MaClay v. Dipasquale

2021 NY Slip Op 05013

IN THE MATTER OF DARLENE MACLAY, PETITIONER-APPELLANT, v. JAY DIPASQUALE, RAY HERMAN, DAN RIDER, RESPONDENTS-RESPONDENTS, KATHY WEPPNER AND ERIE COUNTY BOARD OF ELECTIONS, RESPONDENTS.

No. 853.1 CAE 21-01214

Supreme Court of New York, Fourth Department

September 16, 2021

VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), AND LAW OFFICES OF JESSICA A. KULPIT, FOR PETITIONER-APPELLANT.

CIMASI LAW OFFICE, AMHERST (MICHAEL C. CIMASI OF COUNSEL), JOSEPH T BURNS, WILLIAMSVILLE, AND JOHN V. MILLANE, III, FOR RESPONDENTS-RESPONDENTS JAY DIPASQUALE, RAY HERMAN, AND DAN RIDER.

PRESENT: SMITH, J.P., CARNI, CURRAN, AND DEJOSEPH, JJ.

Appeal from an order of the Supreme Court, Erie County (Emilio Colaiacovo, J.), entered August 13, 2021 in a proceeding pursuant to Election Law article 16. The order, among other things, denied that part of the petition seeking to invalidate certain signatures on a nominating petition.

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 invalidate the independent nominating petition of Jay DiPasquale, Ray Herman, Dan Rider, and Kathy Weppner (respondents) as candidates for certain offices in the Town of Amherst on the basis of, inter alia, certain line-by-line objections. The independent nominating petition which contained 1, 052 signatures, was submitted to respondent Erie County Board of Elections (Board). Upon the Board's consideration of the objections that were registered by petitioner, 272 of the signatures were invalidated, leaving 780 valid signatures. The parties correctly agree that the independent nominating petition must have at least 750 valid signatures for respondents to secure places on the ballot for the November 2, 2021 general election (see Election Law § 6-142 [2] [a]). Following a hearing, Supreme Court, inter alia, denied petitioner's petition with respect to the line-by-line objections.

On appeal, petitioner contends that the court should have struck 47 signatures inasmuch as they were printed on the independent nominating petition, whereas they were inscribed in script on the signatories' voter registration forms. "It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory's registration form" (Matter of Toles v Quintana, 183 A.D.3d 1290, 1292 [4th Dept 2020], lv denied 35 N.Y.3d 905 [2020] [internal quotation marks omitted]; see Matter of Lord v New York State Bd. of Elections, 98 A.D.3d 622 623 [2d Dept 2012]; Matter of Henry v Trotto, 54 A.D.3d 424, 426 [2d Dept 2008]). Nevertheless, where there is "credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition," the signatures are valid, notwithstanding a discrepancy with the voter registration forms (Matter of LaMarca v Quirk, 110 A.D.3d 808, 810 [2d Dept 2013]; see Matter of...