| Matter of Tapper v Sampel |
| 2008 NY Slip Op 06666 [54 AD3d 435] |
| August 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Marlene J. Tapper, Appellant, v James J.Sampel et al., Respondents, and Michael G. Den Dekker, Respondent. In the Matter of MichaelG. Den Dekker, Respondent, v Marlene J. Tapper, Appellant, et al.,Respondents. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to validate a petitiondesignating Marlene J. Tapper as a candidate in a primary election to be held on September 9,2008, for the nomination of the Democratic Party as its candidate for the public office of Memberof the Assembly, 34th Assembly District, and a related proceeding, among other things, toinvalidate that designating petition, Marlene J. Tapper appeals from (1) a final order of theSupreme Court, Queens County (Golia, J.), dated August 14, 2008, which, after a hearing, deniedthe petition to validate the designating petition, and, in effect, dismissed that proceeding, and (2)a final order of the same court, also dated August 14, 2008, which, after the hearing, granted thepetition to invalidate the designating petition, and invalidated the designating petition.
Ordered that the final orders are affirmed, without costs or disbursements.
"Generally, a candidate's designating petition will only be invalidated on the ground of fraudif there is a finding that the entire designating petition is permeated with fraud" (Matter of Drace v Sayegh, 43 AD3d481, 482 [2007], citing Matter of Ferraro v McNab, 60 NY2d 601, 603 [1983])."Where, as here, the candidate [her]self, as a subscribing witness, has participated in the fraud,the petition [*2]should be invalidated even if there is a sufficientnumber of valid signatures independent of those fraudulently procured" (Matter of Leonard vPradhan, 286 AD2d 459 [2001]; see Matter of Drace v Sayegh, 43 AD3d at 482).
A witness at the hearing testified that she was directed by the appellant to fill in the numberof signatures on a petition sheet that she did not witness (cf. Matter of Magelaner v Park, 32 AD3d 487, 488 [2006];Matter of Fromson v Lefever, 112 AD2d 1064, 1066-1067 [1985]). Moreover, there wastestimony at the hearing that the appellant did not personally witness and identify all of thesignatures to which she attested as a subscribing witness under Election Law § 6-132 (2)(see Matter of Haskell v Gargiulo, 51 NY2d 747, 748 [1980]; Matter of Flower vD'Apice, 104 AD2d 578 [1984]; Matter of Layden v Gargiulo, 77 AD2d 933, 934[1980]; accord Matter of Heburn, 84 NY2d 168 [1994]). Furthermore, the appellantconceded at the hearing that she intentionally submitted to the Board of Elections in the City ofNew York (hereinafter the Board of Elections) sheets of her designating petition that containedwitness statements which failed to comply with the requirement of Election Law § 6-132that the witness attest to the number of signatures contained on each petition sheet. The appellanttestified that "some [of the petition sheets] might have slipped through" and "I might have gottenlucky" because the Board of Elections might not have detected the impropriety.
Accordingly, in light of the appellant's actions as a candidate, as well as other irregularitiesbrought to light during the hearing, the Supreme Court properly invalidated the appellant'sdesignating petition (see Matter of Drace v Sayegh, 43 AD3d at 482; Matter ofFlower v D'Apice, 104 AD2d 578 [1984]). Rivera, J.P., McCarthy, Dickerson, Leventhal andBelen, JJ., concur.