| Matter of Harris v Duran |
| 2010 NY Slip Op 06442 [76 AD3d 658] |
| August 18, 2010 |
| Appellate Division, Second Department |
| In the Matter of William J. Harris et al.,Appellants, v Esteban Duran, Respondent, et al., Respondent. (Proceeding No. 1.) In theMatter of William J. Harris et al., Appellants, v Matthew Cowherd, Respondent, et al.,Respondent. (Proceeding No. 2.) |
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In related proceedings pursuant to Election Law § 16-102, inter alia, to invalidate apetition designating Esteban Duran and Matthew Cowherd as candidates in a primary election tobe held on September 14, 2010, for the Democratic Party positions of Male Member of NewYork State Democratic Committee from the 53rd Assembly District and Delegate to the SecondJudicial District Convention from the 53rd Assembly District, respectively, the petitioners appealfrom a final order of the Supreme Court, Kings County (Demarest, J.), dated August 13, 2010,which, after a hearing, denied the petitions and dismissed the proceedings.
Ordered that the final order is affirmed, without costs or disbursements.
" 'Generally, a candidate's designating petition will only be invalidated on the ground offraud if there is a finding that the entire designating petition is permeated with fraud' " (Matter of Robinson v Edwards, 54AD3d 682, 683 [2008], quoting Matter of Drace v Sayegh, 43 AD3d 481, 482 [2007]; seeMatter of Ferraro v McNab, 60 NY2d 601, 603 [1983]; Matter of Proskin v May, 40NY2d 829, 830 [1976]; Matter of Perezv Galarza, 21 AD3d 508 [2005]). "Even when the designating petition is not permeatedwith fraud, however, when the candidate has participated in or is chargeable with knowledge ofthe fraud, the designating petition will generally be invalidated" (Matter of Perez vGalarza, 21 AD3d at 509; see Matter of Drace v Sayegh, 43 AD3d at 482; Matterof Saitta v Rivera, 264 AD2d 490 [1999]; Matter of Flower v D'Apice, 104 AD2d578 [1984], affd 63 NY2d 715 [1984]).
In the instant case, the petitioners failed to meet their burden of establishing by clear andconvincing evidence that the totality of the instances of irregularities relating to the subjectdesignating petition rose to the level at which it could be said that the designating petition waspermeated with fraud (see Matter ofGrumbach v Orange County Bd. of Elections, 43 AD3d 477 [2007]; Matter of Perezv Galarza, 21 AD3d at 509; Matter of Fonvil v Michel, 308 AD2d 424 [2003];Matter of Calvi v McLaughlin, 264 AD2d 453 [1999]). The Supreme Court credited thetestimony of candidates [*2]Esteban Duran and MatthewCowherd regarding their roles in the petition-gathering process, specifically, that they did notparticipate in or become chargeable with knowledge of any fraud. Since the Supreme Court hadthe advantage of hearing and seeing the witnesses, the Supreme Court's assessment of theircredibility is entitled to substantial deference (see Matter of Drace v Sayegh, 43 AD3d at482). Accordingly, we perceive no reason to disturb the Supreme Court's determination. Skelos,J.P., Covello, Balkin, Austin and Sgroi, JJ., concur.