| Matter of Testa v DeVaul |
| 2009 NY Slip Op 06276 [65 AD3d 651] |
| August 20, 2009 |
| Appellate Division, Second Department |
| In the Matter of John G. Testa et al., Appellants, v ThomasR. DeVaul II et al., Respondents, and Domenic Volpe, Respondent. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petitionsdesignating Domenic Volpe as a candidate in a primary election to be held on September 15,2009, for the nomination of the Democratic and Working Families Parties as their candidate forthe public office of Member of the Westchester County Legislature for the 1st LegislativeDistrict, the petitioners appeal, as limited by their brief, from so much of a final order of theSupreme Court, Westchester County (Loehr, J.), dated August 7, 2009, as denied those branchesof the petition which were to invalidate the designating petitions, to disqualify Domenic Volpeas a candidate, and to strike his name from the ballot.
Ordered that the final order is affirmed insofar as appealed from, without costs ordisbursements.
The petitioners allege that Domenic Volpe (hereinafter Volpe), the candidate for thenomination of the Democratic and Working Families Parties as their candidate for the publicoffice of Member of the Westchester County Legislature for the 1st Legislative District, obtainedsignatures for the designating petition of Thomas R. DeVaul II, a member of the IndependenceParty (hereinafter the DeVaul petition), in order to force an Independence Party primary electionbetween DeVaul and the petitioner John G. Testa. The petitioners further allege that Volpedirected his son, Nicholas Volpe (hereinafter Nicholas), an enrolled member of the IndependenceParty, to falsely swear as a witness to qualify the signatures that Volpe purportedly obtained forthe DeVaul petition, even though Nicholas did not actually witness those signatures. The DeVaulpetition was invalidated by the Westchester County Board of Elections (hereinafter the Board).At a hearing before the Supreme Court, DeVaul indicated that he would not challenge theBoard's determination and withdrew from the race. There is no allegation of fraud with respect toVolpe's designating petition.
The Supreme Court correctly determined that the petitioners failed to meet their burden ofestablishing, by clear and convincing evidence, that Volpe participated in, or is chargeable withknowledge of, any fraud with respect to the DeVaul petition (see Matter of Perez v Galarza, 21 AD3d 508 [2005]; Matter ofMcRae v Jennings, 307 AD2d 1012 [2003]; Matter of Ragusa v Roper, 286 AD2d516, 517 [2001]). At the hearing, the petitioners presented the testimony of four individuals whosigned the DeVaul petition in Volpe's presence. Based on this testimony, it cannot be said thatVolpe [*2]fraudulently induced the four witnesses to sign theDeVaul petition, as DeVaul's name was clearly printed on the petition and there was no evidencethat Volpe made any material misrepresentations of fact. In addition, there was no evidence thatVolpe induced his son Nicholas to affix his signature as a subscribing witness to those foursignatures (cf. Matter of Bynoe v Board of Elections of City of N.Y., 164 AD2d 929[1990]), or that Volpe exercised such control over Nicholas as to justify charging him withknowledge of the fraudulent acts allegedly committed by Nicholas. Furthermore, the SupremeCourt, which saw and heard the witnesses, found that the petitioners failed to demonstrate byclear and convincing evidence that Nicholas was not present when the subject signatoriesexecuted the DeVaul petition. Accordingly, the Supreme Court properly determined that thepetitioners failed to meet their burden of demonstrating that the petitions designating Volpe as acandidate should be invalidated, that Volpe should be disqualified as a candidate, or that Volpe'sname should be stricken from the ballot.
The petitioners' remaining contentions do not warrant reversal. Mastro, J.P., Leventhal,Belen, Chambers and Lott, JJ., concur.