Opinion
853.1 CAE 21-01214
09-16-2021
In the Matter of Darlene MACLAY, Petitioner-Appellant, v. Jay DIPASQUALE, Ray Herman, Dan Rider, Respondents-Respondents, Kathy Weppner and Erie County Board of Elections, Respondents.
VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), AND LAW OFFICES OF JESSICA A. KULPIT, FOR PETITIONER-APPELLANT. CIMASI LAW OFFICE, AMHERST (MICHAEL C. CIMASI OF COUNSEL), JOSEPH T. BURNS, WILLIAMSVILLE, AND JOHN V. MILLANE, III, FOR RESPONDENTS-RESPONDENTS JAY DIPASQUALE, RAY HERMAN, AND DAN RIDER.
VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), AND LAW OFFICES OF JESSICA A. KULPIT, FOR PETITIONER-APPELLANT.
CIMASI LAW OFFICE, AMHERST (MICHAEL C. CIMASI OF COUNSEL), JOSEPH T. BURNS, WILLIAMSVILLE, AND JOHN V. MILLANE, III, FOR RESPONDENTS-RESPONDENTS JAY DIPASQUALE, RAY HERMAN, AND DAN RIDER.
PRESENT: SMITH, J.P., CARNI, CURRAN, 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 article 16 seeking to invalidate the independent nominating petition of Jay DiPasquale, Ray Herman, Dan Rider, and Kathy Weppner (respondents) as candidates for certain offices in the Town of Amherst on the basis of, inter alia, certain line-by-line objections. The independent nominating petition, which contained 1,052 signatures, was submitted to respondent Erie County Board of Elections (Board). Upon the Board's consideration of the objections that were registered by petitioner, 272 of the signatures were invalidated, leaving 780 valid signatures. The parties correctly agree that the independent nominating petition must have at least 750 valid signatures for respondents to secure places on the ballot for the November 2, 2021 general election (see Election Law § 6-142 [2] [a] ). Following a hearing, Supreme Court, inter alia, denied petitioner's petition with respect to the line-by-line objections.
On appeal, petitioner contends that the court should have struck 47 signatures inasmuch as they were printed on the independent nominating petition, whereas they were inscribed in script on the signatories’ voter registration forms. "It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory's registration form" ( Matter of Toles v. Quintana , 183 A.D.3d 1290, 1292, 123 N.Y.S.3d 786 [4th Dept. 2020], lv denied 35 N.Y.3d 905, 2020 WL 2529764 [2020] [internal quotation marks omitted]; see Matter of Lord v. New York State Bd. of Elections , 98 A.D.3d 622, 623, 949 N.Y.S.2d 507 [2d Dept. 2012] ; Matter of Henry v. Trotto , 54 A.D.3d 424, 426, 862 N.Y.S.2d 605 [2d Dept. 2008] ). Nevertheless, where there is "credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition," the signatures are valid, notwithstanding a discrepancy with the voter registration forms ( Matter of LaMarca v. Quirk , 110 A.D.3d 808, 810, 973 N.Y.S.2d 254 [2d Dept. 2013] ; see Matter of Hennessy v. Board of Elections of County of Oneida , 175 A.D.3d 1777, 1779, 109 N.Y.S.3d 525 [4th Dept. 2019] ). Here, respondents submitted affidavits from 21 of the 47 signatories with printed signatures in which they attested that they were the same individuals whose signatures appeared on the independent nominating petition. Based on those affidavits, which the court properly received in evidence, we conclude that the court did not err in determining that petitioner failed to meet her burden of proof with respect to the invalidity of those 21 signatures (see Matter of Braunfotel v. Feiden , 172 A.D.3d 1451, 1452, 102 N.Y.S.3d 90 [2d Dept. 2019], lv denied 33 N.Y.3d 906, 103 N.Y.S.3d, 127 N.E.3d 316 [2019]; Matter of Jaffee v. Kelly , 32 A.D.3d 485, 485, 819 N.Y.S.2d 485 [2d Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006] ; see also Matter of Henry v. Trotto , 20 Misc. 3d 1134[A], *25, 872 N.Y.S.2d 690 [Sup. Ct., Suffolk County 2008], affd 54 A.D.3d 424, 862 N.Y.S.2d 605 [2d Dept. 2008] ).
In view of our determination, it is unnecessary to address petitioner's remaining contentions because respondents would have a sufficient number of valid signatures to be placed on the ballot even if petitioner were to prevail on those contentions.