The attorney for Village of Old Westbury trustee candidate Andrew Weinberg said on Monday that he will not be appealing Judge Arthur Diamond’s July 27 ruling, which declared Weinberg and write-in candidate Leslie Fastenberg tied for trustee with 178 votes each.
Last week, Steve Schlesinger, Weinberg’s attorney and brother-in-law, said that if he were to appeal, he would be looking to throw out two votes for Fastenberg that only included her surname.
Schlesinger said he chose not to appeal because his prior experience has led him to believe that an appeal will end up leading to a run-off election.
“In my past experience in election cases, even if you’re maybe technically right on the appeal, the court will avoid deciding the issue if the result of their non-decision will be that the voters get to decide,” he said.
Schlesinger said both parties have until Aug. 18 to file an appeal. He said that if Fastenberg’s attorneys choose to file an appeal, he will file a cross-appeal.
“If there were a 50-vote difference and I was looking to knock out these two votes, it wouldn’t change the outcome,” Schlesinger said. “But they won’t knock them out because it would change the results of the election.”
Last week, Fastenberg’s attorney, Ken Gray, said that if his side chose to appeal, the appeal would focus on getting the votes for Fastenberg that were incorrectly made in columns 2 and 4 of the ballot counted.
Attorneys for Fastenberg have not yet filed an appeal. Fastenberg said on Tuesday that she and her attorneys are viewing the situation “on a moment to moment basis.”
“I think we’re moving ahead cautiously,” Fastenberg said. “Assuming that we can move ahead fairly with both names on the ballot and two machines and no surprise dates, I think we would move to the runoff.”
On Tuesday afternoon, Fastenberg went to the Village Hall to file her oath of office as advised by her attorneys, Gray and Steve Martir of Bee Ready Fishbein Hatter & Donovan LLP of Mineola.
“In the event of an appeal, it’s just to make sure no one says on the other side, ‘Oh, she didn’t file an oath by this date so she’s not eligible,’” Fastenberg said.
Weinberg filed his oath of office on July 7.
Fastenberg said her attorneys have spoken with Village Attorney Michael Sahn and Village Clerk Ken Callahan, who have agreed that her name will appear on the ballot along with Weinberg’s, rather than as a write-in. “But again, until we see that, I’m guarded, and we’re going to wait and see what happens,” she said.
Fastenberg said she thinks the fair thing is for Weinberg to resign, but she doesn’t predict that he will do so.
“I both welcome a runoff and dread it,” Fastenberg said. “It’s a tremendous imposition to the residents of Old Westbury, asking them to come out and do it again.”
Trustee Cory Baker, who ran on the New Voice of Old Westbury slate with Fastenberg, was sworn in as trustee last Tuesday along with the third write-in slate candidate, Marina Chimerine.
Baker said the village is scheduled to hold a special meeting on Thursday at 3:30 p.m. to discuss election matters.
Following the meeting, he said, the trustees, Mayor Fred Carillo, Callahan, and Sahn will go into executive session.
In a public notice on the village’s website, Callahan wrote that the public meeting would be in regard to “setting a date for the Village run-off election pursuant to New York State Election Law, discussing general Village business and pending matters before the Board of Trustees, and all such other business that may come before the Board of Trustees.”
Baker said on Tuesday he has heard from initial conversations involving Callahan and Sahn that the suggested date for the election is sometime during the week after Labor Day, but nothing is set in stone.
He said he is unsure as to whether or not the election needs to be on a Tuesday, but he is not in favor of holding the election on the Tuesday after a three-day holiday weekend.
“Personally, I would like to see it go to a runoff,” Baker said. “I would like to see both names appear on the ballot, and I would like to see a more coordinated and structured effort from all involved, including the village, in a neutral atmosphere.”