long petition

25

would not be available until later that following day

26

because there was a problem with that printer or the

The Truman Club had ordered a

So I informed Mr. Weinberger that

DEBORAH A. ROTHROCK, RPR

86 1

Direct - A. Gerson - by Petitioner

2

staffing of that printing machine.

3

conversation.

4 5 6

Q

And that was my

And you still don't recall what day this

was, this conversation; is that correct? A

It was that day, either slightly before Page 19

7

080609 Gleason v Gerson or slightly after midnight when I was at the printer

8

and then in a follow-up conversation that following

9

morning.

10 11

Q

Now, do you know how the Truman Club got

petitions with incorrect addresses on them?

12

A

Each club picks up its own petitions

13

directly from the printer and that is as much as I

14

know.

15

Q

Now, following these conversations --

16

A

Excuse me, your Honor.

I do recollect

17

that David Weinberger did, in one of those

18

conversations to which I referred, informed me that

19

they had printed up petitions, quickly, you know, they

20

do things very quickly he pointed out to me.

21

as far as I know how the Truman Club got any

22

petitions.

23

Q

That is

Following this conversation with Mr.

24

Weinberger, did you have other conversations regarding

25

the address 1505 LaGuardia Place, and if so what were

26

they?

DEBORAH A. ROTHROCK, RPR

87 1 2

Direct - A. Gerson - by Petitioner A

3

THE COURT:

4

sir.

5

Q

6 7

Including our conversation? One question at the time,

Ask him if he had conversations. Did you have conversations after that

that involved the address 1505 LaGuardia Place? A

After my conversation with Mr. Page 20

080609 Gleason v Gerson 8

Weinberger, yes.

9 10

Q

What was the next conversation that you

recall?

11

A

As I think I already said, I had

12

conversations with many leaders of the different clubs

13

supporting us as well as campaign volunteers who had

14

expected to pick up petitions either from the printer

15

in some cases directly, or in other cases from our

16

champagne office.

17

petitions would not be available when we had

18

originally thought.

19

I had told them that the printer had made an error,

20

that a stroke was added by their computer on the -- on

21

our address, to make the address incorrectly appear as

22

1505.

23

their mistake because we had properly proofed these

24

submissions.

25

reprint all of the petitions with my address, but that

26

it would take a little bit of time because they did

And I informed them as to why the

And it was the same conversation.

In that the printer had said it was entirely

And, therefore, they were going to

DEBORAH A. ROTHROCK, RPR

88 1

Direct - A. Gerson - by Petitioner

2

not have the staffing available to operate the press

3

that was required for the long form.

4

form with my name only would be available sooner, but

5

those people who wanted the long form would have to

6

wait, you know, additional hours, whether it was a day

7

or day and-a-half.

And the short

That was my conversation repeated Page 21

8 9

080609 Gleason v Gerson to him individuals. And, of course, they responded -MR. MANDELKER:

10

THE COURT:

11

THE WITNESS:

Objection.

Excuse me. Sorry, your Honor, it is a

12

hazard of my trade.

13

THE COURT:

14

Off the record.

15

(Off-the-record discussion).

16

MR. DOWD:

I'm not looking for hazards.

Honorable Referee, I just

17

spoke with counsel for the Respondent and he has

18

no objection with me presenting this document to

19

the witness.

20

identification as --

21 22

I would like to mark it for

THE COURT:

If there's no objection it

would be in evidence as Petitioner's No. 1.

23

Madam reporter, mark it accordingly.

24

MR. DOWD:

25 26

If I may are we continuing

our list of exhibits? THE COURT:

No, this is a separate

DEBORAH A. ROTHROCK, RPR

89 1 2 3

Direct - A. Gerson - by Petitioner proceeding. I may issue one report on the basis of

4

my decision for my personal discretion to

5

consolidate the two matters, they bear two

6

separate and distinct index numbers.

7

related but they are, nevertheless, distinctly

8

separate proceedings. Page 22

They maybe

080609 Gleason v Gerson 9

Therefore, it is that particular exhibit

10

will be marked into evidence by stipulation of

11

the parties as Petitioner's No.1.

12 13

I don't see you why that should be an issue for you.

14

MR. DOWD:

Since Mr. Mandelker and I

15

have agreed that the evidence that was presented

16

in the prior proceeding, just not to confuse the

17

record.

If there's two Petitioner's 1.

18

THE COURT:

19

I don't think it will confuse me, if

20

I must stop you there.

that is what your fear is.

21

MR. DOWD:

No.

22

will not be confused.

23

here and --

24

THE COURT:

You, sir, we believe We're preserving a record

Then make certain that

25

Justice Lerner is not confused and anyone further

26

up the line is not confused.

That will be your

DEBORAH A. ROTHROCK, RPR

90 1 2

Direct - A. Gerson - by Petitioner issue.

3

MR. DOWD:

4

THE COURT:

Yes, sir. Madam Reporter, please mark

5

the document as Petitioner's No. 1. in evidence

6

as of this date.

7

MR. DOWD:

If I may read the caption.

8

"This is an Official Document of the New Page 23

9

080609 Gleason v Gerson York State Board of Elections" --

10

THE COURT:

11

MR. DOWD:

New York City or State? "New York State Board of

12

Elections 2009 Political Calendar for Primary and

13

General Elections."

14

Q

Mr. Gerson, I would like you to --

15

THE COURT:

16

MR. DOWD:

17

THE COURT:

18

MR. DOWD:

19

(Handing.)

20

Q

That is the document? Yes, sir. Hand it up to the witness. Yes, sir.

I would like you to look at the date of

21

June 9th on the Political Calendar there's the second

22

entry there could you please read that?

23 24 25 26

A

"First day for assigning designating

petitions Section 134(4)." Q

Now, looking at the Political Calendar,

have you seen this calendar before?

DEBORAH A. ROTHROCK, RPR

91 1

Direct - A. Gerson - by Petitioner

2

A

No.

3

Q

Does looking at that date, June 9th,

4

refresh your recollection as to the date that you had

5

conversations with David Weinberger regarding the

6

printer's error?

7

A

No.

8

Q

Does it refresh your recollection as to

9

the date that you had the conversations with the Page 24

080609 Gleason v Gerson 10

printer Mr. Handell regarding his error?

11

A

It would have been -- yes.

12

Q

And now that your recollection is

13

refreshed, can you tell us what day you had the

14

conversations with the printer regarding the error in

15

the designating petition --

16

A

Assuming the correctness of this

17

calendar, which I assume it would have been the 7th,

18

8th, or 9th, that is the best.

19

THE COURT:

20

THE WITNESS:

21

THE COURT:

22

THE WITNESS:

23 24 25 26

Q

Of which month? Of June. Which year? 2009.

Thank you.

And do you recall now what date the

sheets were to be delivered to the clubs? A

Well, originally, before we discovered

the printer's error they were obviously -- excuse me,

DEBORAH A. ROTHROCK, RPR

92 1

Direct - A. Gerson - by Petitioner

2

they were supposed to have been delivered no later

3

than June 8th.

4 5 6

Q

Do you recall when they were actually

delivered to the clubs? A

The corrected versions were delivered

7

after June 9th, that is why we were upset.

8

different times to different clubs.

9

Q

At

So, were incorrect petitions delivered to Page 25

10 11

080609 Gleason v Gerson clubs, to your knowledge? A

I -- I have no knowledge.

The champagne

12

certainly did not.

13

whether or not the printer delivered it.

14

Q

And I have no knowledge as to

Did you ever receive a call from one of

15

the clubs saying in sum or substance saying we've got

16

incorrect petitions?

17

A

Yes.

As I have said, yes, how they

18

received it, whether they were delivered, or picked

19

up, I do not know.

20 21 22

Q

When did you first get a call from one of

the clubs saying we have an incorrect petition? A

It would have been, assuming the

23

correctness of this calendar, it would have been June

24

7th, 8th, 9th, in that timeframe, that's the best that

25

I could do.

26

This is also the month that we were doing

DEBORAH A. ROTHROCK, RPR

93 1 2

Direct - A. Gerson - by Petitioner the City budget, so I was preoccupied.

3

MR. MANDELKER:

4

THE COURT:

Objection.

Sir, I must caution you at

5

this point that you are only to answer the

6

questions.

7

THE WITNESS:

8

MR. DOWD:

9

identification --withdrawn.

10

Q

Yes, sir.

Yes, sir.

I would like to mark for

Moving forward in time. Page 26

080609 Gleason v Gerson 11

THE WITNESS:

12

THE COURT:

13

(Handing.)

14

Q

Do I give this to you? Yes, thank you.

Moving forward in time from the time that

15

you first learned of the error, did there come another

16

time that you learned that the problem of the 1505

17

LaGuardia Place address existed?

18

A

Yes.

19

Q

And when was that?

20

A

It was when I -- when I learned that your

21

client had filed a petition on that basis or an

22

objection on that basis.

23

Q

The first time after the period around

24

June 9th that you learned of a problem involving the

25

address 1505 LaGuardia Place, you believe was sometime

26

after July 24th?

DEBORAH A. ROTHROCK, RPR

94 1

Direct - A. Gerson - by Petitioner

2

THE COURT:

3

Mr. Mandelker has remained silent but I

4 5

Stop.

will no longer remain silent. This is your witness.

We are on direct

6

examination.

And the leading has exceeded the

7

bounds of good taste at this point.

8

I will leave it at that.

9

MR. DOWD:

10

THE COURT:

I will rephrase. Thank you.

Page 27

Thank you.

11 12

080609 Gleason v Gerson Do you recall, approximately, when you

Q

learned of Mr. Gleason's objections to your petitions?

13

A

It was at the time that objections were

14

due at the Board of Elections, which were within the

15

past couple of weeks.

16

Q

Do you recall the Board of Elections

17

pointing out to you any errors in your designating

18

petitions?

19

A

The Board of Elections pointed out the

20

alleged errors in the designated petitions through

21

mail I had received from them.

22 23

Q

LaGuardia Place come to your attention?

24 25 26

At that time did the address 1505

A

Not directly from the Board of Elections,

Q

From anyone else?

no.

DEBORAH A. ROTHROCK, RPR

95 1

Direct - A. Gerson - by Petitioner

2

A

Yes.

3

Q

And what did you hear about the address

4

1505 LaGuardia Place at that time?

5

MR. MANDELKER:

6

THE COURT:

Objection hearsay.

No, overruled.

7

hearsay.

8

specifically being admitted.

9

question.

There's no

There's no out of the court statement You may answer the

10

Read the question back Madam reporter.

11

(Question read.) Page 28

080609 Gleason v Gerson 12

THE WITNESS:

I heard that your client

13

was raising objections based on the fact that

14

some petitions filed in just a couple of volumes

15

contained the printing mistake 1505.

16

I also heard that the Board of Elections

17

had taken notice that some petitions filed in

18

just a couple of volumes contained the printing

19

error 1505.

20

And I also heard that on some of those

21

petitions, that the number one had been crossed

22

out and initialled.

23

Q

24 25 26

Following you learning this, did you take

any steps to correct the error? A

It's too late, no.

How could I?

I'm

sorry, no.

DEBORAH A. ROTHROCK, RPR

96 1 2

Direct - A. Gerson - by Petitioner Q

Did anyone on your behalf take any steps

3

with respect to the Board of Elections to correct the

4

error?

5

A

We filed responsive papers at the Board

6

of Elections in this -- in these court proceedings,

7

but other than that, no, absolutely not.

8 9

Q

Did there come a time that you or anyone

on behalf of your champagne filed an amended cover

10

sheet?

11

A

Yes.

Those were among the papers that we Page 29

12 13 14

080609 Gleason v Gerson filed at the Board of Elections. Q

When did you first have a conversation

regarding an amended cover sheet, if any?

15

MR. MANDELKER:

Objection, your Honor.

16

We went over all of this when Mr. Gerson

17

testified two days ago on my direct case and Mr.

18

Dowd cross-examined him.

19

THE COURT:

I am going to overrule the

20

objection.

I am informing you, Mr. Dowd, that I

21

am rapidly reaching the belief that we have

22

adduced just about all of the useful testimony as

23

we can from the witness based on the proceeding

24

that we had on August 4th and the hour of

25

testimony that we have had this morning.

26

would think it, that you might be drawing this

And I

DEBORAH A. ROTHROCK, RPR

97 1 2

Direct - A. Gerson - by Petitioner direct examination to some kind of a conclusion.

3 4 5 6

MR. DOWD: Q

Thank you, sir.

What was the first conversation you had

regarding amending cover sheets, do you recall? A

I recall a conversation with Mr. Dudley

7

Gaffin, who was acting counsel to the campaign, on a

8

Pro Bono, non-enumerated basis.

9

MR. MANDELKER:

Objection to any of the

10

details of the conversation.

11

THE COURT:

12

Q

Sustained.

And following your conversation with Mr. Page 30

080609 Gleason v Gerson 13

Gaffin, did you have conversations with anyone else

14

from your campaign regarding amending the cover

15

sheets?

16

A

Yes.

17

Q

Who?

18

A

Our campaign manager Mr. David Hartshorn,

19

our petitioner coordinator Mr. Ray Klein, several of

20

the club leaders who were supporting the campaign, my

21

mother Sophie Gerson, secretary to the campaign, and

22

probably other individuals as well.

23 24

Q

you do anything to correct --withdrawn.

25 26

And following those conversations, did

Following those conversations, did you respond in any way to the Board of Elections letters

DEBORAH A. ROTHROCK, RPR

98 1 2 3 4

Direct - A. Gerson - by Petitioner to you? A

Yes, we filed the appropriate papers in

response, including the amended cover sheets.

5

Q

Did you do anything else?

6

A

No.

7

Q

Did you authorizes Mr. Gaffin to file

8

amended cover sheets?

9

A

Yes.

10

Q

Did you discuss any of those problems

11 12

with Mr. David Reck? A

Yes. Page 31

13

Q

080609 Gleason v Gerson And what did you tell him?

14

A

Essentially the same thing I told

15

everyone else, that Mr. Gaffin was going to file

16

amended cover sheets and we believe that that would

17

solve the problem.

18

objections were made to particular volumes, but I also

19

told him that we were confident because even if you

20

entirely eliminated those two volumes, we had more

21

than enough signatures that were not in question to

22

qualify for the ballot.

23

each of the people that with whom I had the

24

conversations that we had-- even without those two

25

volumes, more signatures than the other volumes than

26

any of the other candidates filed, that is what I

I told him and others, that the

In fact, I made the point to

DEBORAH A. ROTHROCK, RPR

99 1 2 3

Direct - A. Gerson - by Petitioner discussed with Mr. Reck. R. DOWD:

I would like to mark

4

Petitioner's No. 2.

5

THE COURT:

6

MR. MANDELKER:

7

THE COURT:

8

MR. MANDELKER:

9

It appears to be a printout of some sort

10 11 12 13

Any objection? Yes.

What? Hearsay, first of all.

of a Blog or a newspaper article. THE COURT:

And it is --

Where are we going with

this, sir? MR. DOWD: Well, there's statement of Page 32

080609 Gleason v Gerson 14

the candidate about Mr. Gerson inconsistent with

15

his testimony.

16 17

THE COURT: authenticating this.

18

MR. DOWD:

19

THE COURT:

20

MR. DOWD:

You're asking it be admitted

I had not made that

application.

23

THE COURT:

24

Petitioner's No. 2.

25 26

I have not even tried.

into evidence, that would constitute attempted.

21 22

There's no way of

We have marked this as

If in fact you're seeking to move this into evidence it will not be admitted into

DEBORAH A. ROTHROCK, RPR

100 1

Direct - A. Gerson - by Petitioner

2

evidence, because it is a writing by someone

3

named Julie Shapiro who has to authenticate this.

4

MR. DOWD:

5

THE COURT:

I don't -If you wish to question the

6

witness as to quotes that might appear in this

7

article as to whether they are his or not, then

8

you may do so.

9

that this being your witness on direct

However, again, I would think it

10

examination you would have to have him declared

11

hostile first in order to do that.

12

Q

13

Well, if I may, your Honor, as I move to

have the witness declared hostile? Page 33

14

080609 Gleason v Gerson THE COURT: Denied.

15

MR. DOWD:

16

THE COURT:

I think that -Sir, he's your witness,

17

you've called him on direct and now you're trying

18

to impeach him.

19 20

There's a problem with that.

MR. DOWD:

Your Honor, the hostile

witness --

21

THE COURT:

There's been no indication

22

of hostility.

23

to your questions.

24

witness in terms of his overresponse to your

25

inquires.

26

The witness has freely responded

MR. DOWD:

Indeed I had to caution the

Your Honor, the legal test

DEBORAH A. ROTHROCK, RPR

101 1

Direct - A. Gerson - by Petitioner

2

for hostility is not his demeanor.

3

mean that he's taking a threatening tone.

4

THE COURT:

It does not

I am aware of the legal

5

test.

6

any reticences in terms of his response to your

7

inquire.

8 9

The legal test would be whether there is

There has been none. MR. DOWD:

No, sir, the legal test is

whether or not his interests are adverse as a

10

matter of law.

11

his petition which is adverse to his interest.

12

Here we are trying to invalidate

THE COURT:

You've placed yourself in an

13

unusual position of calling this man as your

14

witness to substantiate your case, if you will, Page 34

080609 Gleason v Gerson 15

as you have brought it in the context of this

16

particular matter.

17

impeach him within the same context.

18

allow that.

19

MR. DOWD:

20

further questions.

And now you're seeking to I can't

Thank you, your Honor, no

21

THE COURT:

22

MR. MANDELKER:

23

THE COURT:

24

Thank you very much.

25

We will take a five-minute break and

26

Any cross? No, sir.

The witness is excused.

then we will call the next witness.

DEBORAH A. ROTHROCK, RPR

102 1

Direct - A. Gerson - by Petitioner

2

(Witness exits the courtroom.)

3

(Recess taken.)

4

MR. MANDELKER:

5

THE COURT:

6

ALAN HANDELL, called as a witness, by

Alan Handell.

Raise your right hand.

7

Respondent, having been first duly sworn by the

8

Court, was examined and testified as follows:

9 10 11 12 13 14

THE WITNESS: THE COURT:

I do. State your name and address

for the record. THE WITNESS:

Alan C. Handell, 320 west

87th Street, New York, New York 10024. THE COURT:

Noted for the record that at

Page 35

15

080609 Gleason v Gerson the based on the stipulation of counsel this

16

witness is being taken out of order.

17

witness for the Respondent,

He is a

Mr. Mandelker.

18

Do I have such a stipulation Mr. Dowd?

19

MR. DOWD:

20

THE COURT:

21

MR. MANDELKER:

22

THE COURT:

23 24

Yes, sir. Mr. Mandelker? Yes, sir.

You may begin your direct

examination. MR. MANDELKER:

Could we mark this

25

document for identification.

26

THE COURT:

Is that a document that

DEBORAH A. ROTHROCK, RPR

103 1 2

Direct - A. Handell - by Petitioner appears in the file of the County Clerk?

3

MR. MANDELKER:

4

THE COURT:

5

MR. MANDELKER:

No.

What kind of document is it? It is an Affidavit that

6

this witness prepared.

7

it fairly and accurately states his testimony and

8

Mr. Dowd will cross-examine.

9

THE COURT:

10 11

I just want to ask him if

Based on the Affidavit.

MR. MANDELKER:

Based on whatever he

wants to do.

12

THE COURT:

13

(Whereupon, document is so marked

14 15

Mark it as Respondent's A.

Respondent's Exhibit A for identification.) THE COURT: You may begin your direct Page 36

080609 Gleason v Gerson 16

examination.

17

MR. MANDELKER:

18

DIRECT EXAMINATION

19

BY MR. MANDELKER:

20 21

MR. MANDELKER:

THE COURT:

23

MR. DOWD:

Is there any objection? I would like a foundation to

be laid.

25 26

It was marked for

identification.

22

24

Thank you.

THE COURT:

I will Voir dire the

document.

DEBORAH A. ROTHROCK, RPR

104 1 2

Direct - A. Handell - by Petitioner Mr. Handell, I am showing you a document

3

which has been marked as Respondent's A for

4

identification.

5

five paragraphs and your signature at the bottom.

6

Is that your signature?

It bears your name, contains

7

THE WITNESS:

8

THE COURT:

9 10

Yes. That was signed before

Vanessa Sevrino, S-E-V-R-I-N-O, a Notary Public of the State of New York.

11

THE WITNESS:

12

THE COURT:

13

Yes. And you remember signing

this document?

14

THE WITNESS:

15

THE COURT:

I do. Do you want to take a moment

Page 37

16

080609 Gleason v Gerson to look at the document?

17

THE WITNESS:

18

THE COURT:

19

I do. Did you read the document

before signed it?

20

THE WITNESS:

21

THE COURT:

22

I did. And these are your

statements?

23

THE WITNESS:

24

THE COURT:

25

They are. And they were made under

oath?

26

THE WITNESS:

They were.

DEBORAH A. ROTHROCK, RPR

105 1

Cross - A. Handell - by Petitioner

2 3

THE COURT: sir?

4

MR. DOWD:

5

THE COURT:

6

Mark the document into

(Whereupon, document is so marked as Respondent's Exhibit A in evidence.)

9 10

No objection.

evidence.

7 8

The document is in evidence

THE COURT:

Respondent's A now in the

possession of the witness.

11

(Handing.)

12

MR. MANDELKER:

13 14

May I question from

here? THE COURT:

15

DIRECT EXAMINATION

16

BY MR. MANDELKER:

I don't care.

Page 38

080609 Gleason v Gerson 17

Q

Mr. Handell, I show you copy of

18

Respondent's A in evidence and I ask you, do the

19

statements contained therein fairly and accurately

20

represent the events described in the document?

21

A

Yes.

22

MR. MANDELKER:

23

THE COURT:

24

CROSS-EXAMINATION

25

BY MR. DOWD:

26

Q

Your witness.

All right.

Good morning.

DEBORAH A. ROTHROCK, RPR

106 1

Cross - A. Handell - by Petitioner

2

A

Good morning.

3

Q

Do you know who prepared this document?

4

A

Yes.

5

Q

Who?

6

A

Dudley Gaffin.

7

Q

How do you know Mr. Gaffin?

8

A

I know Mr. Gaffin --

9 10

THE COURT:

Is that Mr. Gaffin seated in

the front row.

11

THE WITNESS:

12

THE COURT:

13

MR. GAFFIN:

14 15 16

Yes, it is. I ask you to step outside. Am I being called as a

witness? THE COURT:

I don't know and if you are,

I don't want you to hear the testimony. Page 39

17

080609 Gleason v Gerson That was a wild guess on my part.

18

Continue.

19

MR. DOWD:

Thank you.

20

Q

How do you know Mr. Gaffin?

21

A

I know him as a long-time lawyer in New

22

York Politics going back to Congressman Ted Weiss day.

23

I believe he was Congressman Weiss's attorney for many

24

years.

25

Q

Has he referred you business in the past?

26

A

No.

DEBORAH A. ROTHROCK, RPR

107 1 2 3 4 5 6 7 8 9 10

Cross - A. Handell - by Petitioner Q

What sort of business dealings have you

ever had with Mr. Gaffin? A

Only probably through the Ted Weiss

campaign incorrectly. Q

Have you had any other interactions with

him over the years? A

Just as a friend and social events

occasionally. Q

And did there come a time that you

11

learned of any connection between Mr. Gaffin and Alan

12

Gerson?

13 14

A

Yes.

He called me and told me he was

helping Alan fight to stay on the ballot.

15

Q

Do you recall around when this was?

16

A

A couple of weeks ago.

17

Q

And what did Mr. Gaffin tell you? Page 40

080609 Gleason v Gerson 18

A

He asked if I would --

19

MR. MANDELKER:

20

MR. DOWD:

21

He's here to testify, Mr.

Gaffin.

22 23

Objection hearsay.

THE COURT:

That is not the issue-- read

that back.

24

(Requested portion read.)

25

THE COURT:

26

hearsay.

Overruled.

It is not

Overruled.

DEBORAH A. ROTHROCK, RPR

108 1 2 3

Cross - A. Handell - by Petitioner A

He told me he was helping Mr. Gerson in

his fight to stay on the ballot.

4

Q

Anything else?

5

A

And that he would appreciate it if I

6

would sign an Affidavit as to what happened with the

7

miss-printed address on Alan's petitions.

8 9 10

Q

And prior to that phone call a couple of

weeks ago, you had no other conversations with Mr. Gaffin?

11

A

No.

12

Q

When did you first hear of the address

13 14

1505 LaGuardia Place? A

I heard of that -- I can't remember --I

15

don't have all of my records.

16

right when the petitions were ordered and we typeset

17

the address and someone thought it was wrong. Page 41

I -- I think it was

It was

18

080609 Gleason v Gerson brought out that the address needed to be corrected.

19

Q

Do you recall who saw it was wrong?

20

A

I don't recall which individual.

There

21

are a lot of people in the office doing petitions, I

22

don't recall which specific person saw the error.

23 24

Q

Do you send out a proof for campaigns to

proofread?

25

A

I did -- we did.

26

Q

Did you do that in this case?

DEBORAH A. ROTHROCK, RPR

109 1

Cross - A. Handell - by Petitioner

2

A

Yes, we did.

3

Q

Who signed the proof?

4

A

I would not know which specific person

5

signed the proof.

6

Q

7

here today?

8

A

I do.

9

Q

May I see it?

10

A

Yes.

11 12 13 14 15 16

Do you have a copy of the proof with you

(Handing.) THE COURT:

Let's have that marked as

Respondent's B. (Whereupon, document is so marked Respondent's Exhibit B for identification.) THE COURT:

Any objection to

17

Respondent's B being admitted into evidence.

18

MR. MANDELKER: I have not seen it. Page 42

080609 Gleason v Gerson 19

MR. DOWD:

20

THE COURT:

21

MR. MANDELKER:

22

THE COURT:

23

(Whereupon, document is so marked as

24

Take a look at it. No objection.

Mark that into evidence.

Respondent's Exhibit B in evidence.)

25 26

May he reinspect it.

THE COURT:

Respondent's B in evidence

now in the possession of counsel for the

DEBORAH A. ROTHROCK, RPR

110 1 2

Cross - A. Handell - by Petitioner petitioner.

3 4

MR. DOWD:

back to the evidence.

5 6

THE COURT:

9 10

Respondent's B now in

possession of the witness.

7 8

I am handing Respondent's B

(Handing.) Q

Sir, could you tell me what your office's

practice is when you received a -- that is a corrected proof; is that right?

11

A

Yes.

12

Q

What is your office practice when you

13 14

receive a corrected proof? A

We make the corrections as indicated on

15

the proof and either show the customer a final proof

16

or go ahead and print the petitions if it is a simple

17

correction.

18

people, they just trust me to do the correction and

Sometimes speed is so important to

Page 43

080609 Gleason v Gerson 19

print.

20

Q

21

proofs?

22 23

Did your office send out any other

A

Not that I know -- not that I see here,

no, sir.

24

Q

25

stand.

26

A

Now, you have a folder on the witness

Yes, I did.

DEBORAH A. ROTHROCK, RPR

111 1

Cross - A. Handell - by Petitioner

2 3

Q

Did you bring any other documents with

you here today?

4

A

Yes, I brought various job tickets for

5

the different Gerson petitions that we printed for

6

different clubs.

7

wanted to try to recollect how it was done.

8 9

Q

When I prepared to come here I

Do you have one there for the Truman

Club?

10

A

I do.

11

Q

May I see it?

12

A

Yes.

13 14 15 16 17

(Handing.) THE COURT:

Let's have that marked as

Respondent's C for identification. (Whereupon, document is so marked Respondent's Exhibit C for identification.)

18

THE COURT:

Hand that to counsel.

19

(Handing.) Page 44

080609 Gleason v Gerson 20

MR. DOWD:

Thank you.

21

MR. MANDELKER:

22

(Pausing.)

23

THE COURT:

24

MR. MANDELKER:

25

THE COURT:

26

MR. DOWD:

Thank you.

Is there an objection? No, sir.

Mr. Dowd? No, your Honor.

DEBORAH A. ROTHROCK, RPR

112 1

Cross - A. Handell - by Petitioner

2 3

THE COURT:

that into evidence as Respondent's C.

4 5

(Whereupon, document is so marked as Respondent's Exhibit #C in evidence.)

6 7

Madam Reporter please mark

MR. DOWD:

May I describe it for the

record.

8

THE COURT:

9

to describe it.

10

evidence first.

Why don't we ask the witness

Why don't we have it marked into

11

MR. DOWD:

12

THE COURT:

Yes, sir. Is it a number of documents,

13

a number of pages.

14

MR. DOWD:

15

THE COURT:

16

Madam Reporter count the number of

17

Yes, sir. Why don't we staple it too.

pages.

18

(Pausing.)

19

THE COURT:

Twenty pages plus the

Page 45

20

080609 Gleason v Gerson envelope so noted for the record.

21

Respondent's C, 20 pages and an envelope

22

is now in the possession of the witness.

23

proceed with your cross-examination Mr. Dowd.

24

(Handing.)

25

MR. DOWD:

26

May I sample it.

You may

Thank you.

DEBORAH A. ROTHROCK, RPR

113 1

Cross - A. Handell - by Petitioner

2

THE COURT:

I will take care of the

3

staple process at the conclusion of this

4

proceeding.

5

MR. DOWD:

6

THE COURT:

7

MR. DOWD:

8

(Pausing.)

9

THE COURT:

May I inspect? You may inspect, sir. Thank you.

Off the record.

10

(Off-the-record discussion).

11

THE COURT:

12

You may

proceed.

13

Continued

14

CROSS-EXAMINATION

15

BY MR. DOWD:

16

Let's continue.

Q

I am holding Respondent's C, it is not in

17

front of you now, could you just generally tell me

18

what this is?

19 20

A

Yes, you should be holding the entire job

ticket for that order, including any correspondence, Page 46

080609 Gleason v Gerson 21

any orders, changing corrections, proofs that went

22

into the making up of that petition for that

23

particular customer, including the original order, the

24

proofs, the corrections.

25 26

Q

So if the campaign sent you an address

correction it would be in this document I'm holding

DEBORAH A. ROTHROCK, RPR

114 1 2

Cross - A. Handell - by Petitioner here, Respondent's C; is that correct?

3

A

Not necessarily.

I can explain why.

4

Q

Please.

5

A

The system works that each candidate

6

takes care of his or her own block of copy.

So that

7

if that customer, the Truman Club, would be

8

responsible for the Truman Club candidates only, being

9

the leadership, maybe judicial delegates.

But that

10

the public officer holders that they put on the

11

petition would have read their own proof, as Alan

12

Gerson's people did on the job ticket, the Gerson only

13

petition.

14

is, we would pick that block up each time somebody

15

requested Gerson so as not to have to reset and

16

possibly make a mistake down the road.

17

Q

If that was approved, whatever that type

Okay.

18

So, if we saw in here -- withdrawn --

19

May I approach to ask a question?

20

THE COURT:

Yes.

Page 47

21

Q

080609 Gleason v Gerson I would like to ask you, Mr. Handell, we

22

see at the bottom of the first loose page of

23

Respondent's C a notation P63500 and then G and a

24

blank.

25

A

26

What does that mean? That means this should be petition order

63, it manages the job number given to it that was

DEBORAH A. ROTHROCK, RPR

115 1

Cross - A. Handell - by Petitioner

2

written in the logbook when it came in, it should have

3

been for 500 sheets and the paper color is the G, G

4

for green paper.

5

we make these petitions up for printing we use those

6

numbers on the plate order P63500 green.

7

they're printed and packed they could be slotted to

8

the right people.

9

Q

So that when we make these -- when

So when

Now, on the petition order jacket which

10

is the envelope in which these 20 loose pages are

11

found, it says customer Harry S. Truman --

12

MR. MANDELKER:

13

Excuse me.

May we

approach?

14

THE COURT:

15

(Off-the-record discussion).

16

THE COURT:

17

You may proceed.

18

Q

Off the record.

All right.

Continue.

Now, we are looking at Respondent's C,

19

the petition order jacket, which is the envelope in

20

which the pages are found, and we see customer "Harry

21

S. Truman Dems;" is that correct? Page 48

080609 Gleason v Gerson 22

A

Yes.

23

Q

Is says "Responsible agent David

24

Weinberg?"

25

A

It should be Weinberger.

26

Q

Correct.

DEBORAH A. ROTHROCK, RPR

116 1

Cross - A. Handell - by Petitioner

2

And that's for your print shop, the

3 4

customer who ordered this set of petitions? A

That should be; or the person someone

5

told me to put down as the person to contact if I have

6

a question about it or where to send the proof to, his

7

or her -- here is an e-mail address to send the proof

8

to, to the club itself, right.

9

for David and I have an e-mail address for the club.

10

I have a phone number

That is where I would send the proof to.

11

Q

Okay.

12

A

This is the order that they put in.

13 14

I

could explain what the circles mean. Q

15

Yes, if you could explain the system. THE COURT:

I am going to ask you to

16

respond to questions, not offer your own.

17

as I have been indicating all morning, this is

18

not speech making forum.

19

here.

20 21

THE WITNESS: Q

Again,

Just respond to queries

Yes.

And these notations we see on the upper Page 49

22

080609 Gleason v Gerson left hand side, could you very briefly explain what

23

that means?

24

A

Right.

25 26

So, this club ordered a petition, these are my different codes.

"Z" means, Z10 would come out

DEBORAH A. ROTHROCK, RPR

117 1

Cross - A. Handell - by Petitioner

2

to be a party position District leader code, 64

3

Assembly District Part A.

4 5

And anything that is written and circled means we'll typeset that for the first time.

6

So on this petition, we set up for the

7

Truman Club on this order, Weinberger, Bekritsky, the

8

female, County Committee box, Silver for the delegates

9

and Weinberger slate for the alternate delegates,

10

those were the new copy that only came in from this

11

club.

12

that we had already set, because there's no circle we

13

would not reset it.

14

Borough President and Alan Gerson for City Counsel.

15

That is what this order is for.

16

were not typeset, were picked up, as I explained

17

before, as blocks that were already set and proofread

18

by Thompson, Stringer and Gerson.

19

We added to that petition three other things

Q

Thompson for Mayor, Stringer for

And the last three

When we look at Page 2 of Respondent's C

20

and you see there 1505 LaGuardia Place; is that

21

correct?

22

A

That's correct. Page 50

080609 Gleason v Gerson 23 24

Q

And there's no correction next to that;

is that correct?

25

A

That's correct.

26

Q

And we look on Page 4 of Respondent's C

DEBORAH A. ROTHROCK, RPR

118 1

Cross - A. Handell - by Petitioner

2

and we see 1505 LaGuardia Place and there's no

3

correction next to that, is there?

4

A

Not there on that proof, no.

5

THE COURT:

6

MR. DOWD:

7

(Handing.)

8 9

Q

Thank you. Thank you.

Now, moving to your Affidavit

Respondent's A in evidence, Paragraph 4, it says "They

10

did not order the corrected petitions."

11

What did you mean by that?

12

A

I couldn't find in my records that that

13

petition for the Truman Club was reprinted with the

14

right address like the other clubs that we did.

15

Q

I did not hear what you said.

16

A

I could not find in my records, when I

17

went back, because of all the people asked me to

18

reconstruct the printing of all of the petitions for

19

Gerson, I could not find the reprint with the correct

20

address.

21

Q

So --

22

A

For the Truman Club. Page 51

I found it for all

23

080609 Gleason v Gerson the other clubs but I could not find it for the Truman

24

Club, we missed one, we didn't correct that address.

25 26

Q

So, when you say they did not order the

corrected petitions.

You mean the Truman Club did not

DEBORAH A. ROTHROCK, RPR

119 1 2

Cross - A. Handell - by Petitioner order corrected petitions you mean?

3

A

Yes, right.

4

Q

Now, in Paragraph 4, you say the persons

5

responsible for distributing the blank petition sheets

6

gave some signatures, gathered petition sheets with

7

the correct address and some were given sheets with

8

the incorrect address; is that correct?

9

You say you have been informed.

10 11

A

I've been informed so I don't know for a

fact.

12

MR. DOWD:

13

THE COURT:

14

MR. MANDELKER:

15

THE COURT:

16 17 18

No further questions. Any re-direct? No, sir.

The witness is excused.

Thank you so much, sir. We will take a two-minute recess and call your next witness.

19

You may step down.

20

(Witness exits the courtroom.)

21

(Recess.)

22

THE COURT:

23

Would you raises your right

hand, sir. Page 52

080609 Gleason v Gerson 24

DAVID RECK, a witness called on behalf

25

of the Petitioner, having been first duly sworn

26

by the Clerk, was examined and testified under

DEBORAH A. ROTHROCK, RPR

120 1 2

Direct - D. Reck - by Petitioner oath as follows:

3 4

THE COURT:

State your name and address

for the record.

5

THE WITNESS:

David Bruce Reck, R-E-C-K,

6

I live 512 Greenwich Street,

7

10013.

New York, New York

8

THE COURT:

9

You may begin your direct examination,

10

Witness for petitioner.

sir.

11

DIRECT EXAMINATION

12

BY MR. DOWD:

13

MR. DOWD:

Thank you, sir.

14

Q

Good morning.

15

A

Good morning.

16

Q

Mr. Reck, did there come a time that you

17

were involved in the process of preparing Alan

18

Gerson's designating petitions?

19

A

Not precisely.

I prepared -- I was

20

responsible for collecting signatures and I prepared

21

and bound petitions for the 66th Assembly District

22

Part B, which is my district, I'm a Democratic

23

District Leader, and those petitions were for myself Page 53

24

080609 Gleason v Gerson and Noelle Jefferson and they also included Alan

25

Gerson.

26

in the binding of other petitions that I was not in

And those I was responsible for.

I assisted

DEBORAH A. ROTHROCK, RPR

121 1 2 3 4 5

Direct - D. Reck - by Petitioner the least bit responsible for. Q

Did there come a time that you received a

copy of the petition that was to be circulated? A

Absolutely.

I received I would say about

6

seven or eight different kinds of petitions from the

7

printer that included various combinations of district

8

leader and candidates for citywide offices and all of

9

them included Alan Gerson.

10 11 12 13

Q

And do you recall when it was that you

received Alan Gerson's sheets? A

I don't recall the precise date but it

was the day after petitioning started.

14

Q

Did you review the petitions?

15

A

Absolutely, I also do.

16

Q

Did you see any errors in the petitions?

17

A

No.

18

Q

Did there come a time that you heard of

19 20 21

the address 1505 LaGuardia Place? A

I'm not familiar

with the address.

22

Q

23

any errors?

24

Heard of the address?

Did there come a time that you learned of

THE COURT: Let me caution you. Page 54

080609 Gleason v Gerson 25 26

You're being the queries are being posed to you.

You are not to pose queries to counsel.

DEBORAH A. ROTHROCK, RPR

122 1 2

Direct - D. Reck - by Petitioner If you don't know the answer say, I don't know.

3

THE WITNESS:

4

THE COURT:

5

Read counsel's question back.

6

(Question read.)

7

THE WITNESS:

8

idea what that address is for.

9

THE COURT:

10

Repose the question.

My response is, I have no

Thank you.

You may proceed.

11

Continued

12

DIRECT EXAMINATION:

13

Fine.

Q

Did you there come a time that you

14

learned of any typographical errors in any of Alan

15

Gerson's sheets?

16 17

A

I personally have not seen anything to do

with any of it.

I heard of it by rumor only.

18

Q

When did you hear of it by error?

19

A

It was being discussed in the Alan Gerson

20

campaign office very recently here.

21

Q

Who did you hear it from?

22

A

Just people in the office.

23

Q

Did you ever discuss it with the

24

candidate? Page 55

25 26

A

080609 Gleason v Gerson I believe that Alan noted that there was

some problem with some petitions.

I have never seen

DEBORAH A. ROTHROCK, RPR

123 1 2

Direct - D. Reck - by Petitioner them.

3

Q

When did you have this conversation?

4

A

Very recently here, within the last week

5 6 7

or two. Q

Did you have any interactions with

Astoria Graphics?

8

A

This campaign season.

9

Q

Yes.

10

A

No, none whatsoever.

11

Q

After you proofread your petitions, did

12

you sign off on them?

13

A

Sign off on them?

14

Q

Yes.

15

prior to --

16

A

Did you receive a printer's proof

No, that was not part of my

17

responsibility whatsoever.

18

the printing of the petitions, other than to provide

19

my correct information for myself and for Noelle

20

Jefferson.

21 22 23

Q

I had nothing to do with

And after you received the sheets, did

you go out and collect signatures? A

Yes, absolutely.

Noelle Jefferson and I

24

collected approximately 1,200 signatures and then I

25

assisted Avi Turkel, who is another District Leader Page 56

080609 Gleason v Gerson 26

candidate, and he submitted approximately 970

DEBORAH A. ROTHROCK, RPR

124 1

Direct - D. Reck - by Petitioner

2

signatures.

3

those petitions, I helped him bind them and submit

4

them to the Board of Elections.

5 6 7

Q

And although I was not responsible for

Can you explain what you mean when you

say you bind petitions? A

There's simply --there's a very weird two

8

prong clip that I think you find on a lot of legal

9

things that petitions are punched for that, you put

10

piece of cardboard on the back, you arrange petitions,

11

you put the piece of cardboard on the top, you put the

12

volume label that you obtained from the Board of

13

Elections on the front page of it, and you number all

14

of the sheets, and then you count the sheets and add

15

up the petition signatures on them.

16

of that.

17

various parts of it, but I did various parts of it on

18

the number of volumes I was responsible for.

19 20 21 22

Q

I did not do all

There were like four or five people doing

And in that process, did you review any

of the sheets for errors? A

A few, yes, the ones I was responsible

for, yes.

23

Q

What types of errors?

24

A

Any kind of error from the witness

25

signatures, there could be an error on the date that Page 57

26

080609 Gleason v Gerson needs to be corrected and you need to track down the

DEBORAH A. ROTHROCK, RPR

125 1

Direct - D. Reck - by Petitioner

2

person who carried the petition.

And many of the

3

petitions, the way that we do that, we require the

4

person who witnessed the petition to sign it in the

5

presence of someone such as myself so that we could

6

make the corrections right then and there so that

7

they're no errors.

8

Q

Did you make any of those corrections?

9

A

I only made correction-- I pointed out

10

corrections to a couple of people.

But seeing a large

11

volume of them were done by myself I did corrections

12

on my own.

13

sheets not done by me and I must get the person who

14

carried by the petitions.

I am not entitled to make corrections on

15

Q

Who did you have to make corrections?

16

A

What do you mean?

17

Q

You said you had a couple of other people

18 19

make corrections? A

People who carried petitions such as

20

myself and Noelle Jefferson.

You would have to show

21

me the petition sheets before I remember the people

22

who actually carried.

23

remember, seeing there were a tremendous number of

24

sheets.

25

corrections or which errors there were.

26

tremendous number of sheets. Page 58

And, quite frankly, I don't

I don't remember who all had to make There were a

080609 Gleason v Gerson

DEBORAH A. ROTHROCK, RPR

126 1

Direct - D. Reck - by Petitioner

2 3

Q

Do you remember having discussions with

Renee Abramowitz?

4

A

I have no idea who that person is.

5

Q

What about Edward Braunstein?

6

A

If they are not from the 66 Assembly Part

7

B, which these obviously were not, they were not my

8

responsibility and I had nothing to do with the people

9

who witnessed or carried.

And I made no correction on

10

any of them other than the ones I were responsible

11

for.

12

THE COURT:

13

the question, sir.

14

the question back.

15 16 17

Why don't we simply answer Strike the answer and read

(Question read.) A

This person is unknown to me and did not

carry in the 66 Part B.

18

THE COURT:

Thank you.

19

Q

What about Camden Ackerman?

20

A

This person is unknown to me and did not

21

carry in the 66 Part B.

22

THE COURT:

23

THE WITNESS:

Carry that means signature? Be a witness on the

24

petition.

25

carrying the petition.

26

That is term supplied if you are

THE COURT:

I am not familiar with what

Page 59

080609 Gleason v Gerson DEBORAH A. ROTHROCK, RPR

127 1 2

Direct - D. Reck - by Petitioner carrying means, but I appreciate the explanation.

3

MR. DOWD:

4

THE COURT:

5

Continued

6

DIRECT EXAMINATION:

May I? Yes.

7

Q

What about Jessica Loeser?

8

A

I have no idea who the person is.

9

She

did not carry in the 66 Part B.

10

MR. DOWD:

I would like to show the

11

witness, if I may, Respondent's B in evidence

12

from the earlier proceeding.

13

THE COURT:

14

MR. DOWD:

15

No, that would be from the

prior proceeding.

16

THE COURT:

17

MR. DOWD:

18

THE COURT:

19

Respondent's B of today?

From August 4th? Yes, sir. Respondent's B now in the

possession of the witness.

20

(Handing.)

21

MR. DOWD:

22

THE WITNESS:

23

petition cover sheet.

24

MR. DOWD:

25

Continued

26

DIRECT EXAMINATION:

May I see. This is what you what the

Yes, sir.

Page 60

080609 Gleason v Gerson DEBORAH A. ROTHROCK, RPR

128 1

Direct - D. Reck - by Petitioner

2

Q

And could you identify Respondent's B?

3

A

This is a petition cover sheet.

Eight

4

years ago when Alan ran for office I took the official

5

information and created a Microsoft Word Document that

6

produces this cover sheet, a legal cover sheet, and so

7

I was asked by Alan to prepare the cover sheet for him

8

again.

9

Q

When did he ask you to do that?

10

A

A couple of days before we submitted them

11

to The Board of Elections.

12

for him and several other people, including myself.

13

Q

14

candidates?

15

A

I prepared cover sheets

When you say other people, you mean other

Other candidates such as myself Noelle

16

Jefferson, Avi Turkel, and Linda Bellfair who are all

17

District Leader candidates in Alan Gerson's district.

18

Q

Now, were you paid by Alan Gerson?

19

A

Absolutely not.

20

Q

And so this document, Respondent's B, did

21

you prepare this?

22 23

A yes.

I entered the information on the sheet, I did not collect any of the petition --

24 25 26

THE COURT:

Sir.

Sir.

question. THE WITNESS:

Okay.

Page 61

Answer the

080609 Gleason v Gerson DEBORAH A. ROTHROCK, RPR

129 1 2

Direct - D. Reck - by Petitioner A

Preparation involves doing more than just

3

entering numbers.

4

entered the numbers on the computer program, that's

5

all I did.

6 7 8

That is all that I did.

THE COURT: Q

I just

Thank you.

Is that your, at the bottom of the page,

is that your signature?

9

A

Yes, that's correct.

10

Q

And it says candidate or agent?

11

A

That's correct.

12

Q

Now, did Alan Gerson's authorize you to

13 14

sign your name? A

Alan Gerson's authorized me to sign my

15

name to this piece of paper that is recorded to be

16

submitted by the petition.

17 18 19

Q

Do you recall when he authorized you to

do this? A

He asked me to do it -- as I previously

20

noted to you, and previously stated here, he asked me

21

a couple of days before this was to be submitted to

22

the Board of Elections.

23

Q

Now, prior to your preparing this, did

24

anyone make you aware of any printer's errors that had

25

occurred in the sheets?

26

A

I knew absolutely nothing about any

DEBORAH A. ROTHROCK, RPR Page 62

080609 Gleason v Gerson

130 1 2 3 4 5

Direct - D. Reck - by Petitioner printer's errors. Q

Did anyone inform you about any

alterations that had been made to petitions? A

Absolutely not.

6

THE COURT:

7

(Handing.

8 9 10

Q

Could I have that back? )

And on this petition cover sheet, you

claim 13 volumes; is that correct? A

I do not claim anything.

I was provided

11

this information and I was asked to put it on the

12

document and insert it into the computer program.

13

do not claim anything about the volume numbers.

14

Q

Who provided the information?

15

A

The Gerson campaign.

16

Q

And how was this done?

17

A

I got a phone call from someone at the

I

18

campaign office who read me the volume numbers for

19

Alan and number of volumes.

20

Q

And who was that person?

21

A

You know, I'm not certain, but I believe

22

that I got half of it from David Horshaun and half

23

from Ray Klein.

24

the two people who called me.

25

rush at the last minute.

26

Q

I'm not certain.

I think those were

It was done in a big

You did not see these volume

DEBORAH A. ROTHROCK, RPR Page 63

080609 Gleason v Gerson

131 1 2 3

Direct - D. Reck - by Petitioner identification numbers? A

I only saw the volume identifying numbers

4

for what I personally prepared.

5

that I did not work on -- in fact there are a number

6

of those volumes that I did not even lay eyes on.

7 8 9 10 11

Q

Any volume number

Can you, looking at that sleet, tell us

which one you laid eyes on? THE COURT:

Respondent's B back in the

possession of the witness. THE WITNESS:

If I may, I have a list in

12

my bag of exactly the petition numbers that I

13

have handled.

May I get that lift?

14

THE COURT:

15

(Pausing.)

16

THE COURT:

You may.

Let's mark that document as

17

Respondent's D -- actually Petitioner's 3 for

18

identification.

19 20

(Whereupon, document is so marked Petitioner's Exhibit #3 for identification.)

21

MR. MANDELKER:

22

THE COURT:

No objection.

The document is marked into

23

evidence as Petitioner's No. 3.

24

objection?

25

MR. DOWD:

26

THE COURT:

You have no

No. Give it to the reporter.

DEBORAH A. ROTHROCK, RPR Page 64

080609 Gleason v Gerson 132 1

Direct - D. Reck - by Petitioner

2

(Whereupon, document is so marked as

3

Petitioner's Exhibit #3 in evidence.)

4

THE COURT:

Noting for the record

5

Petitioner's No.3 is now in the possession of the

6

witness.

7

You may proceed Mr. Dowd.

8

MR. DOWD:

9 10 11

Thank you.

Continued DIRECT EXAMINATION. A

Looking at Respondent's B, which is the

12

cover sheet, and looking at Petitioner's 3, which are

13

your notes.

14

THE COURT:

I am giving him Respondent's

15

B of 8/4/09 and Petitioner's No. 3 of this date

16

are both in the possession of the witness now.

17 18 19 20 21

(Handing.) Q

Could you sinally read the volume numbers

that you have personal knowledge of? A

Okay. "The petitions from myself, which I was

22

personally responsible for and bound and submitted to

23

the Board of Elections is NY0900, which precedes all

24

of these 591, 590, 589, and 588.

25

the ones for Noelle Jefferson.

26

THE COURT:

Please.

Those also include

Please.

DEBORAH A. ROTHROCK, RPR

Sir.

Page 65

080609 Gleason v Gerson 133 1

Direct - D. Reck - by Petitioner

2

Q

The numbers only.

3

A

Those are the ones I --

4

THE COURT:

5

THE WITNESS:

6

THE WITNESS:

THE COURT: sufficient.

MR. DOWD: Continued

15

DIRECT EXAMINATION

18

Q

Sir.

Sir.

The response is

You may continue Mr. Dowd.

14

17

Yes, he asked me personal

knowledge.

13

16

You have not been queried

about.

11 12

Sir.

There were others around

THE COURT:

9 10

Sir.

here too, you have asked me about.

7 8

Sir.

Thank you.

After you prepared and signed

Respondent's B, can you tell me what you did with it? A

This was submitted to the Board of

19

Elections, you could see the stamp right here, the

20

time stamp right here.

21 22 23

Q

If I may, what did you do?

Just what did

you, do your role? A

I submitted it to the Board of Elections,

24

the time staple indicates what time I brought it down

25

to the Board of Elections and it was submitted it.

26

Q

You went personally to the Board of

DEBORAH A. ROTHROCK, RPR

Page 66

080609 Gleason v Gerson 134 1 2

Direct - D. Reck - by Petitioner Elections --

3

THE COURT:

4

question, sir.

5

You may continue.

6 7

He has answered your

Q

This document is time stamped 10:04 am on

July 16th?

8

A

If you say so, I believe that is correct.

9

Q

If you could please look at Respondent's

11

A

Okay.

12

Q

There's a timestamp on there, it says

10

B.

13

2009, July 16, 1004 am.

14

accurate?

15 16

A

To my recollection, yes, that seems to be

correct, yes.

17 18

Q

I would like to show the witness

Petitioner's 3 from the prior proceeding.

19

THE COURT:

20

(Handing.)

21

THE COURT:

22

Petitioner's 3 from 8/4/09

THE WITNESS:

24

26

Hand up the other documents.

now in the possession of the witness.

23

25

Does that appear to be

Yes.

Q

Have you ever seen this document before

A

No, sir I have not.

sir?

DEBORAH A. ROTHROCK, RPR

135 Page 67

080609 Gleason v Gerson 1 2

Direct - D. Reck - by Petitioner Q

Now, subsequent to --

3 4

THE COURT: document?

5

MR. DOWD:

6

THE COURT:

7

Yes, sir. Could I have the document

back.

8 9

Are you done with the

(Handing.) Q

Subsequent to you filing Respondent's B

10

in evidence on July 16, 10:04 AM, did you have any

11

subsequent interactions with Alan Gerson's campaign

12

regarding the designating petitions?

13

A

These designating petitions?

14

Q

Yes.

15

A

I'm not sure what you're asking.

16 17

I don't

think so, no. Q

Did you have any conversations with

18

anyone from the campaign about any concerns they had

19

with the designating petitions for Alan Gerson's?

20

A

Recently here there has been some

21

discussion about some kind of printer error.

22

I don't know that that is it, but this is the first

23

time I have ever actually seen any document that

24

relates to that.

25 26

Q

This --

When do you recall the first discussions

of printer errors coming up?

DEBORAH A. ROTHROCK, RPR

136 Page 68

080609 Gleason v Gerson 1

Direct - D. Reck - by Petitioner

2 3

A sir.

4 5 6

I believe I have already answered that

You asked me that question before.

I

have already answered it. Q

After you filed Respondent's B, when is

7

the first time you heard of a printer's error do you

8

recall?

9 10

A

Sir, I have already answered that

question very recently.

11

THE COURT:

12

THE WITNESS:

13

Mr. Reck. Very recently I found out

about this.

14

THE COURT:

Thank you.

15

Q

Do you recall the date at all?

16

A

No, I do not.

17

Q

And following you're being informed of

18

this printer's error, did you take any action to

19

correct the printer's error?

20

A

I had nothing to do with any of that.

21

Q

Did you have any subsequent interactions

22

with the Board of Elections regarding the Gerson

23

designating petition?

24

A

None whatsoever.

25

MR. DOWD:

26

THE COURT:

No further questions. Cross-examination.

DEBORAH A. ROTHROCK, RPR

137 Page 69

080609 Gleason v Gerson Direct - J. Loeser - by Petitioner

1 2

MR. MANDELKER:

3

THE COURT:

4

(Witness exits.)

5

THE COURT:

6

No cross.

The witness is excused.

We will take two-minute

break and then we will call the next witness.

7

(Recess taken.)

8

THE COURT:

9

MR. DOWD:

10

Call your next witness. I would like to call Jessica

Loeser.

11

JESSICA LOESER, called as a witness,

12

having been first duly sworn by the Court, was

13

examined and testified as follows:

14

THE WITNESS:

15

THE COURT:

16

THE WITNESS:

THE COURT:

MR. DOWD:

22

DIRECT EXAMINATION

23

BY MR. DOWD: Q

25 26

475 FDR

You may begin your Direct

Examination.

21

24

Jessica Loeser.

Drive, New York, New York 10002.

19 20

State your name and address

for the record.

17 18

I do a firm.

Thank you.

Good afternoon. Thank you for coming Ms. Loeser.

A

Good morning.

DEBORAH A. ROTHROCK, RPR

138 1

Direct - J. Loeser - by Petitioner Page 70

080609 Gleason v Gerson 2

Q

Did there come a time that you became

3

involved with Alan Gerson's efforts to get on to the

4

ballot in 2009?

5

A

I collected signatures for slate of

6

Democratic candidates on the lower eastside and any

7

statewide and Alan is on that sheet.

8

Q

Are you involved in a democratic club?

9

A

I am.

10

Q

What club is that?

11

A

The Harry S. Truman Democratic Club.

12

Q

What is your role?

13

A

I'm the president.

14

Q

When did you first see the sheets for

15

Alan Gerson's designating petition?

16

A

17

understand.

18

of candidates, is that it?

19

Could I get a clarifications?

Q

We're talking about his space on a slate

Let me show the witness.

20

THE COURT:

21

witness.

22

evidence?

25 26

Perhaps I should show the

Are you speaking of Petitioner's 3 in

23 24

I don't

MR. DOWD:

Yes, three from the previous

hearing. THE COURT:

I have it in my hand and now

it is in the possession of the witness.

DEBORAH A. ROTHROCK, RPR

139 1

Direct - J. Loeser - by Petitioner Page 71

080609 Gleason v Gerson (Handing.)

2 3 4

Q

Ms. Loeser, I would like to refer you to

Petitioner's 3 in evidence.

5

A

Uh-huh.

6

Q

Could you identify --let me ask you to

7

turn to eight pages from the end of the document --

8

seven.

9

page.

It says sheet number five at the bottom of the

10

A

Okay.

11

Q

And sheet number five, that photocopy

12

page is preceded by two other pages?

13

A

Uh-huh.

14

Q

Are those part of the same designating

15

petition sheets?

16

A

Yes.

17

Q

And whose signature is on sheet number

18

five?

19

A

Mine is.

20

Q

When did you first see this document?

21

A

The first day of petitioning is -- may I

22

consult the calendar?

23

first day of petitions.

24

Q

It was the night before the

Absolutely --

25

THE COURT:

26

THE WITNESS:

What are we doing here. Finding the date.

DEBORAH A. ROTHROCK, RPR

140 1

Direct - J. Loeser - by Petitioner

2

THE COURT: Put it up over here. Page 72

I

080609 Gleason v Gerson 3

really don't want you using that.

4

THE WITNESS:

5

THE COURT:

6 7

Q

10 11

Now ask the question.

Do you recall when you first saw this

designated petition?

8 9

Yes sure.

A

The night before the first day of

petitioning, that Monday night, I don't recall the date. Q

12

Do we have the Political Calendar? THE COURT:

The document that you're

13

speaking of is Petitioner's No.1 in evidence of

14

this date now in the possession of the witness.

15

(Handing.)

16

Q

June 9th, the second entry there.

17

A

Yes, I saw June 8th.

18

Q

Thank you.

19 20

And you see on the second, the photo copy page preceding sheet number five.

21

A

Uh-huh.

22

Q

Next to on the left-hand side we have

23

Alan J. Gerson's name?

24

A

Yes.

25

Q

And public offices.

26

places of residence.

And next to that

What do you see there?

DEBORAH A. ROTHROCK, RPR

141 1 2

Direct - J. Loeser - by Petitioner A

I see my initials with a scratch out. Page 73

3

Q

080609 Gleason v Gerson When did you make that scratch out?

4

MR. MANDELKER:

Objection.

5

Your Honor, may I just make --this is

6

the motion in limine and I'll make it for the

7

record.

8 9

MR. DOWD:

Not in the presence of the

witness, your Honor.

10

THE WITNESS:

11

THE COURT:

I could step out. I will ask the witness to

12

step down for a moment:

13

edge of the jury box.

14

MR. DOWD:

15

say, your Honor.

16

your Honor.

You could sit at the

She'll hear everything we The acoustics are great here,

17

THE COURT:

18

(Whereupon, a bench conference took

19

That's great.

Step up.

place between counsel and the Court.)

20 21

THE COURT:

The motion in limine was

22

made to preclude further testimony with respect

23

to the witness, with respect to fraud.

24

motion was based on allegations that counsel was

25

moving forward in violation of the Rules of the

26

Court, with respect to the conduct of Election

The

DEBORAH A. ROTHROCK, RPR

142 1

Direct - J. Loeser - by Petitioner

2

Law hearings.

The Referee found that offer of

3

proof was sufficient to meet the Court's rules Page 74

080609 Gleason v Gerson 4

and the motion in limine was denied.

5

MR. MANDELKER:

6

THE COURT:

7

Thank you.

Madam, you may take the

stand again.

8

(Witness resumes the stand.)

9

THE COURT:

10

MR. DOWD:

11

THE COURT:

12

You may proceed Mr. Dowd. Was there a question pending? Read the last question back.

(Question read.)

13

THE COURT:

14

A

15

exact date.

16

If you recall.

Yeah, I'm trying to-- I don't recall the

THE COURT:

Give an approximation.

17

Answer to the best of your ability.

18

A

19

the bottom.

20

Q

Probably around July 7th when I signed

Now, do you recall whether -- look at

21

sheet number five, where you see the statement of

22

witness?

23

A

Uh-huh.

24

Q

And your name is printed there; is that

25 26

correct? A

Yes.

DEBORAH A. ROTHROCK, RPR

143 1

Direct - J. Loeser - by Petitioner

2

Q

And did you print that in there?

3

A

I did. Page 75

4 5

080609 Gleason v Gerson Then it says there's also handwritings

Q

475 FDR Drive, is that your print?

6

A

It is.

7

Q

And below that we see July 7th.

8

You

wrote that in there?

9

A

I did.

10

Q

And you see on the right-hand side, some

11

handwritten notations.

12

to the witness.

I am going to point these out

13

A

Yes.

14

Q

There and there.

15

A

Yes.

16

Q

Could you tell me what those are?

17

A

They are my initials.

18

THE COURT:

Note which lines we're

19

speaking to, sir.

20

Q

I can't see on my copy.

21

A

They're my initials.

22

are asking?

23 24

MR. MANDELKER:

Is that what you

It appears to be nine

and 15.

25

MR. DOWD:

Yes, Line 9 through 15.

26

MR. MANDELKER:

Nine and 15, not

DEBORAH A. ROTHROCK, RPR

144 1 2

Direct - J. Loeser - by Petitioner through.

3

THE COURT:

So stipulated.

4

MR. MANDELKER: Yes, sir. Page 76

080609 Gleason v Gerson 5 6 7 8

MR. DOWD: Q

Yes, sir.

Now, why did you place your initials in

those places? A

It's a habit that after I finished a

9

sheet and I am not going to collect anymore and I am

10

going to sign the bottom, I make a cross out so that

11

there could be no more signatures collected on that

12

sheet.

13

Q

14 15 16 17 18

It is your habit to sign the statement of

witness and then make the initial changes? A

No.

First I cross out the blank spaces

and then I sign the bottom. Q

Now, moving, up to the page preceding,

go back to Alan Gerson's name appearing?

19

A

Yes.

20

Q

And there's a your initial change is next

21

to the 505 LaGuardia Place, correct?

22

A

Uh-huh.

23

Q

Why did you place your initials there?

24

A

Because there's a cross out.

25

Q

Who made the cross out?

26

A

I did.

DEBORAH A. ROTHROCK, RPR

145 1

Direct - J. Loeser - by Petitioner

2

Q

When did you make it?

3

A

Probably on or around July 7th as I

4

stated before. Page 77

5 6

080609 Gleason v Gerson Did anyone point out to you -- did anyone

Q

discuss with you where Alan Gerson resided?

7

A

It is a very broad question.

8

THE COURT:

9

THE WITNESS:

Madam. Yes.

10

Q

And when was that?

11

A

From the time that I saw the petitions,

12

the night before, we went out to collect the

13

signatures, through right now.

14 15

Q

And did you discuss the mistake with

anyone?

16

A

Yes.

17

Q

Who did you discuss it with?

18

A

I discussed it with my fellow volunteers,

19

I discussed it with people I was collecting signatures

20

from.

21 22

It was a known topic of conversation. Q

Did you discuss it with anyone from Alan

Gerson campaign?

23

A

No.

24

Q

Did you receive instructions from anyone

25 26

to change Alan Gerson's address? A

No.

DEBORAH A. ROTHROCK, RPR

146 1 2

Direct - J. Loeser - by Petitioner Q

Did you have any conversations with Mr.

3

David Weinberger about the error in Alan Gerson's

4

address?

5

A

Yes. Page 78

080609 Gleason v Gerson 6

Q

When?

7

A

The night before the petitions went out.

8

Q

Now did -- were you informed that

9

withdrawn.

10

Did you have any interactions with Mr.

11

Handell of Handell Graphics with reference to the

12

printing of these sheets?

13

A

I did not.

14

Q

Did you have any involvement in ordering

15

these sheets from the printer?

16

A

No.

17

Q

Did your club order corrected sheets from

18

Mr. Handell?

19

A

I don't know the answer.

20

Q

Did you change the address of Mr. Gerson

21

after this -- the person signed the petition?

22

A

Yes.

23

Q

What is your appointment?

24

A

I'm an attorney.

25

Q

And do you have experience in election

26

law?

DEBORAH A. ROTHROCK, RPR

147 1

Direct - J. Loeser - by Petitioner

2

A

Some.

3

Q

What sort of experience?

4

A

I've been as a volunteer doing this for a

5

number of years and I've assisted candidates in Page 79

6

080609 Gleason v Gerson different offices for different races, none this year,

7

none on this petition.

8 9

Q

Now, in connection with collecting

signatures were you paid?

10

A

No.

11

Q

Did you have any employment related to

12

collecting these petitions?

13

A

No.

14

Q

Where are you currently employed?

15

A

I'm sorry?

16

Q

Where are you currently employed?

17

A

I'm currently employed at the law firm of

18 19 20 21 22 23

Akerman S. Enterfitt, 335 Madison Avenue. Q

And you're attorney registered to

practice in the State of New York? A

I am. MR. DOWD:

May I mark for identification

Petitioner's 4?

24

THE COURT:

25

MR. DOWD:

26

THE COURT:

For identification. Yes, sir. What is Petitioner's 4.

DEBORAH A. ROTHROCK, RPR

148 1

Direct - J. Loeser - by Petitioner

2

(Handing).

3

MR. MANDELKER:

4

THE COURT:

5

(Off-the-record discussion).

6

THE COURT: On the record. Page 80

May we approach.

Yes.

080609 Gleason v Gerson 7

Ms. Loeser, are you an attorney?

You've

8

indicated you're a practicing attorney in this

9

state?

10

THE WITNESS:

11

THE COURT:

12 13

Yes. Are you current in your

registration? THE WITNESS:

I -- I don't know because

14

I'm due in the next week so I still have to

15

finish my -- I don't know.

16

THE COURT:

17

THE WITNESS:

18

THE COURT:

19

What is your birth date. June 2nd. Did you register within

30 days of your birthday?

20

THE WITNESS:

21

THE COURT:

22

THE WITNESS:

23

THE COURT:

24

Appellate Division?

I got a waiver. You got a waiver. Yes.

25

THE WITNESS:

26

THE COURT:

That was issued by the

Yes. And how much of a waiver did

DEBORAH A. ROTHROCK, RPR

149 1 2

Direct - J. Loeser - by Petitioner they give you?

3

THE WITNESS:

4

THE COURT:

Two months. So you're not due to

5

reregister until sometime in September, is that

6

what you're saying? Page 81

7

080609 Gleason v Gerson THE WITNESS: Yes.

8

THE COURT:

9

And you will timely

register?

10

THE WITNESS:

11

THE COURT:

12

Yes, absolutely. I think that revolves the

issue.

13

MR. MANDELKER:

14

THE COURT:

Thank you, your Honor.

And you would so state under

15

oath, as an attorney, under the penalty of

16

perjury, that you did indeed receive that waiver?

17

THE WITNESS:

18

THE COURT:

19 20

Q

Yes.

Yes.

Thank you.

Do you go by the name of Jessica Tara

Loeser?

21

A

It is my full legal name.

22

Q

And do you work for the New York State

23

Assembly?

24

A

No.

25

Q

Have you ever worked for the New York

26

State Assembly?

DEBORAH A. ROTHROCK, RPR

150 1

Direct - J. Loeser - by Petitioner

2

MR. MANDELKER:

I am going to object to

3

the entire line of questioning.

4

witness.

5

THE COURT:

6

THE WITNESS:

7

date.

It is his

I'm advising you Madam -The records are out of

I have sent them -Page 82

080609 Gleason v Gerson 8 9

THE COURT:

You must keep your

employment, your place of employment current with

10

the New York, whoever maintains-- the attorney

11

registration unit of the New York Office Court

12

Administration and I am informed you of this.

13

Have you done that?

14

THE WITNESS:

15

THE COURT:

16

THE WITNESS:

17

THE COURT:

18

THE WITNESS:

19

MR. DOWD:

20

THE COURT:

Yes, I will. You will pay the fee? Yes.

It is a 30-day rule, your

Apparently the witness has

indicated that she's received a waiver.

23

MR. DOWD:

24

change of address.

25 26

And you will do that?

Honor.

21 22

Yes.

THE COURT:

That's for registration, not

She will correct whatever

deficiency she has with respect to the

DEBORAH A. ROTHROCK, RPR

151 1

Direct - J. Loeser - by Petitioner

2

registration.

And I might add, there has been no

3

order issued by the Appellate Division suspending

4

her from practice at this time that I am aware

5

of.

6

MR. DOWD:

7

THE COURT:

That was not an allegation. Then what is the allegation.

Page 83

080609 Gleason v Gerson MR. DOWD: I just wanted to know whose

8 9

paying her, if anyone --

10

MR. MANDELKER:

11

MR. DOWD:

12

THE COURT:

13

To collect signatures. She's indicated that she has

not received compensation to that.

14 15

Your Honor --

MR. DOWD:

What is her employ.

asking.

16

THE COURT:

She's testified as to that.

17

Are there any other issues?

18

MR. DOWD:

19

Sometimes people have two

jobs, that's all.

20

THE COURT:

21

MR. MANDELKER:

22

I'm just

Excuse me, sir. May I move to strike the

preceding questions concerning --

23

THE COURT:

You may move but is denied.

24

Right now, do you have anything further of the

25

witness?

26

MR. DOWD:

I would like to know if she

DEBORAH A. ROTHROCK, RPR

152 1

Direct - J. Loeser - by Petitioner

2

has another employ currently or who other than

3

her law firm employed her, if anyone.

4

THE COURT:

5

Continued

6

DIRECT EXAMINATION:

7 8

Q

You may ask the question.

Aside from the law firm that you're

currently employed with during the period of Page 84

080609 Gleason v Gerson 9 10

collecting petitions, were you employed by anyone else?

11

A

No.

12

Q

Now, following July 7th, did you come to

13

learn of any problems with the submission of Mr.

14

Gerson's petitions?

15

A

I read about it in the paper.

16

Q

Were you involved in amending any cover

17

sheets that were submitted --

18

A

No, nope.

19

Q

--to the Board of Elections?

20

A

Nope.

21

Q

Did you have any role in --withdrawn.

22

Did you have any conversations with Mr.

23

Gaffin about the changes made to Mr. Gerson's cover

24

sheets?

25

A

26

I never. THE COURT:

Mr. Gaffin step outside.

DEBORAH A. ROTHROCK, RPR

153 1

Direct - J. Loeser - by Petitioner

2

(Pausing.)

3

THE COURT:

4

(Question read.)

5

THE WITNESS:

6

Q

Read the question back.

No.

Did you have conversations with anyone

7

from Alan Gerson's campaign about changes made to the

8

petitions? Page 85

9

A

080609 Gleason v Gerson No.

10

Q

Did you have any conversations with David

11

Reck about changes to the petitions?

12

A

No.

13

Q

Any conversations with David Weinberger

14

about changes to the petitions?

15

A

No.

16

Q

Did you have conversations with any of

17

the other signatories to the petitions about changes

18

to their petitions?

19

A

No.

20

Q

Did you have any conversations with Renee

21

Abramowitz about the signature gathering process?

22

A

Of course.

23

Q

Sorry?

24

A

Of course.

25

Q

Did you discuss with Renee Abramowitz

26

changing Alan Gerson address from 1505 to 505

DEBORAH A. ROTHROCK, RPR

154 1 2

Direct - J. Loeser - by Petitioner LaGuardia Place?

3

A

I don't recall.

4

Q

Did you have any conversations with

5

Edward Braunstein about changing Alan Gerson's address

6

from 1505 LaGuardia Place to 505 LaGuardia Place?

7 8 9

A

I have a question.

You preface these

questions -THE COURT: Wait, wait, wait. Page 86

Ask the

080609 Gleason v Gerson 10

question again -- read the question.

11

(Question read.)

12

THE COURT:

13

yes or no.

14 15

The answer to that would be

THE WITNESS: timing.

My question is about

Once the questions were submitted.

16

THE COURT:

The answer is yes or no.

17

THE WITNESS:

Yes.

18

Q

When?

19

A

The night when we collected all the

20

petition sheets.

21

Q

After you collected the petitions?

22

A

Yes.

23

Q

Did you tell him to change it?

24

A

Uh-huh -- yes.

25

Q

Did you have any conversations was Camden

26

Ackerman about changing Alan Gerson's address?

DEBORAH A. ROTHROCK, RPR

155 1

Cross - J. Loeser - by Respondent

2

A

Yes.

3

Q

When did that conversation take place?

4

A

The night we were binding our petition

5

sheets.

6

Q

And you told him to change it?

7

A

Yes.

8

MR. DOWD:

9

THE COURT:

No further questions. Any cross-examination?

Page 87

080609 Gleason v Gerson MR. MANDELKER: Yes, sir may.

10 11

have a moment.

12

CROSS-EXAMINATION

13

BY MR. MANDELKER:

14 15 16

I just

(Pausing.) Q

Miss Loeser, do you have before you

Petitioner's Exhibit 3 from August 4th.

17

A

Yes.

18

Q

It is a copy of the petition, yes?

19

A

Yes.

20

Q

Okay.

21 22

Now could you turn to the page that has your signature.

23 24

THE COURT:

Indicate what page in the

exhibit it is.

25 26

You signed that on July 7th?

MR. MANDELKER:

It is a page that at the

bottom says sheet number five.

DEBORAH A. ROTHROCK, RPR

156 1

Cross - J. Loeser - by Respondent

2 3

THE COURT:

There are no other sheet

number fives in this exhibit.

4

MR. MANDELKER:

5

word sheet number five.

6

THE COURT:

None other that says the

Thank you.

7

Q

You have that page before you?

8

A

I do.

9

Q

When did you obtain the signatures that

10

appear on that sheet? Page 88

080609 Gleason v Gerson 11

A

July 7th.

12

Q

And when you obtained signatures on a

13

designating petition, when you did it this year, is

14

there anything in particular that you say to the

15

voters before they sign?

16

A

Yes.

17

Q

What is it?

18

A

I ask them if they are registered

19

democrat, I ask them if they live in the neighborhood,

20

and then I ask them to help get our local Democratic

21

slate on the ballot by signing a petition.

22

Q

And did there come a time during this

23

process with respect to each person that you asked to

24

sign, that you described the public officers that are

25

mentioned in the petition?

26

A

Yes.

People frequently ask whom am I

DEBORAH A. ROTHROCK, RPR

157 1

Cross - J. Loeser - by Respondent

2

signing for, what is this about, so I go through each

3

office and describe.

4

Q

Did there come a time during the process

5

with each voter that you made reference to Alan J

6

Gerson?

7

A

Yes.

8

Q

And could you tell us what it was your

9 10

habit and what did you say to voters when they signed the petition concerning Alan J Gerson? Page 89

11

080609 Gleason v Gerson MR. DOWD: Objection to form.

12

THE COURT:

13

cross-examination.

14

A

15 16

Overruled.

We're on

I referred to him as our counsel member

or representative in the city counsel. Q

17

Thank you. What was the reason that you crossed out

18

the "one" in 1505 LaGuardia Place in the address box

19

for Alan Gerson?

20

A

I know he lives at 505 LaGuardia Place

21

and I was just correcting it.

22

correcting it.

23

Q

24

I thought I was

All right. Now, do you know if other petition

25

gathers, such as I think you were asked about Mr.

26

Ackerman and you were asked about a Camden Ackerman

DEBORAH A. ROTHROCK, RPR

158 1 2

Cross - J. Loeser - by Respondent and Edward Braunstein?

3

A

Yes.

4

Q

Do you know of your own knowledge what,

5

if anything, they said to voters concerning Mr. Gerson

6

when they were gathering petition signatures?

7

A

8 9 10 11

I don't know. THE COURT:

Q

That's a good answer.

Did you instruct them at all one way or

the other? A

Okay.

Could you repeat the question. Page 90

080609 Gleason v Gerson 12

Q

Did you in instruct either Mr. Braunstein

13

or Mr. Ackerman about what to say to voters whose

14

signatures they were soliciting concerning Mr. Gerson?

15

A

Yes.

16

Q

What did you instruct them to say?

17

A

That he's our counselman.

18

the general areas of his district.

19

MR. MANDELKER:

20

No further questions.

21

THE COURT:

22

MR. DOWD:

23

THE COURT:

24

I pointed out

That's about it.

Thank you.

Any re-direct? No, sir. The witness is excused.

Thank you so much:

25

We have one more witness.

26

MR. DOWD:

Yes.

DEBORAH A. ROTHROCK, RPR

159 1 2

Cross - J. Loeser - by Respondent (Witness exits.)

3 4

RENEE ABRAMOWITZ, called as a witness,

5

having been first duly sworn by the Court, was

6

examined and testified as follows:

7

THE WITNESS:

8

THE COURT:

9

THE WITNESS:

I affirm. Do you so affirm? Yes.

10

THE COURT:

Note that for the record.

11

You may begin. Page 91

080609 Gleason v Gerson MR. DOWD: Thank you.

12 13

DIRECT EXAMINATION

14

BY MR. DOWD:

15

Good afternoon Ms. MR. MANDELKER:

16

to keep her voice up.

17

hear.

18

THE COURT:

Abramowitz.

Might I ask the witness I am having difficulty to

Please keep your voice up so

19

that the reporter could take down every word

20

you're saying, it is the most important, and that

21

I could hear you.

22

THE COURT:

23

MR. DOWD:

24

May I show the witness

Petitioner's 3?

25 26

Yes.

THE COURT:

Petitioner No. 3 is now in

the possession of the witness.

DEBORAH A. ROTHROCK, RPR

160 1

Cross - J. Loeser - by Respondent

2 3

(Handing.) Q

I would like to Ms. Abramowitz, I would

4

like to ask you to look at Petitioner's 3 and turn to

5

the third page.

6

Is that your signature there?

7

A

Yes.

8

Q

On sheet number one?

9

A

Yes.

10

Q

And the two preceding pages are part of

11 12

the same sheet; is that correct? A

Yes. Page 92

080609 Gleason v Gerson 13

Q

And looking at sheet number one, do you

14

know when you -- looking at sheet number one and your

15

signature, do you recall when you signed this

16

document?

17

A

Where I only see initials?

18

Q

I am sorry.

19

A

There's only initials on the top.

20

Q

Let me show you sheet number one.

21

A

Turn the page.

22

Q

The third page.

23

A

That is my signature and I signed it on

24

I cannot hear you.

6/09.

25

Q

So that's June 9, 2009?

26

A

Yes.

DEBORAH A. ROTHROCK, RPR

161 1

Cross - J. Loeser - by Respondent

2

Q

And you reside 5004 Grand Street, E11?

3

A

Yes.

4

Q

And you wrote each of the individuals

5

whose names are subscribed to this petition sheet

6

containing 14 signatures, subscribed the same in my

7

presence, on the dates above indicated and identified

8

himself or herself to be the individual who signed the

9

sheet.

10

A

Yes.

11

Q

And I would like you to turn to the

12

previous page.

And we see the name Alan Gerson there? Page 93

13

A

080609 Gleason v Gerson Yes.

14

Q

Now, on the right hand side straight

15

across we see places of residence and below that we

16

see 505 LaGuardia Place.

Do you see that?

17

A

Yes.

18

Q

And prior to the 505 there's a little

19

hand written notation and next to that there's some

20

initials.

Could you tell me what that is?

21

A

RA.

22

Q

And do you know who that is?

23

A

Do I know who that is?

24

Q

Are those your initials?

25

A

No.

26

Q

Did you make that change?

DEBORAH A. ROTHROCK, RPR

162 1

Cross - J. Loeser - by Respondent

2

A

No.

3

Q

I would like to turn your attention to

4

Page 6 and down at the bottom it says sheet number

5

two.

6

A

This one?

7

Q

Yes.

8

And is that your signature?

9

A

Yes.

10

Q

And you signed it on what date?

11

A

6/9.

12

Q

June 9th?

13

A

June 9th. Page 94

080609 Gleason v Gerson 14

Q

15 16

Thank you. Now, moving a page earlier, again we see

Alan J Gerson.

17

A

Okay.

18

Q

And across from that we see again 505

19

LaGuardia Place.

20

A

Yes.

21

Q

A handwritten notation and some initials.

22

Are those your initials?

Did you write them in?

23

A

No, I didn't.

24

Q

Did you make that change?

25

A

No, I did not.

26

Q

How did you receive these sheets who gave

DEBORAH A. ROTHROCK, RPR

163 1 2

Cross - J. Loeser - by Respondent them to you?

3

A

I was given it at my work.

4

Q

Who?

5

A

It was just at my desk so I wasn't the

6

one I don't know the person who someone handed it.

7

just had it on my desk.

8

Q

Where do you work?

9

A

I work 500A Grant Street.

10

THE COURT:

11

THE WITNESS:

I

What do you do? Nurse Director of Patient

12

Services and Head Nurse.

13

Q

Of what entity? Page 95

14 15

A

Service Corporation.

16

Q

17

sheet?

18

A

19

080609 Gleason v Gerson United Jewish Counsel Home Attendants

And you don't know who gave you this

No, it was on my desk and I volunteered

to go out and get signatures.

20

Q

Did you discuss this with anyone?

21

A

Meaning?

22

Q

Well, when you got the sheet, was there a

23

note on the front?

24

A

No, I've done this -- I have done this

25

many years.

26

just go out and I volunteer to do signatures.

So I know when the sheets on my desk, I

DEBORAH A. ROTHROCK, RPR

164 1 2 3

Cross - J. Loeser - by Respondent Q

And who -- when you got it and you

decided to volunteer, did you contact anyone?

4

A

No.

5

Q

Did you discuss the signature gathering

6

process with anyone?

7

A

No.

8

Q

When you collected the signatures who did

9

you give them to?

10

A

I leave it on my bosses desk.

11

Q

Who is your does?

12

A

Howard Fried.

13 14

THE COURT: Q

F R I E D.

And did you have any discussions with Mr. Page 96

080609 Gleason v Gerson 15 16

Fried about this? A

No.

17

MR. DOWD:

18

THE COURT:

19

MR. MANDELKER:

20

THE COURT:

21

THE WITNESS:

22

THE COURT:

23

No further questions. Cross-examination. No cross.

The witness is excused. Thank you. Do we have any other

witnesses.

24

MR. DOWD:

No, sir.

25

THE COURT:

26

MR. MANDELKER:

Any witnesses Mr. Mandelker. No, sir.

DEBORAH A. ROTHROCK, RPR

165 1

-Proceedings-

2

THE COURT:

Have a seat.

3

Off the record.

4

(Off-the-record discussion).

5

THE COURT:

Rather than to hear

6

summations, it is my custom to allow the parties,

7

if they so wish, to submit a memorandum or

8

memoranda of law in support of their respective

9

positions.

10

The memorandum or memoranda of which I

11

speak are affirmative in nature but nevertheless

12

must be served adversarially.

13 14

Inasmuch as we have a limited time space, I must have a report available to the Page 97

15

080609 Gleason v Gerson parties, and to Justice Lehner no later than --in

16

a manner timely enough so that the parties might

17

move to confirm or vacate whatever it is that I

18

may put in my report.

19

I am somewhat limited in the leeway that

20

I could give you to submit the memoranda or

21

memorandum of which I speak.

22

Off the record.

23

(Whereupon, an off the record discussion

24 25 26

was held.) THE COURT:

As such, I am directing that

you furnish me, if you show choose, a memorandum

DEBORAH A. ROTHROCK, RPR

166 1

-Proceedings-

2

of law in support of your respective positions on

3

the two matters, same bearing index number 110759

4

of 2009 and 110688 of 2009, you may combine the

5

memoranda, if you wish, into one memorandum of

6

law and I ask that you furnish the matter

7

together with me with the complete proceeding of

8

the August 4, 2009, as well as today's proceeding

9

of August 6th of 2009.

10

You will furnish that to me by e-mail no

11

later than 2:00 p.m. on August 7th at my e-mail

12

address which is [email protected].

13

Alternatively you may fax the documentation of

14

which I have spoken, the memoranda of law and the

15

transcript of this procedure at 212-457-2661. Page 98

080609 Gleason v Gerson 16

You will, inasmuch as I have indicated,

17

that this matter must be exchanged adversarial,

18

you will simultaneously serve each other in any

19

way you wish by either e-mail, by fax, or

20

personal delivery within one hour of furnishing

21

me with the documentation to which I have spoken,

22

specifically the memoranda of law, and the

23

transcription of this proceeding.

24 25

MR. MANDELKER:

Mr. Dowd and I have

stipulated to exchange by e-mail.

26

THE COURT:

Then it is so stipulated on

DEBORAH A. ROTHROCK, RPR

167 1 2

-Proceedingsthe record; is that correct?

3

MR. DOWD:

Yes, sir.

And yesterday's

4

transcription was 66 pages, so would you mind if

5

we forwarded yesterday's transcription by e-mail

6

now so that we make sure we have the right

7

e-mail.

8

THE COURT:

9

MR. DOWD:

10

THE COURT:

11

MR. DOWD:

12 13 14 15

Yes, that would be good. That would avoid the fax. As you wish. Simultaneously, when she

e-mails you send the second transcript. THE COURT:

You will make arrangement

with the reporter. THE COURT:

Other than that does anyone

Page 99

16

080609 Gleason v Gerson have anything further to add to the record?

17

MR. MANDELKER:

18

an expeditious hearing.

Thank you very much for

19

MR. DOWD:

Like nice.

20

THE COURT:

21

At this time the record of this

My pleasure.

22

proceeding is closed.

23

recess.

24

This matter stands in

Thank you. Noting for the record that Justice

25

Lehner has scheduled oral argument in this matter

26

for 2:15 on August 12th.

The Appellate Division

DEBORAH A. ROTHROCK, RPR

168 1

-Proceedings-

2

has agreed to hear any arguments resulting from

3

action in this Court on August 18th.

4

further add, I don't believe you have to wait

5

until August 18th to submit to the Appellate

6

Division, that is their last day to hear oral

7

argument or argument in this matter.

8

sure which date has been designated for Court of

9

Appeals, but I am directing you to check the law

And I might

I am not

10

journals or with the Clerk of the Court of the

11

precise date.

12

At this time the record of the

13

proceedings is closed and the matter stands in

14

recess.

15

MR. DOWD:

Thank you.

16

MR. MANDELKER: Thank you. Page 100

080609 Gleason v Gerson 17

*

*

*

18 19

It is hereby certified that the foregoing is a true and accurate transcript of the proceedings.

20 21 22

______________________________ DEBORAH A. ROTHROCK, RPR Official Court Reporter

23 24 25 26

DEBORAH A. ROTHROCK, RPR

Page 101