Summary
stating that "the bar for establishing fraud is a high one" and that clear and convincing evidence is "a standard that has been defined as proof that makes it highly probable that the alleged activity actually occurred"
Summary of this case from Pristine Jewelers NY, Inc. v. BronerOpinion
No. 57
05-21-2020
In the Matter of Ramona FERREYRA et al., Appellants, v. Carmen E. ARROYO, Respondent, Board of Elections in the City of New York, Respondent.
OPINION OF THE COURT
Per Curiam. This appeal presents the issue whether the designating petition submitted by respondent Carmen E. Arroyo should be invalidated because it is permeated by fraud as a matter of law. We conclude that in the circumstances of this case the designating petition should be declared invalid.
It is true that the bar for establishing fraud is a high one. "Fraud must be proved by clear and convincing evidence" (Matter of Robinson v. Edwards, 54 A.D.3d 682, 683, 865 N.Y.S.2d 223 [2d Dept. 2008] ; see Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 349–350, 704 N.Y.S.2d 177, 725 N.E.2d 598 [1999] )— a standard that has been defined as proof that "makes it highly probable that the alleged activity actually occurred" ( People v. Warrior, 57 A.D.3d 1471, 1472, 870 N.Y.S.2d 199 [4th Dept. 2008] [internal quotation marks omitted]; see People v. Britton, 31 N.Y.3d 1019, 1024, 75 N.Y.S.3d 459, 99 N.E.3d 852 [2018] ). Nevertheless, where appropriate, a court may also conclude
that, "because of its magnitude[,]" fraud and irregularity established by clear and convincing evidence "so ‘permeated’ the [designating] petition as a whole to call for its invalidation" ( Matter of Proskin v. May, 40 N.Y.2d 829, 830, 387 N.Y.S.2d 564, 355 N.E.2d 793 [1976] ; see Matter of Aronson v. Power, 22 N.Y.2d 759, 760, 292 N.Y.S.2d 465, 239 N.E.2d 385 [1968] ; cf. Matter of Ferraro v. McNab, 60 N.Y.2d 601, 603, 467 N.Y.S.2d 193, 454 N.E.2d 533 [1983] ). Based on the undisputed facts of this matter, which establish, among other things, "that 512 out of 944 signatures submitted in the [designating] petition are backdated to dates preceding the candidate's receipt of the blank petition pages," and that "14 of the 28 subscribing witnesses" swore that those signatures were placed on the designating petition before the blank petition pages were obtained from the printer ( Matter of Ferreyra v. Arroyo, 183 A.D.3d 473, 475, 123 N.Y.S.3d 604, 607, 2020 WL 2478745 [1st Dept, May 14, 2020] [Gesmer, J., dissenting]; cf. Election Law § 6–134[3] ), the lower courts should have concluded that this is one of those rare instances in which the designating petition is so "permeated" by fraud "as a whole as to call for its invalidation" ( Proskin, 40 N.Y.2d at 830, 387 N.Y.S.2d 564, 355 N.E.2d 793 ; see Aronson, 22 N.Y.2d at 760, 292 N.Y.S.2d 465, 239 N.E.2d 385 ).
Accordingly, the Appellate Division order should be reversed, without costs, and the petition to invalidate the designating petition granted.
STEIN, J. (dissenting).
The majority applies an amorphous standard to effectively hold that respondent's designating petition was permeated with fraud as a matter of law. In so holding, the majority disregards our long-settled standard of review and erroneously interjects itself into a factual determination reserved for the courts below. I, therefore, respectfully dissent.
"[T]he question of permeation of fraud and irregularities" is "usually a question of fact" to be resolved by the factfinder ( Matter of Pilat v. Sachs, 42 N.Y.2d 984, 984, 398 N.Y.S.2d 409, 368 N.E.2d 31 [1977] ; see Matter of Rittersporn v. Sadowski, 48 N.Y.2d 618, 619, 421 N.Y.S.2d 49, 396 N.E.2d 197 [1979] ). Moreover, where this Court is presented with affirmed findings of fact, our review is limited to whether the record contains support for those findings (see Matter of Rittersporn, 48 N.Y.2d at 619, 421 N.Y.S.2d 49, 396 N.E.2d 197 ; Matter of Pilat, 42 N.Y.2d at 984, 398 N.Y.S.2d 409, 368 N.E.2d 31 ; compare Matter of Proskin v. May, 40 N.Y.2d 829, 387 N.Y.S.2d 564, 355 N.E.2d 793 [1976] ; Matter of Aronson v. Power, 22 N.Y.2d 759, 292 N.Y.S.2d 465, 239 N.E.2d 385 [1968] ).
Here, although the backdated pages "might well have supported an inference ... that there was a fraudulent intent which infected the petition," our precedent plainly holds that "whether to draw th[is] inference is ... a question of fact" ( Matter of McKenna v. Ruiz, 40 N.Y.2d 815, 816, 387 N.Y.S.2d 558, 355 N.E.2d 787 [1976] ; see Matter of Quinones v. Bass, 45 N.Y.2d 811, 813, 409 N.Y.S.2d 131, 381 N.E.2d 338 [1978] ). The referee, Supreme Court, and the Appellate Division—entities with fact-finding power that we do not possess—each resolved this question in respondent's favor and were not persuaded, to a clear and convincing degree, that respondent either participated in the fraud or that the irregularities rose to a sufficient level to infect the remainder of the designating petition. Inasmuch as the record here is comprised almost entirely of documentary evidence and there was no direct evidence
indicating that the defect was the result of fraudulent intent, as opposed to inadvertent human error, a rational factfinder may reasonably decline to draw such an inference. Nor is there any specter of fraud surrounding the more than 240 valid signatures on other pages of the designating petition as it is conceded that those pages did not suffer from a similar irregularity (compare Matter of Lerner v. Power, 22 N.Y.2d 767, 768, 292 N.Y.S.2d 471, 239 N.E.2d 389 [1968] ). In my view, "we cannot hold on this record that [an] inference [of fraud] was compelled as a matter of law" ( Matter of McKenna, 40 N.Y.2d at 816, 387 N.Y.S.2d 558, 355 N.E.2d 787 ), and the majority impermissibly usurps the role of the factfinder and exceeds the jurisdiction of this Court to reach the contrary conclusion.
Judges Rivera, Fahey, Garcia and Wilson concur. Judge Stein dissents in an opinion in which Chief Judge DiFiore and Judge Feinman concur.
Order reversed, without costs, and petition to invalidate the designating petition granted.