Opinion
554.1 CAE 21-00644
05-19-2021
In the Matter of the Application of Howard GRYNSPAN, Petitioner-Respondent, v. Joel MOORE, Respondent-Appellant, and Erie County Board of Elections, Respondent-Respondent.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR RESPONDENT-APPELLANT. VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PETITIONER-RESPONDENT.
HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK T. HOUSH OF COUNSEL), FOR RESPONDENT-APPELLANT.
VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to Election Law § 16-102 seeking to invalidate the designating petition of Joel Moore (respondent) as a Democratic candidate for the office of City Court Judge, City of Buffalo. Respondent appeals from an order that, inter alia, granted the petition and invalidated his designating petition.
Initially, we note that respondent's notice of appeal is premature because it was filed prior to the service of a copy of the order from which the appeal was taken with notice of entry (see Nicotera v. Allstate Ins. Co. , 147 A.D.3d 1474, 1474-1475, 47 N.Y.S.3d 830 [4th Dept. 2017], lv denied 29 N.Y.3d 907, 2017 WL 1843337 [2017] ; Matter of Danial R.B. v. Ledyard M. , 35 A.D.3d 1232, 1232, 827 N.Y.S.2d 799 [4th Dept. 2006] ; see generally CPLR 5513 [a] ). Nevertheless, in the exercise of our discretion and in the interest of judicial economy, we will address the merits of the appeal (see CPLR 5520 [c] ; Nicotera , 147 A.D.3d at 1475, 47 N.Y.S.3d 830 ; Danial R.B. , 35 A.D.3d at 1232, 827 N.Y.S.2d 799 ).
Contrary to respondent's contention, Supreme Court properly invalidated his designating petition on the basis of fraud. "As 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 that fraud" ( Matter of Buttenschon v. Salatino , 164 A.D.3d 1588, 1589, 83 N.Y.S.3d 780 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Perez v. Galarza , 21 A.D.3d 508, 508-509, 800 N.Y.S.2d 574 [2d Dept. 2005], lv denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 [2005] ). "Even when the designating petition is not permeated with fraud, however, when the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated" ( Buttenschon , 164 A.D.3d at 1589, 83 N.Y.S.3d 780 [internal quotation marks omitted]; see Perez , 21 A.D.3d at 509, 800 N.Y.S.2d 574 ). Here, petitioner established by clear and convincing evidence that respondent, as a subscribing witness, attested that he had witnessed certain signatures on the designating petition even though third parties had signed the petition on behalf of the person named as the signatory on the designating petition (see Matter of Burman v. Subedi , 172 A.D.3d 1882, 1883, 101 N.Y.S.3d 523 [3d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2402168 [2019] ; Matter of Valenti v. Bugbee , 88 A.D.3d 1056, 1058, 930 N.Y.S.2d 319 [3d Dept. 2011] ) and that respondent attested to one signature although he was not "in the presence of the signator[y] when [she] signed the [designating] petition" ( Matter of McHale v. Smolinski , 133 A.D.2d 520, 520, 519 N.Y.S.2d 890 [4th Dept. 1987] ; see Election Law § 6-132 [2] ; Matter of Tani v. Luddy , 32 Misc. 2d 53, 55, 221 N.Y.S.2d 314 [Sup. Ct., Westchester County 1961] ). "Although we do not ascribe any nefarious motive to [respondent's] conduct, his actions still constituted a fraud" ( Valenti , 88 A.D.3d at 1058, 930 N.Y.S.2d 319 ). Thus, the court properly determined that respondent's participation in those acts warranted invalidation of the designating petition (see Burman , 172 A.D.3d at 1883-1884, 101 N.Y.S.3d 523 ; Buttenschon , 164 A.D.3d at 1589, 83 N.Y.S.3d 780 ; see also Matter of Flower v. D'Apice , 104 A.D.2d 578, 578, 479 N.Y.S.2d 281 [2d Dept. 1984], affd 63 N.Y.2d 715, 479 N.Y.S.2d 982, 468 N.E.2d 1119 [1984] ). We have reviewed respondent's remaining contentions and conclude that none warrants reversal or modification of the order.