Opinion
560.3 CAE 20–00555
05-13-2020
In the Matter of James J. MONTO, III, Petitioner–Respondent–Appellant, v. Jason B. ZEIGLER, Respondent–Appellant–Respondent, and Onondaga County Board of Elections, Respondent.
JOSEPH T. BURNS, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT-RESPONDENT, AND JASON B. ZEIGLER, RESPONDENT-APPELLANT-RESPONDENT PRO SE. COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT.
JOSEPH T. BURNS, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT-RESPONDENT, AND JASON B. ZEIGLER, RESPONDENT-APPELLANT-RESPONDENT PRO SE.
COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said cross appeal is unanimously dismissed, the order is reversed on the law without costs, and the petition is dismissed. Memorandum: In this proceeding pursuant to Election Law § 16–102, Jason B. Zeigler (respondent) appeals and petitioner cross-appeals from an order that, inter alia, invalidated a designating petition to place respondent on the primary election ballot for the Democratic Party as a candidate for Syracuse City Court Judge. Preliminarily, we reject respondent's contention on appeal that the proceeding was untimely commenced (see generally Matter of Parietti v. Sampson, 117 A.D.3d 830, 832, 834–835, 986 N.Y.S.2d 160 [2d Dept. 2014] ).
We agree with respondent, however, that Supreme Court erred in invalidating his designating petition after concluding that he had personally participated in fraudulent activity, which must be established by clear and convincing evidence (see Matter of Burman v. Subedi, 172 A.D.3d 1882, 1883, 101 N.Y.S.3d 523 [3d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2402168 [2019] ; Matter of Duck v. Mannion, 164 A.D.3d 1103, 1104, 83 N.Y.S.3d 775 [4th Dept. 2018], lv denied 31 N.Y.3d 914, 2018 WL 4102378 [2018] ). That standard requires evidence that "makes it highly probable that what [a party] claims is what actually happened" ( PJI 1:64 ), i.e., evidence " ‘that is neither equivocal nor open to opposing presumptions’ " ( Matter of Seon v. New York State Dept. of Motor Vehs., 159 A.D.3d 607, 613, 74 N.Y.S.3d 20 [1st Dept. 2018] ), and it "forbids relief whenever the evidence is loose, equivocal, or contradictory" ( George Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 220, 413 N.Y.S.2d 135, 385 N.E.2d 1062 [1978] [internal quotation marks omitted] ). Here, the court based its determination to invalidate the designating petition on the testimony of a single signatory, who stated that although respondent was the subscribing witness on the petition that she signed, her signature was actually witnessed by a younger man of a different race. While such evidence may warrant invalidation of a designating petition (see Matter of Haskell v. Gargiulo, 51 N.Y.2d 747, 748, 432 N.Y.S.2d 359, 411 N.E.2d 778 [1980] ; Matter of Mattice v. Hammond, 131 A.D.3d 790, 790–791, 15 N.Y.S.3d 866 [3d Dept. 2015] ), cross-examination of the signatory—during which she acknowledged signing four City Court petitions, including one for an individual whose description was similar to that of respondent—called her testimony on direct examination into question. Even granting due deference to the court's assessment of witness credibility (see generally Matter of Farrell v. Cayuga County Bd. of Elections, 288 A.D.2d 844, 844, 735 N.Y.S.2d 437 [4th Dept. 2001] ), we cannot conclude that the signatory's equivocal and self-contradictory testimony constituted clear and convincing evidence that respondent engaged in fraud (see George Backer Mgt. Corp., 46 N.Y.2d at 220, 413 N.Y.S.2d 135, 385 N.E.2d 1062 ).
Petitioner's cross appeal must be dismissed on the ground that he is not aggrieved by the order (see Matter of Giordano v. Westchester County Bd. of Elections, 153 A.D.3d 821, 823, 60 N.Y.S.3d 394 [2d Dept. 2017], lv denied 29 N.Y.3d 915, 2017 WL 3723171 [2017] ; see generally National Fuel Gas Distrib. Corp. v. PUSH Buffalo [People United for Sustainable Hous.], 104 A.D.3d 1307, 1308, 962 N.Y.S.2d 559 [4th Dept. 2013] ). Although his contentions can still be considered as alternative grounds for affirmance on respondent's appeal (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545–546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ; Giordano, 153 A.D.3d at 823, 60 N.Y.S.3d 394 ), we conclude that respondent's apparent failure to administer to one signatory "an oath ... ‘calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs’ " ( Matter of Bonner v. Negron, 87 A.D.3d 737, 738, 929 N.Y.S.2d 170 [2d Dept. 2011], quoting CPLR 2309[b] ) did not, on its own, constitute evidence of fraud requiring invalidation of his designating petition (see Matter of Vincent v. Sira, 131 A.D.3d 787, 788–789, 14 N.Y.S.3d 834 [3d Dept. 2015], lv denied 25 N.Y.3d 914, 2015 WL 5010176 [2015] ; Bonner, 87 A.D.3d at 739–740, 929 N.Y.S.2d 170 ; Matter of Nolin v. McNally, 87 A.D.3d 804, 805–806, 928 N.Y.S.2d 615 [3d Dept. 2011] ). On the whole, the hearing testimony established that the subscribing witnesses, including respondent, substantially complied with the requirements of Election Law § 6–132(3) (see Matter of Dwyer v. Pellegrino, 164 A.D.3d 1088, 1089, 83 N.Y.S.3d 718 [3d Dept. 2018] ; Matter of Finn v. Sherwood, 87 A.D.3d 1044, 1045, 930 N.Y.S.2d 20 [2d Dept. 2011] ). We therefore reverse the order and dismiss the petition.