White Plains CitizeNetReporter - <i>FLASH!</i> Hockley Seeks “Stay” of Election in Appellate Court

FLASH!:Glen Hockley’s attorney, Adam Bradley is seeking a stay of the proceedings Tuesday in Judge Francis Nicolai’s decision issued last week calling for a new election in White Plains District 18, December 17-20.

WPCNR has learned from Rita Malmud, President of the White Plains Common Council, and Jeffrey Binder, attorney for Councilman Larry Delgado, that Mr. Bradley will argue the merits of a stay before Judge Sondra Miller of the Appellate Division, Second Department on Tuesday at 3:00 PM at 140 Grand Street, White Plains.

No Notice of Appeal has been received yet by Delgado attorneys. Mr. Binder said that he would be arguing against the stay.

Delay of Implementing the Remedy.

In effect, Binder characterized the maneuver as seeking to delay the continuation of the election, scheduled for next week, pending an appeal.

Technically, Binder says, a judge does not consider a stay unless a party files an appeal in a matter brought before the court. Binder said he expects to receive a Notice of Appeal either in court tomorrow or in sooner.

Call for a "Stay," Would Indicate an Appeal will be Launched.

The argument for a stay, Binder says, comes under Section 2201 of the Civil Practice Law & Rules, which allows for a stay “in a court in which an action is pending upon which terms as may be just.”

Since it is Binder's understanding that an action has to be pending before an appellate judge can rule on a stay, Binder expects to receive a Notice of Appeal simultaneously. Binder said he had no knowledge of a Notice of Appeal filing, or in his possession as of 1:30 PM Monday. Binder said he would be arguing that a stay is not just.

]A stay obviously gives Bradley more time to work up his appeal case, and also has the effect of moving the election ever forward in time to Mr. Hockley's legal advantage.

Common Council Could Appoint Hockley, Weakening Nicolai Argument

A stay that could push the election forward in time considerably, may mean “Advantage Hockley,” because of the White Plains City Charter. The Common Council, when there is a vacancy on the Common Council, is empowered to appoint a person to fill the vacancy, reports Edward Dunphy, White Plains Corporation Counsel. With a Democratic majority on the council, the natural choice would be to appoint Mr. Hockley to his seat, should the Appellate Court not reach a decision on the appeal by January when Mr. Delgado’s term officially ends.

Jeffrey Binder, attorney for Delgado in the matter, said, “If we get to that point, we would seek to enjoin the Common Council from filling that position. It (a council appointment of Hockley) could mean the Judge’s (Nicolai’s)argument that he has the power to do this (order a new election) rather than the attorney general (of the state of New York), would be undermined.”

Delay the Appeal and Try to Win Strategy a Possibility by Hockley Camp.

If a stay is not granted, however, with the 16-day “Window of Appeal,” Glen Hockley might try and go out and win the election next week outright. A formidable in-person campaigner, and dedicated to the principles he believes in, Mr. Hockley lives by the Japanese code, Sonsin, meaning, “focus.”

Hockley could focus his proven ability-to-campaign energy and easily visit all 366 voters in the critical District 18 by “Election Day II” next week. If he won, in the evenly matched district, it is “end of story,” and he is on the council. If he lost to Mr. Delgado, there is another option.

If he loses the election, he could still appeal the Nicolai decision.

Should Hockley lose the "continuation of the election," he could bring an action to the Attorney General office in a quowarranto proceeding contending that Mr. Delgado was a usurper of a council seat that was rightfully his.


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