Opinion
001249/2020
03-09-2020
In the Matter of the Application of George KALAJ and Lashanta Stephenson, Petitioners, v. James A. LOFRANCO, James J. Mullaney, and Sue Anne M. Vogelsberg, Respondents, and The Orange County Board of Elections and the Village of South Blooming Grove Village Clerk, For an Order Pursuant to Sections 16-100, 16-102 and 16-116 of the election Law, declaring invalid the Independent nominating petitions purporting to nominate the Respondents as candidates in the Village of South Blooming Grove Election to be held on March 18, 2020.
DANIEL S. SZALKIEWICZ & ASSOCIATES, P.C., Attorney for Petitioners, 325 West 38th Street, Suite 810, New York, New York 10018 CATANIA, MAHON & RIDER, PLLC, Attorney for Respondent, Village Clerk of the Village of South Blooming Grove, One Corwin Court, Newburgh, New York 12550 LANGDON C. CHAPMAN, ESQ., County Attorney, Attorney for Respondent, County of Orange, 255 Main Street, Goshen, New York 10924 LAWRENCE A. GARVEY & ASSOCIATES P.C., Attorneys for Respondents, James A. LoFranco, James J. Mullaney & Sue Anne M. Vogelsberg 50 Main Street, Suite 390, White Plains, New York 10606
DANIEL S. SZALKIEWICZ & ASSOCIATES, P.C., Attorney for Petitioners, 325 West 38th Street, Suite 810, New York, New York 10018
CATANIA, MAHON & RIDER, PLLC, Attorney for Respondent, Village Clerk of the Village of South Blooming Grove, One Corwin Court, Newburgh, New York 12550
LANGDON C. CHAPMAN, ESQ., County Attorney, Attorney for Respondent, County of Orange, 255 Main Street, Goshen, New York 10924
LAWRENCE A. GARVEY & ASSOCIATES P.C., Attorneys for Respondents, James A. LoFranco, James J. Mullaney & Sue Anne M. Vogelsberg 50 Main Street, Suite 390, White Plains, New York 10606
Craig Stephen Brown, J.
Petitioners George Kalaj and Lashanta Stephenson move for a judgment:
1. Declaring insufficient, defective, invalid, null, and void the independent nominating petition filed with the Village of South Blooming Grove Village Clerk purporting to designate respondent James A. LoFranco as a candidate for the Mayor of the Village of South Blooming Grove in the village election to be held on March 18, 2020;
2. Declaring insufficient, defective, invalid, null, and void the independent nominating petition filed with the Village of South Blooming Grove Village clerk purporting to designate respondent James J. Mullaney as a candidate for the Trustee of the Village of South Blooming Grove in the village election to be held on March 18, 2020;
3. Declaring insufficient, defective, invalid, null, and void the independent nominating petition filed with the Village of South Blooming Grove Village clerk purporting to designate respondent Sue Anne M. Vogelsberg as a candidate for the Trustee of the Village of South Blooming Grove in the village election to be held on March 18, 2020; and
4. Enjoining, restraining, and prohibiting The Orange County Board of Elections and the Village of South Blooming Grove Village clerk from printing and placing the name of said respondents-candidates on the official ballots to be used at the March 18, 2020 village election.
Respondents James A. LoFranco and Sue Anne M. Vogelsberg move for an order, pursuant to Election Law § 16-102, CPLR 3211(a)(7), and CPLR 3016, dismissing the petition against them for, inter alia , failure to state a cause of action and failure to plead with particularity. It is noted that respondent James J. Mullaney passed away during the course of the instant proceedings.
The following papers were read:
Order To Show Cause - Verified Petition - Annexed Exhibits 1-3
Verified Answer with Affirmative Defenses and Counterclaims 4
Verified Answer of Orange County Board of Elections 5
Notice of Motion - Affirmation of Lawrence A. Garvey, Esq. 6 - 8
Annexed Exhibits
March 4, 2020 Correspondence of Daniel S. Szalkiewicz, Esq. 9
March 4, 2020 Correspondence of Brittany C. Cordero, Esq. 10
Upon the foregoing papers and upon the testimony and evidence presented at the hearing held on March 5, 2020, it is hereby ORDERED that the petitioners' application is denied and the petition is dismissed. In addition, the respondents' counterclaims are dismissed. All other requested relief is denied.
The claims asserted by petitioner Lashanta Stephenson were dismissed in open court on March 5, 2020. The Honorable Robert A. Onofry ordered that Petitioners appear for depositions on March 4, 2020. When the parties appeared before This Court on March 4, 2020, the Court ordered that depositions be continued on March 5, 2020, if they were not completed on Match 4, 2020. It is undisputed that petitioner Lashanta Stephenson failed to appear, without excuse, for the Court ordered deposition on March 4, 2020 and March 5, 2020. Accordingly, the respondents' motion to dismiss the claims of Lashanta Stephenson was granted.
With respect to petitioner George Kalaj, a review of the examination before trial transcript entered into evidence as Court Exhibit 1 reveals that petitioner Kalaj never saw or read the petition filed with the Court (Examination Before Trial Transcript of George Kalaj , pages 17 and 24). Further, Mr. Kalaj testified under oath that he had never seen or read the Village Independent Nominating Petitions that he is alleging to be fraudulent (Examination Before Trial Transcript of George Kalaj , page 31). In addition, while Mr. Kalaj is alleging "signature fraud", he testified that: 1) he had never seen the signatures he is challenging, and 2) he does not have any knowledge, other than from his attorney, of any fraud (Examination Before Trial Transcript of George Kalaj , pages 40-42). However, attached to the moving papers is a list of specific objections with a reference key, identifying with some minimal specificity the basis for the objection(s). The specifications of objections were sufficiently detailed to apprise the respondent candidates of the allegations made against the designating petition. As such the respondents' motion to dismiss the claims of George Kalaj is denied.
Petitioner George Kalaj seeks to invalidate the Village Independent Nominating Petition filed by respondent-candidates. Petitioner alleges that the Nominating Petition is "permeated with fraud" in that it contains false subscribing witness statements and fraudulent signatures. Petitioner, at the time of hearing, limited its allegations to one sheet of the Nominating Petition witnessed by respondent James A. LoFranco.
Petitioner George Kalaj called two witnesses: Louise Vandermark and Sonia Ayala. Louise Vandermark established the foundational requirements for the original designating petitions being received into evidence, as well as a Voter Registration Information Report. She further opined that the signature on line 9 of sheet 1 would be invalidated by the Board of Elections because it was modified without being initialed. Petitioner attempted to call respondent, James A. Lofranco. Mr. Lofranco was not present in court, he had not been served with a subpoena to appear in court, and the Order to Show Cause did not request, nor did the Court require, his personal appearance. Respondents' counsel advised the Court that Mr. Lofranco could be produced to testify the next morning, if necessary. Petitioner requested that the Court take an adverse inference for his failure to be present. The Court will take the most minimal adverse inference for Mr. Lofranco's failure to appear. Petitioner called Sonia Ayala, who testified that she notarized the affidavit of Ciro Gagliardi. Ms. Ayala established the foundational requirements for the original affidavit being received into evidence. Petitioner did not offer any other evidence in support of his claims. Respondent did not call any witnesses or offer any documentary evidence. Petitioner argues that the signature of Ciro Gagliardi on line 16, sheet 1 clearly is a forgery. He asks that the Court compare it to the signature card and take judicial notice of the same. Petitioner reasons that because that signature was witnessed by the candidate, respondent James A. Lofranco, the Nominating Petition is "permeated with fraud."
"Generally, a ... petition will be invalidated on the ground of fraud only ‘where there is a showing that the entire...petition is permeated with fraud’ (Matter of Finn v. Sherwood , 87 AD3d 1044, 1045, 930 NYS2d 20 ; see Matter of Proskin v. May , 40 NY2d 829, 829-830, 387 NYS2d 564, 355 NE2d 793 ; Matter of Harris v. Duran , 76 AD3d 658, 659, 905 NYS2d 777 ; Matter of Robinson v. Edwards , 54 AD3d 682, 683, 865 NYS2d 223 ; Matter of Ragusa v. Roper , 286 AD2d 516, 729 NYS2d 223; Matter of Del Pellegrino v. Giuliani , 153 AD2d 724, 725, 545 NYS2d 194 ), or ‘where the candidate has participated in or is chargeable with knowledge of the fraud’ (Matter of Lavine v. Imbroto , 98 AD3d 620 [2nd Dept., 2012] quoting Matter of Finn v. Sherwood , 87 AD3d at 1045, 930 NYS2d 20 and citing Matter of Harris v. Duran , 76 AD3d 659, 905 NYS2d 777 ). In the instant matter, the petitioner contends that 1 out of approximately 195 signatures is invalid on the ground of fraud. However, "contrary to the [petitioner's] contention, the hearing testimony regarding [this 1] signature did not demonstrate by clear and convincing evidence that the entire [nominating] petition was permeated with fraud" (Matter of Lavine v. Imbroto , 98 AD3d 620, 621 [2nd Dept., 2012] citing Matter of Finn v. Sherwood , 87 AD3d at 1045, 930 NYS2d 20 ; see also Matter of Harris v. Duram , 76 AD3d at 659, 905 NYS2d 777 ; Matter of Ferraro v. McNab , 96 AD2d 917, 466 NYS2d 101, affd . 60 NY2d 601, 467 NYS2d 193, 454 NE2d 533 ; cf. Matter of Proskin v. Mayo , 40 NY2d at 829-830, 387 NYS2d 564, 355 NE2d 793 ; Matter of Lerner v. Power , 22 NY2d 767, 292 NYS2d 471, 239 NE2d 389 ; Matter of Harry v. Liblick , 119 AD2d 845, 501 NYS2d 469 ). In fact, quite the opposite. The affidavit of Ciro Gagliardi, which was offered into evidence by petitioner's witness, clearly establishes that the petition was signed by Mr. Gagliardi. The petitioner failed to meet his burden of establishing that the candidate participated in or was chargeable with knowledge of any fraud" (Matter of Lavine v. Imbroto , 98 AD3d 620 [2nd Dept., 2012] citing Matter of Finn v. Sherwood , 87 AD3d at 1045, 930 NYS2d 20 ; Matter of Ragusa v. Roper , 286 AD2d at 517, 729 NYS2d 647 ; cf. Matter of Miller v. Gumbs , 207 AD2d 512, 513, 615 NYS2d 932 ). Accordingly, the petitioner's application must be denied (see Matter of Powell v. Tendy , 131 AD3d 645 [2nd Dept., 2015] ; Matter of Felder v. Storobin , 100 AD3d 11 [2nd Dept., 2012] ; Matter of Perez v. Galarza , 21 AD3d 508 [2nd Dept., 2005] ; Matter of Overbaugh v. Benoit , 172 AD3d 1874 [3rd Dept., 2019] ; Matter of Nolin v. McNally , 87AD3d 804 [3rd Dept., 2011] ).
The foregoing constitutes the Decision, Order and Judgment of this Court.