Opinion
586 CAE 23-00904
06-14-2023
In the Matter of Lynn DEARMYER, Petitioner-Appellant, v. Darryl T. STACHURA and Erie County Board of Elections, Respondents-Respondents.
PENBERTHY LAW GROUP LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), AND LAW OFFICES OF JESSICA A. KULPIT, FOR PETITIONER-APPELLANT. JAMES OSTROWSKI, BUFFALO, FOR RESPONDENT-RESPONDENT DARRYL T. STACHURA.
PENBERTHY LAW GROUP LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), AND LAW OFFICES OF JESSICA A. KULPIT, FOR PETITIONER-APPELLANT.
JAMES OSTROWSKI, BUFFALO, FOR RESPONDENT-RESPONDENT DARRYL T. STACHURA.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, 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, inter alia, Election Law article 16 seeking to invalidate the designating petition of Darryl T. Stachura (respondent) as a Democratic candidate for the office of Highway Superintendent of the Town of Cheektowaga. Respondent's designating petition, which contained 649 signatures, was submitted to respondent Erie County Board of Elections (Board). Upon consideration of petitioner's objections, the Board reduced the number of signatures to 551 and the parties thereafter stipulated to a reduction of five additional signatures. The parties agree that the designating petition required at least 500 valid signatures. Following a hearing, Supreme Court invalidated one signature, dismissed the petition for failure to prove a prima facie case of fraud, and ordered the Board to place the name of respondent for Highway Superintendent of the Town of Cheektowaga on all Democratic primary election ballots for the June 27, 2023 primary election. We affirm. "Generally, a designating petition will only be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud" ( Matter of Finn v. Sherwood , 87 A.D.3d 1044, 1045, 930 N.Y.S.2d 20 [2d Dept. 2011] ; see Matter of Saunders v. Mansouri , 194 A.D.3d 1490, 1491, 145 N.Y.S.3d 752 [4th Dept. 2021], lv denied 36 N.Y.3d 914, 2021 WL 2099517 [2021] ; Matter of Buttenschon v. Salatino , 164 A.D.3d 1588, 1589, 83 N.Y.S.3d 780 [4th Dept. 2018] ). " ‘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 ; see Saunders , 194 A.D.3d at 1491, 145 N.Y.S.3d 752 ), "even if there is a sufficient number of valid signatures independent of those [signatures] fraudulently procured" ( Matter of Drace v. Sayegh , 43 A.D.3d 481, 482, 844 N.Y.S.2d 314 [2d Dept. 2007] ; see Saunders , 194 A.D.3d at 1491, 145 N.Y.S.3d 752 ). Fraud must be proved by clear and convincing evidence (see Matter of Valenti v. Bugbee , 88 A.D.3d 1056, 1057, 930 N.Y.S.2d 319 [3d Dept. 2011] ).
Petitioner contends that the court should have struck sheets 11, 12, and 28 from the designating petition because the subscribing witness to the signatures on those sheets committed fraud. She does not contend that respondent participated in or had knowledge of the fraud (cf. 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] ; Matter of Grynspan v. Moore , 194 A.D.3d 1493, 1493-1494, 148 N.Y.S.3d 792 [4th Dept. 2021] ).
At the hearing, petitioner presented testimony from a husband and wife establishing that the wife signed the designating petition for her husband. The subscribing witness conceded that she attested to having seen the husband sign the designating petition when she had not (see generally Election Law § 6-132 [2] ). The court struck the husband's signature but rejected petitioner's request to strike all of the signatures on sheets 11, 12, and 28, which, if granted, would have reduced the number of valid signatures to below the 500-signature threshold. The court determined that petitioner failed to establish by clear and convincing evidence that the designating petition was permeated by fraud or that respondent participated in or was chargeable with knowledge of the fraud.
Although we " ‘do not ascribe any nefarious motive to [the subscribing witness's] conduct,’ " we agree with petitioner that " ‘[the subscribing witness's] actions still constituted a fraud’ " ( Grynspan , 194 A.D.3d at 1494, 148 N.Y.S.3d 792 ; see Buttenschon , 164 A.D.3d at 1589, 83 N.Y.S.3d 780 ; Valenti , 88 A.D.3d at 1058, 930 N.Y.S.2d 319 ). However, we reject petitioner's contention that proof of that one instance of fraud required the court to strike sheets 11, 12, and 28 (see Matter of Overbaugh v. Benoit , 172 A.D.3d 1874, 1876, 99 N.Y.S.3d 512 [3d Dept. 2019] ; Matter of Powell v. Tendy , 131 A.D.3d 645, 646, 15 N.Y.S.3d 428 [2d Dept. 2015] ). "[O]ne fraudulent signature is not clear and convincing evidence that a designating petition is permeated with fraud" ( Overbaugh , 172 A.D.3d at 1876, 99 N.Y.S.3d 512 ). Thus, we conclude that petitioner failed to establish by clear and convincing evidence that the designating petition was permeated with fraud (see Matter of Mack v. Joyner , 120 A.D.3d 415, 415, 991 N.Y.S.2d 312 [1st Dept. 2014], lv denied 23 N.Y.3d 908, 2014 WL 4230823 [2014] ; Matter of Lavine v. Imbroto , 98 A.D.3d 620, 620-621, 949 N.Y.S.2d 505 [2d Dept. 2012] ). Finally, we note that the invalidity of the husband's signature does not affect the overall validity of the designating petition.