Opinion
06-02-2016
In the Matter of Linda FATATA et al., Appellants, v. George PHILLIPS, Respondent, et al., Respondent.
James E. Walsh, Ballston Spa, for appellants. Hinman, Howard & Kattel LLP, Binghamton (Richard C. Lewis of counsel), for George Phillips, respondent.
James E. Walsh, Ballston Spa, for appellants.
Hinman, Howard & Kattel LLP, Binghamton (Richard C. Lewis of counsel), for George Phillips, respondent.
Before: PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ.
PER CURIAM. Appeal from an order and judgment of the Supreme Court (Platkin, J.), entered May 16, 2016 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to Election Law § 16–102, to declare invalid the designating petition naming respondent George Phillips as the Republican Party candidate for the public office of Member of the United States House of Representatives for the 22nd Congressional District in the June 28, 2016 primary election.
Respondent George Phillips filed a designating petition with respondent New York State Board of Elections seeking to be nominated as the Republican Party candidate for the public office of Member of the United States House of Representatives for the 22nd Congressional District in the June 28, 2016 primary election. Petitioners filed written objections with the Board challenging, as is relevant here, two signatures of the designating petition on the basis of candidate fraud (see Election Law § 6–154[2] ). Shortly thereafter, petitioners commenced this proceeding pursuant to Election Law § 16–102 seeking to invalidate the designating petition on the same basis. Phillips answered, and, in the interim, the Board determined that the designating petition retained its presumption of validity as the objections raised allegations of fraud that were beyond the Board's ministerial purview. Supreme Court thereafter dismissed the petition, finding that petitioners failed to meet their burden of establishing that Phillips knowingly engaged in any fraudulent activity. Petitioners now appeal.
A candidate's designating petition will be invalidated on the basis of fraud only where the challenging party establishes, by clear and convincing evidence, “that the entire petition is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity” (Matter of VanSavage v. Jones, 120 A.D.3d 887, 888, 991 N.Y.S.2d 666 [2014] [internal quotation marks and citations omitted], lv. dismissed 23 N.Y.3d 1045, 992 N.Y.S.2d 781, 16 N.E.3d 1260 [2014], lv. denied 24 N.Y.3d 901, 2014 WL 4345668 [2014] ; accord Matter of
Mattice v. Hammond, 131 A.D.3d 790, 790, 15 N.Y.S.3d 866 [2015] ; Matter of Vincent v. Sira, 131 A.D.3d 787, 788, 14 N.Y.S.3d 834 [2015], lv. denied 25 N.Y.3d 914, 2015 WL 5010176 [2015] ). Petitioners allege that Phillips engaged in fraud when he signed the subscribing witness statements on two pages of the petition attesting that each voter who signed his or her name did so in his presence, despite knowing that the statements were false as to two voters' signatures. Based on these allegations, we agree with Supreme Court that the finiteissue that must be decided is whether petitioners established by clear and convincing evidence that Phillips participated in or became knowledgeable of any fraud in relation to the subscribing witness statements.
Indeed, petitioners do not dispute that Phillips collected significantly more signatures than was required by the Election Law. Thus, even if we were to strike the two signatures at issue, Phillips would still have a sufficient number of signatures absent a finding that those two signatures were procured by fraud and that Phillips participated in the fraud (see Matter of Mertz v. Bradshaw, 131 A.D.3d 794, 796 n. 2, 14 N.Y.S.3d 837 [2015] ; Matter of Vincent v. Sira, 131 A.D.3d at 789, 14 N.Y.S.3d 834 ; Matter of Bonner v. Negron, 87 A.D.3d 737, 739–740, 929 N.Y.S.2d 170 [2011] ).
The uncontroverted testimony established that Phillips collected the signatures reflected on pages 17 and 38 of the designating petition. Regarding the signature on line 8 of page 17, Phillips testified that the daughter of that voter signed the voter's name after the voter informed him that she was physically unable to sign and that her daughter would sign as her power of attorney. Concerning line 20 of page 38, Phillips similarly testified that the voter's wife signed her husband's name after she told Phillips that her husband was incapacitated and could not sign, but that she would sign as his power of attorney. According to Phillips, he thought that “the people signing under a power of attorney had the power to act as that person”—including the power to sign the designating petition—and, in effect, stepped into the shoes of the person they signed for. Thus, it was Phillips' understanding that a signature by a holder of a power of attorney made in his presence was the legal equivalent of the incapacitated person's “subscri[ption] to th[e] petition ... in [his] presence.” Phillips testified that, based on this belief, he truthfully attested in the witness statements that each voter signed his or her name in his presence and identified himself or herself to be the voter who signed.
According to Phillips, he believed that the husband was nearby because the wife “looked to [her husband], she referenced him and then signed.”
Based upon Phillips' undisputed testimony, we find no reason to disturb Supreme Court's determination. Even assuming that the two signatures at issue are invalid, petitioners failed to establish by clear and convincing evidence that Phillips “ ‘acted fraudulently or did anything that would warrant invalidating the entire designating petition’ ” (Matter of VanSavage v. Jones, 120 A.D.3d at 888, 991 N.Y.S.2d 666, quoting Matter of Nolin v. McNally, 87 A.D.3d 804, 806, 928 N.Y.S.2d 615 [2011] ; see Matter of Mertz v. Bradshaw, 131 A.D.3d 794, 796 n. 2, 14 N.Y.S.3d 837 [2015] ; Matter of Felder v. Storobin, 100 A.D.3d 11, 16, 953 N.Y.S.2d 604 [2012] ; Matter of Kraham v. Rabbitt, 11 A.D.3d 808, 809–810, 783 N.Y.S.2d 141 [2004] ; Matter of McHugh v. Comella, 307 A.D.2d 1069, 1070, 763 N.Y.S.2d 698 [2003], lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 162, 798 N.E.2d 346 [2003] ). We reject petitioners' contention that our decisions in Matter of Mattice v. Hammond, supra and Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 930 N.Y.S.2d 319 (2011) support a contrary conclusion. In both Mattice and Valenti, this Court invalidated the designating petitions at issue based upon the candidates' testimony in which they admitted to signing the witness statements despite knowing that those statements were materially false (see Matter of Mattice v. Hammond, 131 A.D.3d at 791, 15 N.Y.S.3d 866 ; Matter of Valenti v. Bugbee, 88 A.D.3d at 1058, 930 N.Y.S.2d 319 ). In contrast, there was no similar testimony by Phillips. Accordingly, we find that Supreme Court properly dismissed the petition.
ORDERED that the order and judgment is affirmed, without costs.
PETERS, P.J., GARRY, ROSE, MULVEY and AARONS, JJ., concur.