Opinion
Index No. 610306/2023 MOTION SEQ. Nos. 001 002
05-03-2023
CATHERINE L. STARK, Candidate-Aggrieved, Petitioner, v. GREGORY L. WILLIAMS, Candidate, And BETTY MANZELLA AND JOHN ALBERTS, Commissioners constituting the Suffolk County Board of Elections, Respondents.
Unpublished Opinion
MOTION DECISION
PRESENT: HON. JERRY GARGUILO SUPREME COURT JUSTICE.
DECISION AFTER HEARING, ALL PARTIES VIA NYSCEF (FULL PARTICIPATION RECORDED)
JERRY GARGUILO JUDGE.
In a prior Short Form Order dated May 1, 2023, this Court determined that the issue of personal jurisdiction of Respondent-Candidate, Gregory L. Williams is effective, thereby finding jurisdiction of the Court to preside. Respondent- Candidate now. in essence, seeks to renew and reargue that determination as that issue was specifically addressed in the Courts earlier Short Form Order.
In the matter of Mendez v. Kyung Yoo, 23 A.D.3d 354, 806 N.Y.S.2d 67, the Appellate Division, Second Department, held that an improperly executed affidavit of service is a mere irregularity and not a jurisdictional defect. Citing, Mrwik v. Mrwik, 49 A.D.2d 750. That Court further held that "The crucial question is whether or not (the) Defendant was in fact served with process." In the matter at bar. the Court finds in the affirmative. Therefore, upon granting renewal and allowing reargument. the Court sustains its prior order on the issue of service and jurisdiction.
The Petitioner seeks an order invalidating the Respondents petitions claiming they are permeated with fraud. Permeated is defined in the Oxford Language Dictionary as "'spread throughout (something)... the aroma of soup permeated the air."
The proper evidentiary standard for fraud, is that of clear and convincing evidence. As per the New York Pattern Jury Instructions, this means evidence that satisfies the fact finder that there is a high degree of probability that there was fraud. A party who must establish his case by clear and convincing evidence must satisfy the fact finder that the evidence makes it highly probable that what is claimed is what actually happened.
On May 2, 2023, the Court conducted a hearing to hear the issue of whether or not the designating petitions of Gregory L. Williams are to be rejected as the same are "permeated with fraud." In its Short Form Order dated May 1, 2023, the Court noted the following:
In anticipation of the hearing, all parties may note the determination of the Appellate Division, Second Department, In the Matter of Charles Ragusa et ah, v. Sandra Roper, et al, 286 A.D.2d 516, 729 N.Y.S.2d 647 (Mem), 2001 N.Y. Slip Op. 06924 where the court determined:
As a general rule, a candidate's designating petition will be invalidated on the ground that some signatures have been obtained by fraud only if there is a showing that the entire designating petition is permeated with that fraud (Matter of Ferraro v. McNab, 60 N.Y.2d 601. 603; Matter of Pros kin v. May, 40 N.Y.2d 829, 830; Matter of Aronson v. Power, 22 N.Y.2d 759, 760). However, even where the designating petition is not permeated with fraud, when the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated (see, Matter of Flower v. D'Apice, 104 A.D.2d 578, aff'd 63 N.Y.2d 715; Matter of Layden v. Gargiulo, 77 A.D.2d 933, 934; Matter of MacDougall v. Board of Elections, 133 A.D.2d 198).
The Court directs the parties and witnesses to appear for a hearing before it on Tuesday May 2nd, 2023, at 11 a.m. to present proofs.
Four witnesses were produced by the Candidate-Aggrieved, (Petitioner) Catherine L. Stark: (1) Catherine Simicich (2) Peter Young; (3) Daniel Bruno; and (4) Kathleen Markowski. It is undisputed that the candidate, Gregory L. Williams, procured the signatures of the four witnesses. Mr. Williams also testified. It is also undisputed that his wife, Karen A. Williams executed the "signature of witness" line on the petitions procured by her husband, the candidate, Gregory L. Williams. Two of the signatories, Peter Young and Kathleen Markowski could not offer testimony that the witness, Karen A. Williams, was in a position to be an actual witness to their affixing their signatures. Kathleen Markowski testified that Mr. Williams came to her front door presenting a petition and seeking her signature. She conceded that the signature was indeed her signature. However, a person who she believes is Karen A. Williams was away from her front porch/door seated in a car. The allegation is that Ms. Williams could not be an actual witness to her signing and certainly could not comply with the requirements that she took the steps to identify Ms. Markowski "to be the individual who signed the sheet." Peter Young also testified that he was handed the petition by Mr. Williams. This occurred at Mr. Williams' place of business, a bicycle shop. He did not recognize the witness, Karen A. Williams in his presence as he affirmed his signature. The two remaining witnesses Daniel Bruno and Catherine Simicich were both able to testify that the witness. Karen A. Williams, was in the vicinity at the time Mr. Williams presented the petition for their signatures. Parenthetically, it was determined that the witness, Karen A. Williams, was present at the candidates place of business but situated at a mezzanine level when Mr. Young offered his signature. The Court is perplexed why neither party called the Respondent's wife, Karen Williams, as a witness. Additionally, neither party put the other on notice of an intent to seek a missing witness admonition.
The issue for the Court is whether the record shows a permeation of fraud under the Appellate Division-Second Department's case precedents so as to invalidate the Nominating Petition of Respondent Candidate Williams.
In Matter of Hay good v. Hardwick, 110 A.D.3d 931, 973 N.Y.S.2d 711 (2d Dept. 2013), the County Supreme Court invalidated candidate Hardwick's designating petitions on the ground of permeating fraud:
Upon denying the candidate's motion, and after a hearing, the Supreme Court properly granted the petition to invalidate the independent nominating petition. A candidate's designating petition or independent nominating petition 'will be invalidated on the ground of fraud if there is a showing that the entire
petition is permeated with fraud' (Matter of Felder v. Storobin, 100 A.D.3d 11, 15. 953 N.Y.S.2d 604; see Matter of Lavine v. Imbioto, 98 A.D.3d 620, 620, 949 N.Y.S.2d 505; Matter of Volenti v. Bugbee, 88 A.D.3d 1056, 1057, 930 N.Y.S.2d 319). "Absent permeation with fraud, a designating [or independent nominating] petition may be invalidated where the candidate has participated in or is chargeable with knowledge of the fraud' (Matter of Felder v. Storobin, 100 A.D.3d at 15-16, 953 N.Y.S.2d 604; see Matter of Lavine v. Imbroto, 98 A.D.3d at 620, 949 N.Y.S.2d 505; Matterof Valenti v. Bugbee, 88 A.D.3d at 1057, 930 N.Y.S.2d 319). Here, the facts adduced at the hearing warranted the Supreme Court's determination that the candidate, who 'was inextricably intertwined in the petitioning process,' was chargeable with knowledge of the fraudulent manner in which certain signatures were procured (Matter of Villafane v. Caban, 104 A.D.2d 579, 580, 479 N.Y.S.2d 282; see Matter of Cirillo v. Gardiner, 65 A.D.3d 638, 639, 884 N.Y.S.2d 260; Matter of Buchanan v. Espada, 230 A.D.2d 676, 678-679, 646 N.Y.S.2d 680; Matter of MacDougall v. Board of Elections of City of New York, 133 A.D.2d 198. 518 N.Y.S.2d 840; Matter of Adams v. Klapper, 182 Misc.2d 51, 53, 696 N.Y.S.2d 758, affd. 264 A.D.2d 696, 695 N.Y.S.2d 295)... (emphasis added)
However, '[e]ven when the designating petition is not permeated with fraud, the petition generally will be invalidated where the candidate has participated in or is chargeable with knowledge of the fraud.' Matter of Volino v. Calvi, 87 A.D.3d at 658, 928 N.Y.S.2d at 470; see Matter of Tapper v. Sampel, 54 A.D.3d 435, 862 N.Y.S.2d 610 (2d Dep't 2008)]; Matter of Drace v. Sayegh, 43 A.D.3d at 482, 844 N.Y.S.2d at 314; Matter of Leonard v. Pradhan, 286 A.D.2d 459, 729 N.Y.S.2d 523 (2d Dep't 2001).
The Court considered and applied the evidentiary rule of circumstantial evidence to the facts adduced at the hearing. As noted in the Pattern Jury Instructions, "circumstantial evidence is evidence of a fact which does not directly prove a fact in dispute, but which permits a reasonable inference or conclusion that the fact exists... Those facts which form the basis of an inference must be proved and the inference to be drawn must be one that may be reasonably drawn." Clearly, the evidence adduced establishes that Mrs. Williams, the "witness," was always in the general vicinity of the places where the signatures were obtained. However, with the exception of witness (Bruno). Ms. Williams was not in a position to witness the actual act of signing.
Here as in the Matter of Haygood v. Hardwick 110 A.D.3d 931. 973 N.Y.S.2d 711, the court finds the facts adduced at the hearing warrants the Court's determination that Gregory L. Williams was "inextricably intertwined in the petitioning process," and was chargeable with knowledge of the fraudulent manner in which certain signatures were procured.
The Court is mindful that the omission in all probability was caused by inexperience in the process. Nonetheless, the Court is duty-bound to follow the law. The Petition of Catherine L. Stark, Candidate-Aggrieved is GRANTED and the designating petition of Respondent-Candidate Williams is invalidated.
The foregoing constitutes the decision and ORDER of this Court.