Toles v. Quintana

183 A.D.3d 1290

123 N.Y.S.3d 786

In the Matter of Jordan D. TOLES and Jonathan D. Rivera, Petitioners–Appellants,

v.Robert QUINTANA, Erie County Board of Elections, Jeremy Zellner, as Commissioner of The Erie County Board of Elections, and Ralph Mohr, as Commissioner of The Erie County Board of Elections, Respondents–Respondents.

560.1

CAE 20–00539

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 13, 2020

VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL), FOR PETITIONERS–APPELLANTS.

JOSEPH A. MATTELIANO, BUFFALO, AND JAMES OSTROWSKI, FOR RESPONDENT–RESPONDENT ROBERT QUINTANA.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this proceeding pursuant to Election Law article 16 seeking to invalidate the designating petition of respondent Robert Quintana as a Democratic candidate for the office of New York State Assembly Member for the 149th Assembly District. Quintana's designating petition, which contained 928 signatures, was submitted to respondent Erie County Board of Elections (Board). However, upon the Board's consideration of the objections that were registered by petitioner Jordan D. Toles, 681 of the signatures were invalidated, leaving 247 valid signatures. The parties agree that the designating petition must have at least 150 valid signatures for Quintana to secure a place on the ballot for the June 23, 2020 primary. Following a hearing, Supreme Court invalidated three additional signatures and otherwise denied the petition. At issue on this appeal are challenges to 96 signatures on the designating petition.

Petitioners contend that the court should have struck sheets 10, 13, and 16 from the designating petition because the subscribing witness, Quintana's daughter, committed fraud. At the hearing, petitioners presented testimony that three of the purported signers did not sign the designating petition. Quintana's daughter was subpoenaed but did not appear. The court struck the only two signatures on sheet 10 and one signature on sheet 16 but rejected petitioners' request to strike 26 additional signatures on sheets 13 and 16, holding that petitioners failed to establish that those sheets were the product of fraud.

We conclude that the court erred in refusing to strike the 26 signatures on sheets 13 and 16. Where a subscribing witness falsely swears to a designating petition sheet and does not testify at the hearing, the court may declare that all of the designating petition sheets subscribed by that witness are invalid (see Matter of Bloom v. Power , 21 Misc.2d 885, 890, 193 N.Y.S.2d 697 [Sup. Ct., Kings County 1959], affd 9 A.D.2d 626, 191 N.Y.S.2d 152 [2d Dept. 1959], affd 6 N.Y.2d 1001, 192 N.Y.S.2d 162, 161 N.E.2d 889 [1959] ; see also Matter of Haas v. Costigan , 14 A.D.2d 809, 810–811, 221 N.Y.S.2d 138 [2d Dept. 1961], affd 10 N.Y.2d 889, 223 N.Y.S.2d 511, 179 N.E.2d 513 [1961] ; Matter of Burns [Sullivan] , 199 Misc. 1005, 1007–1008, 106 N.Y.S.2d 993 [Sup. Ct., Queens County 1951], affd 278 App.Div. 1023, 106 N.Y.S.2d 1005 [2d Dept. 1951], affd 303 N.Y. 601, 100 N.E.2d 885 [1951] ). Here, inasmuch as Quintana's daughter failed to testify at the hearing and petitioners established that three of the signatures on the designating petition had not been signed by the purported signer, we conclude that the court should have stricken the 26 signatures on sheets 13 and 16.

Petitioners also seek the invalidation of 45 printed signatures on the designating petition on the ground that they failed to correspond to the voter registration forms that petitioners obtained from the Board and submitted to the court as part of their case in chief. Given the illegibility of some of the printed signatures on the designating petition, the exact number of corresponding voter...