| Matter of Robinson v Edwards |
| 2008 NY Slip Op 06716 [54 AD3d 682] |
| September 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Dawn Robinson et al.,Respondents, v Cenceria P. Edwards, Appellant, and Board of Elections in the City ofNew York, Respondent. (Proceeding No. 1.) In the Matter of Cenceria P. Edwards, Appellant, vBoard of Elections in the City of New York et al., Respondents. (Proceeding No.2.) |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Cenceria P. Edwards 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 and the party position of Female Member of the Democratic State Committee,56th Assembly District, and a separate proceeding pursuant to Election Law § 16-102,among other things, to validate the designating petition, Cenceria P. Edwards appeals from afinal order of the Supreme Court, Kings County (Schmidt, J.), dated August 15, 2008, which,upon denying her motion to dismiss the petition to invalidate pursuant to CPLR 3016 (b), after ahearing, granted the petition to invalidate, dismissed the petition to validate, invalidated thedesignating petition, and directed the Board of Elections in the City of New York to remove hername from the ballot.
Ordered that the final order is reversed, on the law, without costs or disbursements, themotion to dismiss the petition to invalidate pursuant to CPLR 3016 (b) is granted, proceedingNo. 1 is dismissed, the petition to validate is denied as unnecessary, the designating petition isreinstated, and the Board of Elections in the City of New York is directed to add the name ofCenceria P. Edwards to the appropriate ballot.
The petitioners in proceeding No. 1 (hereinafter the petitioners) failed to plead the fraudclaims with the requisite specificity (see CPLR 3016 [b]; Matter of Waugh v Nowicki, 10 AD3d437, 438 [2004]; Matter of Naples v Swiatek, 286 AD2d 567, 568 [2001]; Matterof Wooten v Barron, 242 AD2d 351, 352 [1997]). Moreover, the petitioners' bill ofparticulars was insufficiently detailed to apprise the candidate of the allegations being madeagainst her designating petition (seeMatter of Edelstein v [*2]Suffolk County Bd. of Elections, 33AD3d 945, 946 [2006]; Matter ofBrotherton v Suffolk County Bd. of Elections, 33 AD3d 944, 945 [2006]; Matter ofBelak v Rossi, 96 AD2d 1011 [1983]; cf. Matter of Venuti v Westchester County Bd. of Elections, 43 AD3d482, 484 [2007]). Accordingly, the Supreme Court should have granted the candidate'smotion to dismiss the petition to invalidate pursuant to CPLR 3016 (b).
In any event, on the merits, the Supreme Court improperly invalidated the designatingpetition upon finding that 240 signatures were invalid. "Generally, a candidate's designatingpetition will only be invalidated on the ground of fraud if there is a finding that the entiredesignating petition is permeated with fraud" (Matter of Drace v Sayegh, 43 AD3d 481, 482 [2007]; see Matter of Tapper v Sampel, 54AD3d 435 [2008]; Matter of Perezv Galarza, 21 AD3d 508, 508-509 [2005]). Fraud must be proved by clear andconvincing evidence (see e.g. Matter ofButler v Duvalle, 32 AD3d 514 [2006]). While a finding that a designating petition is"permeated with fraud" supports the invalidation of the entire petition (Matter of Tapper v Sampel, 54 AD3d435, 436 [ 2008], quoting Matter of Drace v Sayegh, 43 AD3d at 482; see Matterof Perez v Galarza, 21 AD3d at 508-509), where the irregularities in the petition are notfound by clear and convincing evidence to have been the result of fraud, only the invalidsignatures or improperly subscribed designating sheets should be stricken (see Matter ofPerez v Galarza, 21 AD3d at 509; Matter of Hennessey v DiCarlo, 21 AD3d 505, 506 [2005];Matter of Previdi v Matthews, 186 AD2d 101, 102 [1992]; Matter of O'Donnell vRyan, 19 AD2d 781 [1963], affd 13 NY2d 885 [1963]; see also Matter ofRodriguez v Harris, 51 NY2d 737, 738 [1980]).
Here, the Supreme Court did not find that the candidate's designating petition was permeatedwith fraud, but it still invalidated 240 signatures after finding irregularities with respect to severalspecific signatures. Our review of the record reveals that only 16 of the stricken signatures wereinvalid or executed on an improperly subscribed designating sheet. The remaining 224 signaturesin question were improperly invalidated by the Supreme Court. When these 224 signatures arerestored to the designating petition, the candidate has a sufficient number of signatures.
In light of our determination, and since the Board of Elections in the City of New Yorkvalidated the designating petition, the petition to validate should have been denied asunnecessary. Fisher, J.P., Balkin, McCarthy and Eng, JJ., concur. [See 2008 NY Slip Op51774(U).]