Opinion
811.1 CAE 19–01228
09-04-2019
In the Matter of Michael J. HENNESSY, Petitioner-Respondent, v. BOARD OF ELECTIONS OF COUNTY OF ONEIDA, Carolann N. Cardone, Rose Marie Grimaldi, Commissioners Constituting the Board, Respondents, and James Genovese, Objector, Respondent-Appellant.
BEE READY FISHBEIN HATTER & DONOVAN, LLP, MINEOLA (ANDREW K. PRESTON OF COUNSEL), FOR RESPONDENT–APPELLANT. KEVIN P. RYAN, SYRACUSE, FOR PETITIONER–RESPONDENT. PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (ROBERT E. PRONTEAU OF COUNSEL), FOR RESPONDENTS BOARD OF ELECTIONS OF COUNTY OF ONEIDA, CAROLANN N. CARDONE AND ROSE MARIE GRIMALDI, COMMISSIONERS CONSTITUTING THE BOARD.
BEE READY FISHBEIN HATTER & DONOVAN, LLP, MINEOLA (ANDREW K. PRESTON OF COUNSEL), FOR RESPONDENT–APPELLANT.
KEVIN P. RYAN, SYRACUSE, FOR PETITIONER–RESPONDENT.
PETER M. RAYHILL, COUNTY ATTORNEY, UTICA (ROBERT E. PRONTEAU OF COUNSEL), FOR RESPONDENTS BOARD OF ELECTIONS OF COUNTY OF ONEIDA, CAROLANN N. CARDONE AND ROSE MARIE GRIMALDI, COMMISSIONERS CONSTITUTING THE BOARD.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, AND TROUTMAN, 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 validate his designating petition as a Democratic Party candidate for the office of Oneida County Executive. The designating petition had been invalidated by respondent Board of Elections of County of Oneida (Board), which determined in response to objections filed by James Genovese (respondent) that the designating petition contained 22 fewer valid signatures than required. After a hearing, Supreme Court validated 25 signatures that had been invalidated by the Board and thus ordered that petitioner be declared a duly qualified candidate of the Democratic Party for County Executive. Respondent appeals.
Initially, we note that this proceeding is not moot. Although the primary election date has passed, petitioner was the sole candidate to seek the subject designation, and thus he will be the Democratic Party candidate in the general election if his designating petition is valid (see Election Law § 6–160[2] ; 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] ). We further note that the requests for affirmative relief made by the Board in its respondent's brief are not properly before us because the Board did not file a notice of appeal from the order (see Cleere v. Frost Ridge Campground, LLC , 155 A.D.3d 1645, 1647, 65 N.Y.S.3d 405 [4th Dept. 2017] ; see also Matter of Overbaugh v. Benoit , 172 A.D.3d 1874, 1875 n. 2, 99 N.Y.S.3d 512 [3d Dept. 2019] ).
With respect to the merits, we reject respondent's contention that the court erred in validating the signatures at lines 2 through 4 and lines 6 and 7 of page 28 of the designating petition. Each of those signatures had listed by them the same street address, but no apartment numbers were included even though testimony at the hearing established that there are "maybe 60 [to] 70" apartments at that address. We nonetheless conclude that the designating petition adequately set forth the "residence address" of those signers within the meaning of Election Law § 6–130 "by indicating each signer's respective street address" ( Matter of Hayon v. Greenfield , 109 A.D.3d 920, 922, 972 N.Y.S.2d 592 [2d Dept. 2013] ; cf. Matter of Salka v. Magee , 164 A.D.3d 1084, 1086, 83 N.Y.S.3d 720 [3d Dept. 2018], lv denied 31 N.Y.3d 914, 83 N.Y.S.3d 425, 108 N.E.3d 499 [2018] ; see also Matter of Tully v. Ketover , 10 A.D.3d 436, 437, 780 N.Y.S.2d 795 [2d Dept. 2004] ), and that an apartment number is not a required component of a residence address for purposes of section 6–130 (see generally Tully , 10 A.D.3d at 437, 780 N.Y.S.2d 795 ). Respondent's contention that the court should have deferred to the Board's interpretation of the term "residence address" is improperly raised for the first time on appeal (see Matter of Buttenschon v. Salatino , 164 A.D.3d 1588, 1589, 83 N.Y.S.3d 780 [4th Dept. 2018] ) and, in any event, it is without merit inasmuch as the definition of that term presents a question of "pure legal interpretation" for which deference to an administrative agency is not warranted ( Matter of Toys "R" Us v. Silva , 89 N.Y.2d 411, 419, 654 N.Y.S.2d 100, 676 N.E.2d 862 [1996] ; see New York City Campaign Fin. Bd. v. Ortiz , 38 A.D.3d 75, 80–81, 826 N.Y.S.2d 244 [1st Dept. 2006] ).
Contrary to respondent's further contention, the court properly validated the signature at line 8 of page 17 of the designating petition, which the Board had invalidated as illegible, and the signatures at line 8 of page 6, line 5 of page 29, line 8 of page 90, and line 11 of page 91, which the Board had invalidated because the signatures were printed rather than in script and did not match the signatures on file with the Board. The signatures at line 8 of page 17 and line 8 of page 6 were properly validated based on the testimony of the signers identifying their signatures (see Matter of Romaine v. Suffolk County Bd. of Elections , 65 A.D.3d 993, 995, 884 N.Y.S.2d 770 [2d Dept. 2009] ; see generally Matter of Jaffee v. Kelly , 32 A.D.3d 485, 485–486, 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] ). The court validated the other three signatures by crediting the testimony of "subscribing witnesses attesting to the identity of [the signers]" ( Matter of Henry v. Trotto , 54 A.D.3d 424, 426, 862 N.Y.S.2d 605 [2d Dept. 2008] ; see generally Jaffee , 32 A.D.3d at 485–486, 819 N.Y.S.2d 485 ), i.e., testimony that the subscribing witnesses either personally knew the signer or required the signer to present identification before signing, and that credibility determination is entitled to deference (see Matter of Pidot v. Macedo , 141 A.D.3d 680, 681, 36 N.Y.S.3d 188 [2d Dept. 2016] ; Matter of Kraham v. Rabbitt , 11 A.D.3d 808, 809–810, 783 N.Y.S.2d 141 [3d Dept. 2004] ; Matter of Farrell v. Cayuga County Bd. of Elections , 288 A.D.2d 844, 844, 735 N.Y.S.2d 437 [4th Dept. 2001] ).
Respondent also contends that the subscribing witness for page 90 of the designating petition engaged in fraud by attesting in his subscribing witness statement that the signer listed at line 8 signed her name in his presence, when in fact her son signed for her pursuant to a power of attorney. In view of the court's determination to credit the testimony of the subscribing witness, however, we conclude that the record fails to establish that the subscribing witness statement was false, i.e., that the listed signer did not sign the designating petition herself (see generally Romaine , 65 A.D.3d at 995, 884 N.Y.S.2d 770 ). Furthermore, even if the listed signer's son did sign for her, that would merely require invalidation of her signature and would not establish fraud in the subscribing witness statement entitling respondent to any greater relief (see Matter of Van Der Water v. Czarny , 153 A.D.3d 1555, 1556, 60 N.Y.S.3d 627 [4th Dept. 2017] ; Matter of Fatata v. Phillips , 140 A.D.3d 1295, 1296–1297, 32 N.Y.S.3d 733 [3d Dept. 2016] ; cf. Matter of Burman v. Subedi , 172 A.D.3d 1882, 1883–1884, 101 N.Y.S.3d 523 [3d Dept. 2019], lv denied 33 N.Y.3d 906, 103 N.Y.S.3d 358, 127 N.E.3d 316 [2019] ; see generally Matter of Rodriguez v. Harris , 51 N.Y.2d 737, 738, 432 N.Y.S.2d 358, 411 N.E.2d 777 [1980] ). As a result, the invalidity of that signature would not affect the overall validity of the designating petition, which contained three more than the required number of signatures.
In view of our determination, we do not reach respondent's remaining contention.