Opinion
235/2021
04-23-2021
In the Matter of the Application of Vilair FONVIL, Democratic party candidate for Mayor of the Village of Spring Valley, New York and Citizen Objector, and Christopher Poole, Democratic party candidate for Village Justice of the Village of Spring Valley, New York, Petitioners, v. Sabrina CHARLES-PIERRE, Democratic party candidate for Mayor of the Village of Spring Valley, and Loubands Demosthene, Democratic Party Candidate for Trustee of the Village of Spring Valley, and Thomas V. Sassone and Vince F. Sykes, Democratic party candidates for the Village Justice of the Village of Spring Valley, Respondents-Candidates, and Kristen Zebrowski Stavisky and Patricia A. Giblin, as Commissioners of the Rockland County Board of Elections, Respondent-Commissioners, Pursuant to New York State Election Law Article 16-102. Sabrina Charles-Pierre, Loubands Demosthene, Petitioners, Candidates-Aggrieved, v. Vilair Fonvil, Respondent-Candidate, and Rockland County Board of Elections and Kristen Zebrowski Stavisky and Patricia A. Giblin, as Commissioners of the Rockland County Board of Elections, Respondents.
Petitioners Vilair Fonvil and Christopher Poole were self-represented. Petitioners Sabrina Charles-Pierre and Loubands Demosthene were represented by Vince Sykes, Esq., Sykes Law Firm, 8 Carberry Court, Pomona, NY 10970-2120.
Petitioners Vilair Fonvil and Christopher Poole were self-represented.
Petitioners Sabrina Charles-Pierre and Loubands Demosthene were represented by Vince Sykes, Esq., Sykes Law Firm, 8 Carberry Court, Pomona, NY 10970-2120.
Paul I. Marx, J.
The following papers were read and considered in these two special proceedings brought under Election Law § 16-102 : (1) by Vilair Fonvil ("Fonvil") and Christopher Poole ("Poole") seeking an order (a) "declaring insufficient, defective, invalid, fraudulent, permeated with fraud, null and void the designating petition filed with the Rockland County Board of Elections, purporting to designate Respondent-Candidates, Sabrina Charles-Pierre ("Charles-Pierre"), Loubands Demosthene ("Demosthene"), Thomas V. Sassone ("Sassone") and Vince F. Sykes ("Sykes"), as candidates for the June 22, 2021 Primary and November 2, 2021 General Elections as a [sic] candidates of the Democratic Party;" and (b) "enjoining, restraining and prohibiting the Respondent-Commissioners of the Rockland County Board of Elections from printing and placing the names of said Respondents-Candidates on the official ballots of the Democratic Party to be used in the June 22, 2021 Primary Election and November 2, 2021 General Election for the Public Offices of the Village of Spring Valley Mayor, Trustees and Village Justice, respectively" (Proceeding #1), and (2) by Charles-Pierre and Demosthene seeking an order (a) "declaring valid, proper, sufficient and legally effective the Designating Petition heretofore filed with Respondent Board of Elections, designating Petitioner, Charles-Pierre, as candidate for the public office of Mayor of the Village of Spring Valley, New York in the Democratic Primary to be held on June 22, 2021 and designating Petitioner Demosthene, as candidate for the public office of Trustee of the Village of Spring Valley, New York in the Democratic Primary to be held on June 22, 2021"; (b) "directing, requiring and commanding the Rockland County Board of Elections to print and/or place name [sic] of Petitioners aforesaid as candidates for the public office of Mayor and Trustee respectively, of the Village of Spring Valley, New York on the official ballots to be used at the Democratic Primary Election to be held on June 22, 2021" ; (c) "enjoining and restraining Respondent Board of Elections from printing, issuing or distributing for use during the Democratic Primary Election to be held on the 22nd day of June 2021, any and all official ballots used in said Primary Election upon which the name [sic] of Petitioners do not appear as candidates for the public office of Mayor and Trustee, respectively of the Village of Spring Valley New York in the Democratic Primary to be held on June 22, 2021", (d) "declaring insufficient, defective, invalid, null and void the designating petition heretofore filed with the Respondent Board of Elections purporting to designate Respondent Candidate Vilair Fonvil as candidate for the public office of Mayor of the Village of Spring Valley New York in the Democratic Primary to be held on June 22, 2021," (e) "directing, requiring and commanding Respondent Board of Elections not to place and/or print the name of Respondent-Candidate Vilair Fonvil as candidate of the Democratic party for the public office of Mayor of the Village of Spring Valley New York in the Democratic Primary to be held on June 22, 2021", and (f) "declaring the designating petition filed with Respondent Board of Elections purporting to designate Respondent-Candidate Vilair Fonvil as a candidate of the Democratic party for the public office of Mayor of the Village of Spring Valley New York in the Democratic Primary to be held on June 22, 2021 to be a legal nullity, and reversing any contrary determination of the Respondent Board of Elections that may have been made or may hereinafter be made." (Proceeding #2);
The Board of Elections ruled that the petitions filed in support of Sykes failed to contain enough valid signatures to allow him to be placed on the ballot. As such, this proceeding is moot as to him.
Petitioner and Respondent-candidates also seek "such other and further relief as to the Court may seem just and proper."
Proceeding #1:
Order to Show Cause to Validate/Verified Petition of Vilair Fonvil and Christopher Poole/Affidavits A-G 1-3
Verified Answer with Counterclaim of Charles-Pierre and Demosthene 4
Letter of Daniel Szalkiewicz, Esq. dated April 12, 2021 5
Rockland County Board of Elections Commissioners’ Joint Affidavit. 6
Proceeding #2
Order to Show Cause/Verified Petition to Validate of Sabrina Charles-Pierre and Loubands Demosthene/Emergency Affidavit of Sabrina Charles-Pierre 7
In addition to the papers submitted, the Court held a hearing on the initial April 9, 2021 return date of the Order to Show Cause in proceeding #1, and on April 14, 2021 in both proceedings. Finally, Fonvil submitted a written closing argument on April 19, 2021. On the Court's own motion, these proceedings are joined for disposition and determination.
Counsel for Sassone and counsel for Charles-Pierre and Demosthene made their oral arguments at the close of the proof. Fonvil requested, and was granted, permission to submit a written closing argument.
Preliminary Matters
There are several threshold issues which the Court must decide prior to reaching the merits of these cases. These issues include whether these matters were timely commenced, whether the Court has jurisdiction over Fonvil in Proceeding #2, Fonvil's standing as an aggrieved candidate based on his prior felony convictions and whether Poole's failure to file general and specific objections bar his petition challenging Sassone's designating petition.
Timeliness
As an initial and dispositive determination, the Court holds that neither of these proceedings was commenced within the time limitations set by Election Law § 16-102(2). Consequently, both proceedings are denied and dismissed.
Election Law § 16-102(2) provides, in relevant part:
A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, except that a proceeding with respect to a petition for a village election shall be instituted within seven days after the last day to file the petition for such village election (emphasis added).
These proceedings involve designating petitions filed by the candidate-petitioners and candidate-respondent each of whom seeks to be placed on the ballot to run for elected office in the primary election for the Democratic Party to be held on June 22, 2021 in the Village of Spring Valley. As such, there can be no dispute that the relevant time period for the filing of these proceedings is seven (7) days from the last day in which the petition could be filed with the Board of Elections. Here, the final day for filing a designating petition to run in the primary in the Village election was March 25, 2021. Thus, special proceedings concerning these Village government positions were required to be filed by April 1, 2021. Fonvil and Poole's petition in proceeding #1 was not filed until April 7, 2021 and Charles-Pierre and Demosthene's petition was not filed until April 9, 2021.
Both Sassone, in a letter appearance by his counsel, Daniel Szalkiewicz, Esq. to the Court dated April 12, 2021, and Charles-Pierre and Demosthene (in the 4th Affirmative Defense of their Answer and Counterclaim) asserted that Fonvil and Poole's petition in proceeding #1 is untimely. Charles-Pierre and Demonsthene's attorney, Sykes, conceded during the hearing that if Fonvil's petition was untimely, so too was their petition in proceeding #2.
The Court notes that Fonvil and Sassone state that the Board of Elections advises prospective candidates that they have 14 days in which to file a special proceeding to challenge its determinations or to validate petitions. See Szalkiewicz letter. Nonetheless, Sassone challenges the timeliness of the proceeding against him. In response, Fonvil contends that a collateral court in this county previously held that a challenge to designating petitions in a Village election is timely if made within 14 days. In this regard, he relies on the unreported decision of the court in Clerina v Eisenbach , [Sup Ct Rockland County Index # 905-2018] rendered on August 3, 2018.
Szalkiewicz appears to be reporting this as a matter of information only. He argues that the Proceeding is untimely.
In Clerina, supra, a proceeding to invalidate the designating petitions of respondents in connection with their candidacy for Village Trustee, Acting Supreme Court Justice Rolf M. Thorsen vacated his own decision and order dismissing the proceeding, sua sponte, based on his view that the court lacked jurisdiction because the matter had not been timely filed. Upon reconsideration, Judge Thorsen vacated the dismissal to address the merits of the parties’ contentions "for the reasons set forth on the record". Judge Thorsen subsequently decided the matter on the merits. While the Court does not have the minutes of the proceeding, the Court believes that those reasons had to do with a directive from then Presiding Justice of the Appellate Division Second Department, the Hon. Alan D. Scheinkman (ret.) that requested that Election Law matters be determined on their merits in Supreme Court even if a procedural infirmity was dispositive of the proceeding. In any event, the absence of any analysis of the timeliness issue in Clerina renders that decision without any precedential or persuasive value.
There are few cases which address the timeliness of proceedings filed to challenge Village designating petitions. Perhaps this is because the Election Law clearly "provide[s] strict deadlines for any legal proceeding that challenges designating petitions or ballot content." Olma v Dale , 306 AD2d 905, 905–06 [4th Dept 2003]. See also DiCaprio v Rockland County Board of Elections , 33 Misc 3d 217 [Sup Ct, Rockland County 2011].
In one of the few recorded Appellate Division cases which have addressed the issue of when a party must file a proceeding to challenge a petition to run for village office, the higher court held:
Persons seeking to judicially challenge an independent nomination for public office must do so by means of a proceeding pursuant to the Election Law ( Election Law § 16–102[1] ). The only time limitation contained therein which could apply to a challenge to an untimely filed certificate of acceptance is the 7-day provision of Election Law § 16–102(2), which runs from the "last day to file the petition for such village election or independent nomination". Baird v Ness , 109 AD2d 975 [3rd Dept 1985].
In Baird, supra , Supreme Court granted petitioner's application to remove a candidate's name from the ballot despite the fact that the challenge to the candidacy was not made within the requisite time period. The appellate court reversed, holding that since the proceeding was not timely filed, the Court had no jurisdiction over the matter. While Baird involved an independent nominating petition, the same rule applies to challenges to party designating petitions.
More recently, in DiCaprio, supra, Acting Supreme Court Justice Victor A. Alfieri, Jr. [ret.], applied the seven day limitation to a challenge to a village designating petition where the proceeding was instituted ten days after the last day to file petitions for the village election. This Court agrees that the application of the seven day time limitation to individuals seeking to challenge designating petitions is required by statute.
Thus, because both proceedings were filed well after the seven day time period authorized by the Election Law, they are untimely and must be, and hereby are, dismissed.
Service of Proceeding #2 on Fonvil
Although not filed prior to the hearing date, Charles-Pierre and Demosthene submitted an affidavit of service attesting that on April 10, 2021, Charles Pierre served the Order to Show Cause on Fonvil and the Board of Elections via First Class Mail.
Fonvil asserts that he was not properly served because Charles-Pierre, as a party, cannot serve papers. The Court agrees. CPLR § 2103(a) clearly states that "papers may be served by any person not a party". Thus, the Court lacks jurisdiction over Fonvil in Proceeding #2, requiring dismissal.
Addressing the Merits
The Court addresses the merits of the issues raised in both proceedings simultaneously given the substantial overlap in the forms of relief sought, notwithstanding that these matters are dismissed as untimely. This is pursuant to the direction of the Hon. William F. Mastro, Acting Presiding Justice of the Appellate Division, Second Department. In a letter directive sent to the District Administrative Judges throughout the Second Department dated March 12, 2021, Justice Mastro instructed: "please make sure that the justices within your jurisdiction reach and determine the merits of the proceedings even if they have decided to dismiss the proceeding on a purely procedural ground". Hence, the Court proceeds to the substantive issues.
A copy of Justice Mastro's letter was provided to all parties because the letter also set the schedule for the filing and hearing of appeals in Election Law matters.
Fonvil's Standing as an Aggrieved Candidate
Charles-Pierre and Demosthene raised Fonvil's standing to bring this proceeding in their Answer. As has been widely publicized, in a special proceeding brought by Fonvil, this Court determined that he is disqualified from seeking elected office in New York State under Public Officers Law § 3(1-a)(i) based on his convictions of various state based felonies. Fonvil v Jasmin , 2021 NY Slip Op 21106 [Sup Ct Rockland Cty 2021]. The Court adopts its own reasoning and holding from that matter in this proceeding. As such, Fonvil is ineligible to be a candidate for Mayor in the Village of Spring Valley.
Fonvil brought this proceeding in both his capacity as an aggrieved candidate and as a citizen objector. Notably, Charles-Pierre and Demosthene did not challenge Fonvil's standing as a citizen-objector. Therefore, he may proceed in that capacity.
Poole's Failure to File General and Specific Objections to Sassone's Petition
On the initial return date of the Order to Show Cause in Proceeding #1, Sassone, who was then self represented, asserted that Poole could not challenge his candidacy because he had not filed either General or Specific Objections to his petition. On the hearing date, Sassone appeared by counsel, Daniel Szalkiewicz, Esq., who upon inquiry by the Court, withdrew that defense.
Fonvil and Poole's Challenge to Sassone's Petitions Based on Alleged Notary Improprieties
Fonvil and Poole challenge Sassone's petitions, asserting that Sassone, a notary, failed to administer a proper and complete notary oath to the individuals who signed the petitions which he witnessed in his capacity as a notary. They contend that Sassone falsely stated on the petitions that the voters signed the petitions in his presence as individuals "who, being by me duly sworn". As a result, Fonvil and Poole argue that the pages on which Sassone obtained signatures are permeated with fraud, rendering them invalid. They note that Sassone submitted 294 signatures which were upheld by the Board of Elections, well in excess of the 128 signatures required to be placed on the ballot. But, they argue, since 191 of the signatures were improperly notarized by Sassone and must be disqualified, he lacks the requisite number of signatures to qualify to appear on the ballot.
During the hearing, rather than call numerous witnesses to testify as to the procedure employed by Sassone in securing signatures on his petitions, the parties stipulated that if called, the witnesses would testify that Sassone did not administer a formal oath to any voter who signed his petition sheets. Based on the stipulation, none of the intended witnesses testified.
Sassone testified that he did administer an oath to those individuals where the person who obtained signatures for other candidates was not an enrolled party member. That is not the issue before the Court at this time.
Sassone testified that he could not recall any specific voter but that he followed a general routine in obtaining signatures on his petitions. He testified that his general procedure was to: (1) introduce himself to prospective voters whose addresses he had obtained from a "walking list" which he created by downloading a list of voters enrolled in the Democratic Party he sorted by address, (2) confirm with the voter that he/she/they were the person indicated on the list, (3) advise the person that he was running for Village Justice and would be "honored" if he/she/they signed the petition to allow him to get on the ballot, (4) show the voter the walking list and (5) watch the person sign, date and print his/her/their address on the sheet.
Fonvil and Poole submit that the procedure used by Sassone was improper and warrants the disqualification of all signatures obtained and witnessed by him as a notary on his petitions. In support of that contention, they rely on numerous decisions which pre-date 2003. These decisions, Matter of Leahy v O'Rourke , 307 AD2d 1008 [2nd Dept 2003] ("notary did not administer an oath in any manner required by law"), Matter of Helfand v Meissner 22 NY2d 762 [1968] (signatures invalid where notary had not taken "the oaths of the signators or obtained any statement from them"), Matter of Merrill v Adler , 253 AD2d 505 [2nd Dept 1998] (notaries public neither took oaths of the signators nor obtained any statements from them), Matter of Zunno v Fein , 175 AD2d 935 [2nd Dept 1991] (signatures which were witnessed by notaries public who had not taken the oaths of the signators nor obtained any statements from them as to the truth of the statements to which they subscribed their names), and Matter of Andolfi v Rohl , 83 AD2d 890 [2nd Dept 1981] (signatures obtained by notary who failed to "meet even the minimum standard of compliance" stricken, signatures where notary "substantially complied" upheld), all involve situations where the notary failed to meet even the minimum act of ensuring that the signer knew what he/she/they were signing. As such, these cases are inapposite to the case at bar.
More recently, the Appellate Division held in Dwyer v Pellegrino , 164 AD3d 1088 [2nd Dept 2018] that no particular form of oath is required. The Court stated:
A notary public who collects signatures for a designating petition pursuant to Election Law § 6-132 (3) need not administer any particular form of oath to the signatories, nor must he or she ask the signatories to formally ‘swear’ " ( Matter of Bonner v Negron , 87 AD3d 737, 738 [2011] [citations omitted]; see Matter of Nolin v McNally , 87 AD3d 804, 805-806 [2011] ). "Rather, it is sufficient that the notary administer an oath which is calculated to awaken the conscience and impress the mind of the person taking it in accordance with his [or her] religious or ethical beliefs or obtain a statement from each of the signatories as to the truth of the matter to which they subscribed their names " ( Matter of Bonner v Negron , 87 AD3d at 738 [internal quotation marks, brackets and citations omitted]; see Election Law § 6-132 [3] ; Matter of Nolin v McNally , 87 AD3d at 806 ; Matter of Imre v Johnson , 54 AD3d 427, 428 [2008] ). Dwyer, 164 AD3d at 1088-1089. (emphasis added).
Here, although Sassone did not administer a formal oath to the signors, the content of the speech he gave when seeking to obtain signatures was sufficient to alert the individual signors to the fact that what he/she/they were signing was a matter of import and should be signed only by individuals who were registered voters who resided at the address displayed on the walk sheet. In this Court's opinion, Sassone's explanation of who he was, what office he was seeking, and what he wanted the voter to do, followed by his verification of the name, address and date was sufficient to alert the voter that the act of signing the petition was a significant act, not to be undertaken lightly. This is all that is required.
Finally, the Court rejects Fonvil and Poole's allegation that Sassone's petitions are rife with fraud based on the alleged notarial defects, and should, therefore be disqualified. As stated by the Court in Bonner v Negron, supra , the law is clear that "[a]s a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with fraud". Bonner, 87 AD3d at 739. The Court continued:
Although [candidate] may not have acted in strict compliance with Election Law § 6-132 (3) in collecting six of the signatures, "it has not been established that he acted fraudulently or did anything that would warrant invalidating the entire designating petition" ( Matter of Nolin v McNally , 87 AD3d 804, 806 [3d Dept 2011] ; see Matter of Berney v Ragusa , 76 AD3d 647 [2010] ; Matter of Harris v Duran , 76 AD3d 658 [2010] ; Matter of McRae v Jennings , 307 AD2d 1012 [2003] ). There has been no finding that the subject six signatures were not authentic or that [candidate] failed personally to witness the subscription of any of the signatures to which he attested ( cf. Matter of Haskell v Gargiulo , 51 NY2d 747 [1980] ; Matter of Cirillo v Gardiner , 65 AD3d 638 [2009] ; Matter of Tapper v Sampel , 54 AD3d 435 [2008] ). Moreover, any irregularities relating to the designating petition did not rise to the level at which it could be said that the designating petition was permeated with fraud. Bonner v Negron , 87 AD3d 737, 739.
For the reasons stated, if reached, Fonvil and Poole's challenge to Sassone's petition on the basis of alleged fraud and/or improper notary would be denied.
Fonvil's Fraud Challenge to Charles-Pierre and Demosthene's Petitions
Fonvil challenged the designating petitions of Charles-Pierre and Demosthene, asserting that due to claimed irregularities with respect to the witnessing of signatures, comprising fraud, the entire petition should be disqualified. Fonvil asserts that in some cases one candidate or the other or a supporter, Marie Zamor, procured signatures on signing sheets which were later witnessed in the "Statement of Witness" portion of the sheet by someone else.
In support of this claim, Fonvil called Charles-Pierre, Demosthene and Zamor as witnesses. Fonvil also called several voters who signed the designating petitions to testify as to the circumstances under which he/she/they signed.
Summarized, the testimony of the witnesses revealed that on some occasions Charles-Pierre, Demosthene, Sassone and another Village Justice candidate, Christopher Exias, traveled throughout neighborhoods in search of signatures, sometimes with Zamor in attendance. Charles-Pierre, Demosthene and Zamor testified that in an effort to maintain social distancing during the COVID-19 pandemic, the group refrained from approaching doorways en masse. Rather, at certain doors, some of the candidates would go to the door and others would stand by, waiting to move forward to request to speak with the voter and obtain a signature. The testimony revealed that on some occasions, Charles-Pierre or Zamor obtained a signature while Demosthene watched from as much as 20 feet away and that Demosthene would later sign the "Statement of Witness". Fonvil asserts that it was improper for Demosthene to sign the Statement of Witness unless he presented the petition to the voter and the voter signed directly in front of him. He contends that Demosthene observing from a safe distance and then subscribing his name as witness created irregularities that permeated the process such that the entire petition must be disallowed.
In support of his claims, Fonvil relies heavily on the testimony of 3 voters, Aja S. Lane, Paula Losier and Betty Emile, as well as Zamor. While the testimony of Lane established that her signature is invalid and the Court held as such at the hearing, the testimony of Losier and Emile was less clear and did not meet the burden of proof required to disqualify a candidate on the basis of fraud. Losier's testimony was to the effect that Charles-Pierre asked her to sign the petition and that she could not recall ever having seen Demosthene, although she admitted that others might have been present. Demosthene, however, testified that he saw Losier sign her name. Simply put, given the equivocal proof, Fonvil has not met his burden with respect to this voter.
Ms. Lane testified at the hearing that when the candidates came to her home to obtain her signature, she was not dressed. As a result, she remained in the kitchen while her mother brought her the petitions to sign. She stated that only her head/face was visible at times. On this testimony, the Court disallowed Ms. Lane's signature on Charles-Pierre and Demosthene's petition. That signature will not be counted in determining whether Charles-Pierre and Demosthene have enough signatures to qualify.
Betty Emile also testified that Charles Pierre and Zamor, who is her co-worker, came to her home to obtain her signature. On direct examination, she testified that she never saw Demosthene, but on cross examination, she stated that she was not paying attention to whether anyone else was nearby. Again, this proof was equivocal. As the trier of fact, I credit the testimony of Demosthene to the effect that he witnessed every signature for which his name appears as attesting witness on the petitions. In any event, Ms. Emile's signature had already been invalidated by the Board of Elections so even if the Court were to disqualify her signature, the count would remain the same.
The law is clear that to establish fraud of the type that warrants the disqualification of a candidate for office, the petitioner must do so by clear and convincing evidence.
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 AD3d 887, 888, 991 N.Y.S.2d 666 [2014] [internal quotation marks and citations omitted], lv. dismissed 23 NY3d 1045, 992 N.Y.S.2d 781, 16 N.E.3d 1260 [2014], lv. denied 24 NY3d 901, 2014 WL 4345668 [2014] ; accord Matter of Mattice v. Hammond, 131 AD3d 790, 790, 15 N.Y.S.3d 866 [2015] ; Matter of Vincent v. Sira, 131 AD3d 787, 788, 14 N.Y.S.3d 834 [2015], lv. denied 25 NY3d 914, 2015 WL 5010176 [2015] ). Fatata v Phillips , 140 AD3d 1295, 1295–96 [3rd Dept 2016].
Considering all of the evidence adduced and crediting the witness’ testimony as truthful, the evidence falls far short of establishing that either Charles-Pierre or Demosthene engaged in fraudulent activities such that their petitions should be rejected. Simply put, there is no requirement that the individual who attests as witnessing the signatures be within a specified distance of the signer or be the person who handed the petition to be signed to the signer. All that is required is for the person stating that he/she/they saw the signature affixed to the petition actually see it affixed. Demosthene testified, credibly, as did Charles-Pierre, as to the manner in which signatures were obtained.
Thus, I find that neither Charles-Pierre nor Demosthene engaged in any unlawful activity associated with the gathering of signatures or submission of their designating petitions. Consequently, even if Fonvil's petition was not dismissed as untimely, the Court would deny and dismiss his petition seeking to invalidate on the basis of alleged fraud by the candidates, Charles-Pierre or Demosthene. As stated by the Court in Fatata, supra , "petitioners failed to establish by clear and convincing evidence that [the candidate] "acted fraudulently or did anything that would warrant invalidating the entire designating petition". Fatata v Phillips , 140 AD3d at 1296-1297.
Fonvil's Challenge to Individual Signatures
Finally, in addition to the challenges raised above, Fonvil raised challenges to 25 individual signatures which appear on the designating petitions of Charles-Pierre and Demosthene. In most instances, Fonvil challenged whether the signature sufficiently corresponded to the signature on file with the Board of Elections registration card. In other instances, he contended that the signature or date had been altered or that the address listed on the petition was not the same as listed on the registration card. Each challenge will be addressed in the order presented.
While candidates and lawyers practicing Election Law often complain that the signatures on petitions should be disqualified because they do not "match" the signature on the voter registration card maintained by the Board of Elections, the law does not require a "match". Rather, the law requires that the signature "reasonably correspond" to the signature on the registration record. See generally, Mondello v Nassau County Board of Elections , 6 AD3d 18 [2nd Dept 2004]. See also Forman v Haight, 63 Misc 3d 803 [Sup Ct Dutchess County 2020].
It is against this backdrop that the Court evaluated the signatures challenged at the hearing. For the sake of the appellate record, the Court reiterates the findings stated at the hearing.
| Sheet | Line # | Voter | Challenge | Valid/Invalid |
| 1 | 8 | Berthide Gerard | not legible | Valid |
| 1 | 9 | Aja S. Lane | not the same signature | Invalidated above |
| 1 | 12 | Edwige Clerie | incorrect address | Valid |
| 1 | 14 | Esther D. Roache | not the same signature | Valid |
| 1 | 17 | Karine N. McDonald | does not match | Valid |
| 2 | 1 | Lizette Aponte | not the same name | Valid |
| 2 | 2 | Skyler Gabriel | signature altered/no signature | Valid |
| 2 | 14 | Sosa K. Kurian | not the same signature | Valid |
| 4 | 9 | Vladimir Joseph | printed on petition | Valid |
| 4 | 10 | Clara Jean | printed on petition | Valid |
| 5 | 1 | signature not legible | Valid | |
| 5 | 14 | Marilyn Alexander Smith | signed Marilyn Smith | Valid |
| 5 | 16 | Eketia Jean-Baptiste | signature does not match | Valid |
| 6 | 12 | (no name stated) | date altered | Valid |
| 6 | 14 | Teasia Alston | address different | Valid |
| 6 | 19 | Joyce T. Blackwood | address different | Valid |
| 7 | 4 | Abrigaelle P. Toussaint | first name only | Valid |
| 7 | 5 | (no name stated) | signature altered | Valid |
| 7 | 8 | Merlyne Cilius | not the same name | Valid |
| 7 | 11 | "Manuel" Sawhney | not the same name | Valid |
| 14 | 3 | Jotasha A. Davis | signature does not match | Valid |
| 14 | 5 | Marie J. Lauture | printed | Board of Elections invalidated previously |
| 15 | 5 | Gamaliel Rosado | challenge unclear | Valid |
| 16 | 11 | Samer G. Busat | not of party | BOE agrees should be Invalid |
| 22 | 2 | Fanet St. Jean | different spelling of Fanet | Valid |
"No name stated" means that Fonvil did not state the voter's name in the objection specifications.
Thus, of the 25 challenges asserted, the Court denied 23, resulting in a net loss of 2 signatures to Charles-Pierre and Demosthene. The petitions therefore have 157 valid signatures, far more than the 128 required. As such, the challenge to the petition is denied.
Summary of Determinations
For the reasons set forth above, it is ORDERED that Proceeding #1 is dismissed as untimely, and it is further
ORDERED that Proceeding #2 is dismissed as untimely and because it was not properly served.
The foregoing constitutes the Decision and Order of the Court.