Lawsuits pile up as Tuxedo Park awaits election decision

TUXEDO PARK. Both sides say they want the votes be counted now, but there likely won’t be a decision until later this month.

| 11 Jul 2023 | 02:05

Who will be the mayor of Tuxedo Park? The battle over the 181 votes cast on election day has only grown in the three weeks since.

And though both sides say they want the votes to be counted now, there likely won’t be a decision until later this month.

“All Claudio (and Marc) has to do is drop the cases against the village,” said the incumbent mayor, David McFadden. He was referring to public advocate Claudio Guazzoni de Zanett, who has filed two lawsuits and plans a third, and candidate Marc Citrin, who ran against McFadden. (Citrin was not involved in bringing either lawsuit.) “Once that is done the election can proceed, and the village taxpayers won’t have to waste another penny defending their right to vote.”

Citrin told the board at a special meeting last Thursday there was no reason why the 151 uncontested votes could not have been counted long ago, and that a count now would show whether one of the candidates held an insurmountable lead.

John Sarcone, who is representing Guazzoni, told The Photo News that the count was on track until derailed by the mayor. He said the village attorney, Brian Nugent, sent him a draft stipulation that would have allowed them to work together to count the ballots cast by registered voters. But, he said, McFadden did not want the two lawyers to work things out so he could exploit a new state election law that, Sarcone claims, allows for the stealing of votes.

Citrin said he supports allowing the county elections commissioners to decide the validity of the absentee ballots. “It is my wish that all of the absentee ballots of timely registered Tuxedo Park voters be counted as quickly as possible,” he said in a statement. “Uncertainty in the outcome of the mayoral election benefits no one.”

McFadden said Guazzoni’s lawsuits are wasteful and hurting the village. “In a small village Claudio’s antics are cutting into our legal budget and we will have to do our best not to increase property taxes next year,” he wrote in an email to The Photo News.

“Residents are sickened by the divisiveness and infighting,” said McFadden. “People move here to find sanctuary from their everyday lives and that has been impossible now for weeks.”

Election lawsuit

The election lawsuit brought against Elizabeth Dougherty, the village clerk and election official, and filed on election day, June 20, succeeded in stopping the vote count. It is focused on 30 absentee ballots that Sarcone said were given to people -- like the adult children of residents who have moved out of Tuxedo Park -- not registered to vote in the village by the registration deadline.

The counting of absentees was supposed to take place before the county’s elections commissioners on June 23 , Sarcone said in an email to The Photo News. “But the mayor had the village attorney removed and then came up with the scheme to defraud the public and have the taxpayers pay for high-priced election lawyers out of Rochester to try and see if they can find a weasel way to have the 30 illegally cast absentee ballots (that the mayor and his supporters harvested which he knows are votes for him) counted so he can possibly steal an election.”

McFadden said he could not comment on the specifics of either case.

The hearing will take place on July 24 in Orange County Supreme Court.

Article 78 lawsuit

The second lawsuit was filed about a week after the election, aims to “stop the illegal use of public funds to pay for new lawyers to aid the mayor in his re-election campaign,” according to Sarcone.

This case, Guazzoni vs. McFadden, is an Article 78 proceeding, which allows citizens in New York State to get a court review of official decisions believed to be unlawful.

This lawsuit followed a June 26 village meeting in which the board took Nugent off the election case, replaced him with the Santiago Burger law firm, and made McFadden the point of contact for all matters related to the suit. Two of the trustees recused themselves from voting on the last two resolutions, but McFadden voted yes on all three.

The village responded to the second lawsuit with a do-over. “Rather than expend taxpayer funds defending frivolous litigation claims, the Village Board desires to ratify and confirm the prior Village Board actions by superseding resolutions thereby mooting the baseless litigation claims,” reads the language in several fresh resolutions passed by the board in a special meeting on July 6. Among the claims called baseless is that “Village Board actions were conducted ‘behind closed doors’ when such Village Board actions were actually conducted in public session and a claim that the Village Board was required to have a meeting notice published in the official newspaper, which is wholly inaccurate and contrary to the law which does not require newspaper publication of meeting notices.”

McFadden said he would be hiring his own lawyer. “I am in the process of interviewing attorneys specializing in election law to represent me as a Candidate and Respondent to the Petitioner Mr. Guazzoni,” McFadden said after the vote count was stopped.

The village hired the Harris Beach law firm to represent it in the The Article 78 case is scheduled for a hearing on July 14, although Sarcone said a week’s adjournment is likely.

Then there’s the promised lawsuit, to be filed on Monday, suing the village for all legal expenses incurred if the village is found to have acted illegally.

All of the cases are brought by Guazzoni, who says he is the village’s public advocate -- a title disputed by the mayor.

Sarcone called Guazzoni “a hero” for spending his own money to insure a clean election and accountable government in Tuxedo Park.

License to steal?

The big picture, Sarcone said, is that McFadden is trying to game New York State’s new election law, passed in 2022. According to Sarcone, the new law does not allow absentee ballots to be challenged after the election official, who is supposed to check registrations, gives them out, or after these ballots are cast. The law was passed by the Democratic majority in Albany so they can “steal elections,” he said.

Orange County Elections Commissioners Louise Vandermark and Courtney Canfield Greene said they have no information about the Tuxedo Park election, which is run exclusively by the village. But they told The Photo News that, with regard to registrations and ballots, “Anyone can challenge anything at any time.” They said there has been a lot of confusion about this issue. But, they said, any person can mount a challenge and file a Freedom of Information Law request with their election official.

The 2022 law says that “any person may challenge the registration of a voter” by affidavit, and that the board will investigate and notify the person whose registration is so challenged after the affidavit is received. If the board cannot complete its investigation before the next election, it says, the registrant’s name will go on a list as a person to be challenged when voting.

In any case, Guazzoni did succeed in stopping the vote and forcing the village to re-do its hiring resolutions.

And the village succeeded in putting off the count Guazzoni wants to resume -- until all the complexities of the case are put in front of a judge.

Note: This article has been updated from the original to correct the identity of the speaker at last week’s special meeting and add comment from the election commissioners, among other revisions.

What election is being challenged? Mayor David McFadden vs. challenger Marc Citrin
When was the election? June 20
Who is challenging the election? Claudio Guazzoni de Zanett, public advocate
How many ballots are being challenged? 30, all absentee
How many ballots are not being challenged? 151
Who is representing the village in the Article 78 proceeding? Harris Beach law firm
When will that case be heard in Supreme Court? July 14, although a week’s adjournment is likely.
Who is representing the village in the election law case? Santiago Burger law firm and Joe Burns Esq.
Who represents the village normally? Brian Nugent of Feerick Nugent MacCartney, which the village discharged from representing Tuxedo Park in both cases brought by Guazzoni.
When will the election case be heard in Supreme Court? July 24