Novel Administrative Judge Babbling: No Recollection

WPCNR WHITE PLAINS LAW JOURNAL. By John F. Bailey. August 25, 2008: New York Supreme Court Judge Francis Nicolai told WPCNR he did not “recollect” writing the key word “overnight” into the margin of the court order spelling out how Hockley District Leader Candidates’ attorney Jay Boyarsky was to deliver a show cause order to ten persons of Hockley District Leader challenger petitions August 4.

Judge Nicolai does not remember how the “overnight” found its way onto the court order spelling out how the Hockley attorney was to respond to the Board of Elections denial of 10 Hockley petitioners. Nicolai, asked by WPCNR why he wrote overnight into the margin, which according to the Hockley/Garfunkel attorney said “To my recollection I did not write (“overnight”), somebody in the administration court system must have added it,” he said. The "overnight" word in the margin was key in creating the situation resulting in the removal of ten supporters perhaps sympathetic to Glen Hockley from the September 9 District Leader Democratic Primary contests for district leader in White Plains.

What does Overnight Mean? As a result of that scrawled word in the margin, the Hockley team sent their show cause papers overnight mail on August 4, with the arguments with arriving to the “respondent-objectors” on August 5. When they did arrive the attorney for the Board of Elections on asked Judge Nicolai to dismiss the case for missing the show cause deadline.

Nicolai explained that the Hockley District Leader action had to commence on the third day following the Board of Elections denial of the 10 petitions. The petitions were denied by the Board of Elections on August 30, Judge Nicolai said, that meant Mr. Boyarsky had Thursday, July 31, Friday, August 1st, the two days on the weekend not counting), the August 4 to produce his show cause papers. Another interesting aspect of the Court Order shows that the original date penciled in actually reads “5th” of August, but has been crossed out and replaced with number “4th” and the significant “overnight” word placed in the margin, above it is initials that Mr. Boyarsky, the Hockley attorney, believes are Judge Nicolai’s. Mr. Boyarsky told WPCNR that Nancy, a clerk for Judge Nicolai took the court order from the eighth floor of the courthouse to the ninth floor to Judge Nicolai to sign, and when they came back the words “Overnight,” and above it were the initials he believed to be “FAN/JSC” were written in the margin. Judge Nicolai was mystified, he asked WPCNR wasn’t it in the typed portion, when told it was not, that the “overnight” word was written, the judge said he did not recollect writing that word in.

Boyarsky told WPCNR if he had not seen the “overnight” word, he would have had the show cause paper work delivered to the 10 individuals (Objectors)protesting by hand on August 4, as he had delivered the show cause papers to the Board of Elections as instructed, complying with the order August 4. He said it is not standard legal practice to call up the Judge and ask do you really mean “overnight.” “The judge tells you what to do, you don’t question it,” Boyarsky said, “This was just bizarreness.” A costly note. The effect, though, of the “overnight” word, was to create the impression on the part of Mr. Hockley’s attorney, Boyarsky that the papers could be overnighted to objectors August the 4th for arrival August 5. On August 5, before Judge Nicolai, the Board of Elections attorney pointed out that the Hockley show cause papers were not served on the other 10 objectors on August 4 as the court order stated. Judge Nicolai then told Boyarsky, “I have no choice but to dismiss, even if it’s inequitable.”

Asked why Boyarsky did not send the papers overnight using Saturday delivery, Boyarsky said he did not think he needed to since the word overnight was in the margin with the judge’s initials, but said he did not ask the law clerk delivering the court order what exactly “overnight” meant. The attorney Elizabeth Schollenberger (for the challengers of the Hockley 10) called Boyarsky at 11 P.M. the night before the argument on her dismissal motion was due (9 A.M. August 7). Boyarsky considered this harassment on Ms. Schollenberger’s part, because he said Judge Nicolai had given Boyarsky until 9 AM on the 7th. "This may backfire," Boyarksy said. "These 10 people challenging the district leader seats might have run with not that much interest in the position, but now that they see they’ve been disenfranchised it may make them take more interest in the Democratic Party.”