Opinion
2011-08-18
In the Matter of Ann M. NOLIN et al., Appellants,v.Richard McNALLY, Respondent, et al., Respondents.
James E. Walsh, Schenectady, for appellants.James E. Long, Albany, for Richard McNally, respondent.
James E. Walsh, Schenectady, for appellants.James E. Long, Albany, for Richard McNally, respondent.
PER CURIAM.
Appeal from an order of the Supreme Court (Lynch, J.), entered August 3, 2011 in Rensselaer County, which dismissed petitioner's application, in a proceeding pursuant to Election Law § 16–102, to declare invalid the designating petition naming respondent Richard McNally as the Independence Party candidate for the office of Rensselaer County District Attorney in the September 13, 2011 primary election.
Respondent Richard McNally filed a designating petition with the Rensselaer County Board of Elections seeking to be nominated as the Independence Party candidate for the office of Rensselaer County District Attorney in the September 13, 2011 primary election. McNally acted as notary with respect to 195 individuals who signed his designating petition. Petitioner Ann M. Nolin signed McNally's designating petition and petitioner Joel Abelove is a candidate for the same office. After objections were filed with the Board, petitioners commenced this proceeding pursuant to Election Law § 16–102 to invalidate McNally's designating petition on numerous grounds, including fraud. Supreme Court dismissed the proceeding following a hearing, and this appeal ensued.
For the reasons set forth in Matter of Harte v. Kaplan, ––– A.D.3d ––––, 928 N.Y.S.2d 482 [2011] [decided herewith], we reject petitioners' assertion that it was improper for McNally, as a party in interest, to notarize any signatures on his designating petition. Petitioners further argue that those individuals for whom McNally acted as the notary were not properly sworn and that, as a result, his designating petition should be declared invalid on the basis of fraud. We note that “a candidate's designating petition will only be invalidated on the ground of fraud if there is a finding that the entire designating petition is permeated with fraud” ( Matter of Drace v. Sayegh, 43 A.D.3d 481, 482, 844 N.Y.S.2d 314 [2007]; see Matter of Harris v. Duran, 76 A.D.3d 658, 659, 905 N.Y.S.2d 777 [2010]; Matter of Robinson v. Edwards, 54 A.D.3d 682, 683, 865 N.Y.S.2d 223 [2008] ) or “the candidate participated in, or can be charged with knowledge of, fraudulent activity” ( Matter of Kraham v. Rabbitt, 11 A.D.3d 808, 809, 783 N.Y.S.2d 141 [2004]; see Matter of Tapper v. Sampel, 54 A.D.3d 435, 436, 862 N.Y.S.2d 610 [2008], lv. denied 11 N.Y.3d 701, 864 N.Y.S.2d 388, 894 N.E.2d 652 [2008] ). Notably, the burden is upon the party challenging the designating petition to demonstrate the existence of fraud by clear and convincing evidence ( see Matter of Harris v. Duran, 76 A.D.3d at 659, 905 N.Y.S.2d 777; Matter of Robinson v. Edwards, 54 A.D.3d at 683, 865 N.Y.S.2d 223; Matter of Kraham v. Rabbitt, 11 A.D.3d at 809, 783 N.Y.S.2d 141).
Petitioners, in claiming fraud, rely solely upon Nolin's testimony at the hearing before Supreme Court. While Nolin testified that McNally did not formally “swear” her or her husband or administer an oath prior to their signing of the designating petition, it has been held that this is not necessary in order to satisfy the requirements of Election Law § 6–132(3) ( see Matter of Liebler v. Friedman, 54 A.D.3d 697, 698, 863 N.Y.S.2d 719 [2008]; Matter of Quintyne v. Canary, 104 A.D.2d 473, 475, 478 N.Y.S.2d 979 [1984] ). Rather, the dictates of the statute will be met if the notary informed the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed ( see Matter of Liebler v. Friedman, 54 A.D.3d at 698, 863 N.Y.S.2d 719; Matter of Brown v. Suffolk County Bd. of Elections, 264 A.D.2d 489, 489, 694 N.Y.S.2d 167 [1999], appeal dismissed, lv. denied 93 N.Y.2d 1012, 697 N.Y.S.2d 552, 719 N.E.2d 911 [1999]; Matter of Quintyne v. Canary, 104 A.D.2d at 475, 478 N.Y.S.2d 979; compare Matter of LeBron v. Clyne, 65 A.D.3d 801, 802, 883 N.Y.S.2d 833 [2009]; Matter of Imre v. Johnson, 54 A.D.3d 427, 428, 863 N.Y.S.2d 473 [2008] ). Here, Nolin testified that neither she nor her husband were asked to affirm the truth of the matter to which they subscribed and that McNally did not introduce himself or confirm the Nolins' identities until after they had signed the designating petition. However, no evidence was introduced at the hearing with respect to other individuals who signed the designating petition and for whom McNally acted as a notary. Thus, while McNally may not have acted in strict compliance with the statute in taking the signatures of Nolin and her husband, it has not been established that he acted fraudulently or did anything that would warrant invalidating the entire designating petition ( see Matter of Berney v. Ragusa, 76 A.D.3d 647, 648, 906 N.Y.S.2d 342 [2010], lv. denied 15 N.Y.3d 704, 907 N.Y.S.2d 459, 933 N.E.2d 1052 [2010]; Matter of Harris v. Duran, 76 A.D.3d at 659, 905 N.Y.S.2d 777; Matter of Perez v. Galarza, 21 A.D.3d 508, 509, 800 N.Y.S.2d 574 [2005], lv. denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 [2005]; compare
Matter of Cirillo v. Gardiner, 65 A.D.3d 638, 884 N.Y.S.2d 260 [2009]; Matter of Tapper v. Sampel, 54 A.D.3d at 436, 862 N.Y.S.2d 610). Accordingly, inasmuch as petitioners have failed to demonstrate by clear and convincing evidence that fraud permeated the designating petition, Supreme Court properly dismissed the proceeding.
ORDERED that the order is affirmed, without costs.
MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and EGAN JR., JJ., concur.