Opinion
2003-07134
Argued August 19, 2003.
August 20, 2003.
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Allan W. Jennings, Jr., as a candidate in a primary election to be held on September 9, 2003, for the nomination of the Democratic Party as its candidate for the public office of Member of the City Council, City of New York, for the 28th Council District, the appeal is from a final order of the Supreme Court, Queens County (Taylor, J.), dated August 13, 2003, which, after a hearing, granted the petition and invalidated the designating petition.
Before: A. GAIL PRUDENTI, P.J., SANDRA J. FEUERSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the final order is reversed, on the law and the facts, without costs or disbursements, the petition is denied, the proceeding is dismissed, and the New York City Board of Elections is directed to restore the name of Allan W. Jennings, Jr., to the appropriate ballot.
A candidate's designating petition will be invalidated on the ground of fraud when the entire designating petition is permeated with fraud ( see Matter of Ferraro v. McNab, 60 N.Y.2d 601, 603; Matter of Proskin v. May, 40 N.Y.2d 829, 830; Matter of Aronson v. Power, 22 N.Y.2d 759, 760) or when the candidate has participated in or is chargeable with knowledge of the fraud ( see Matter of Saitta v. Rivera, 264 A.D.2d 490; Matter of Flower v. D'Apice, 104 A.D.2d 578, affd 63 N.Y.2d 715; Matter of Layden v. Gargiulo, 77 A.D.2d 933, 934).
The Supreme Court correctly determined that there were some instances of irregularities relating to the designating petition in question. However, the totality of such instances does not rise to the level at which it could be said that the designating petition was permeated with fraud ( see Matter of Calvi v. McLaughlin, 264 A.D.2d 453; Matter of Miller v. Boyland, 143 A.D.2d 237; Matter of Thomas v. Simon, 89 A.D.2d 952, affd 57 N.Y.2d 744). In addition, the petitioners failed to meet their burden of establishing that the appellant candidate participated in or was chargeable with knowledge of the fraud ( see Matter of Meeks v. Pruitt, 185 A.D.2d 961; Matter of Corrente v. McNab, 96 A.D.2d 915; Matter of Cullen v. Power, 21 A.D.2d 698).
In light of this determination, we do not reach the appellant's remaining contentions.
PRUDENTI, P.J., FEUERSTEIN, McGINITY, SCHMIDT and ADAMS, JJ., concur.