Opinion
2769/2014
08-01-2014
In the Matter of the Application of Thomas J. ABINANTI, Petitioner, v. Mike DUFFY, and Douglas A. Colety and Reginald Lafayette, as Commissioners of the Westchester County Board of Elections, Respondents, for an Order pursuant to the Election Law.
Thomas J. Abinanti, Esq., Attorney/Petitioner pro se, 291 Bear Ridge Road, Pleasantville, NY 10570, By fax: (914) 328-9000 Guy T. Parisi, Esq. Attorney for Respondent Mike Duffy, 720 Milton Road, Suite J1, Rye, NY 10580, By fax: (914) 921-5410 Robert F. Meehan, Esq., Westchester County Attorney, By: Christie D'Alessio, Esq. Attorney for Respondent Westchester County Board of Elections, 148 Martine Avenue, 6th Floor, White Plains, NY 10601, By fax: (914) 995-3132
Thomas J. Abinanti, Esq., Attorney/Petitioner pro se, 291 Bear Ridge Road, Pleasantville, NY 10570, By fax: (914) 328-9000
Guy T. Parisi, Esq.
Attorney for Respondent Mike Duffy, 720 Milton Road, Suite J1, Rye, NY 10580, By fax: (914) 921-5410
Robert F. Meehan, Esq., Westchester County Attorney, By: Christie D'Alessio, Esq.
Attorney for Respondent Westchester County Board of Elections, 148 Martine Avenue, 6th Floor, White Plains, NY 10601, By fax: (914) 995-3132
Francesca E. Connolly, J.
The following papers were considered in connection with the petition to invalidate:
Order to show cause, petition, exhibits 1-9
Petitioner's memorandum 10
Respondent Duffy's verified answer, post-trial memorandum 11-12
Respondents Commissioners Colety and Lafayette's answer 13
Petitioner's post-hearing memorandum 14
The petitioner Thomas J. Abinanti, in his capacity as an aggrieved candidate and objector, commenced this proceeding pursuant to Election Law § 16-102 to invalidate a petition designating Mike Duffy as a candidate in a primary election to be held on September 9, 2014, for the nomination of the Republican party as its candidate for the public office of Member of the New York State Assembly from the 92nd Assembly District. The respondent Mike Duffy (hereinafter the respondent), opposes the petition.
FACTUAL AND PROCEDURAL BACKGROUND
The petitioner contends that the petition designating "Mike Duffy" must be invalidated because there is no registered voter with that name living at the candidate's listed address. According to the petitioner, the Board of Elections' records indicate that both a "Michael K. Duffy" and a "Michael M. Duffy" reside at the address, which creates confusion as to the candidate's identity, as the familiar name of "Mike Duffy" could apply to either registered voter at that address. The petitioner contends that the use of the familiar name of "Mike Duffy" on the designating petition fails to inform the petition signers as to which one of the residents at that address is being designated as the candidate for public office and, therefore, tends to mislead or confuse the signatories as to the true identity of the individual the petition is attempting to designate. The petitioner challenges the designating petition as invalid on the grounds that the candidate is not identifiable from the information provided on the face of the designating petition.
The Commissioners of the Board of Elections considered the specific objections filed by the petitioner and could not agree on their validity. Accordingly, since the Commissioners could not agree, the Board determined, on July 28, 2014, that the designating petition was valid.
THE HEARING AND FINDINGS OF FACT
On July 29, 2014, the Court conducted a hearing on the issue of the respondent's use of the familiar form of the proper first name of "Mike Duffy," as opposed to Michael K. Duffy, and any potential confusion to voters or signers of the petition created by such use. At the hearing, the proof established that there are two individuals by the names of Michael K. Duffy and Michael M. Duffy who reside at the candidate's listed address, and who both use the familiar name, "Mike Duffy." Although the candidate's legal name is "Michael K. Duffy" and he is known by and regularly uses the name "Mike Duffy," no proof was presented that he intended to mislead or deceive signers or voters. Nor was any proof presented that any of the signatories on the petition or potential voters were actually confused or misled by the use of the name "Mike Duffy" on the designating petition.
DISCUSSION/ANALYSIS
Based upon the evidence adduced at the hearing, the Court finds that there was no intention on the respondent's part to mislead signers of the petition or potential voters as to the candidate's identity (see Matter of Gumbs v Board of Elections , 143 AD2d 235 [2d Dept 1988] ["We find that there was no showing that the candidate's use of the name ‘Marty Markowitz’ on the designating petition rather than ‘Martin Markowitz’ was intended to mislead potential signatories"] ). Nor did the petitioner establish that any signers or voters were confused as to the candidate's identity (see Matter of Reagon v LeJeune , 307 AD2d 1015 [2d Dept 2003] [where the petitioner contended that the petition designating "Thomas J. LeJeune" should be invalidated because "Thomas J. LeJeune, Jr." was the registered voter residing at the subject address, the petition was denied as there was "no showing that any of the voters were confused as to the candidate's identity"). Further, absent a showing that the respondent intended to mislead signatories as to his identity, or a showing that the use of the name "Mike Duffy" "would or did tend to mislead signatories as to the identity of the candidate," the fact that "Michael M. Duffy," the respondent's son, lives at the same address and also uses the name "Mike Duffy," is not a basis to invalidate the designating petition (see Matter of Harfmann v Sachs, 138 AD2d 551, 551 [2d Dept 1988] ; see also Matter of Petersen v Board of Elections , 218 AD2d 776 [2d Dept 1995] ["Although the candidate Marina Rejas resides with her daughter, whose name is Marina V. Rejas, the candidate has regularly used or signed the name ‘Marina Rejas’ for her driver's license, vehicle registration, and significantly, for purposes of voter registration. As a result, there has been no showing of any intention on the part of the candidate to mislead or confuse, and no showing that the use of Marina Rejas's name as set forth on the designating petition would tend to mislead signatories as to her identity"] ). Under these circumstances, the petition to invalidate must be denied.
Accordingly, it is hereby,
ORDERED that the petition to invalidate is denied and the proceeding is dismissed; and it is further
ORDERED that all other relief requested and not decided herein is denied.
This constitutes the decision and order of the Court.