| Matter of Bonner v Negron |
| 2011 NY Slip Op 06377 [87 AD3d 737] |
| August 30, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jane Bonner, Respondent, v Raymond D.Negron, Appellant, and Suffolk County Board of Elections,Respondent. |
—[*1]
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Raymond D. Negron as a candidate in a primary election to be held on September 13,2011, for the nomination of the Republican Party as its candidate for the public office of Memberof the Town Council of the Town of Brookhaven, 2nd Council District, Raymond D. Negronappeals from a final order of the Supreme Court, Suffolk County (Weber, J.), dated August 12,2011, which, after a hearing, granted the petition, invalidated the designating petition, anddirected the Suffolk County Board of Elections to refrain from placing his name on the ballot.
Ordered that the final order is reversed, on the law and the facts, without costs ordisbursements, the petition is denied, the proceeding is dismissed, and the Suffolk County Boardof Elections is directed to place the name of Raymond D. Negron on the appropriate ballot.
The appellant, Raymond D. Negron, filed a designating petition with the Suffolk CountyBoard of Elections designating himself as a candidate in the primary election to be held onSeptember 13, 2011, for the nomination of the Republican Party as its candidate for the office ofMember of the Town Council of the Town of Brookhaven, 2nd Council District. Negronpersonally collected a number of the signatures on the designating petition, 25 to which heattested as a subscribing witness pursuant to Election Law § 6-132 (2), and 449 to whichhe attested as a notary public pursuant to Election Law § 6-132 (3). The petitioner, JaneBonner, commenced the instant proceeding to invalidate Negron's designating petition on theground, inter alia, that he improperly attested to the signatures as a notary public since he did notobtain statements from each of the signers affirming the truth of the matter to which theysubscribed their names, and that such conduct on his part constituted fraud requiring that theentire designating petition be invalidated. After a hearing, the Supreme Court determined that thesignatures collected by Negron in his capacity as a notary public were invalid, as they were notobtained in accordance with Election Law § 6-132. Moreover, the Supreme Courtinvalidated Negron's designating petition on the ground that his conduct with regard to thesignatures to which he attested in his capacity as a notary public constituted fraud in theprocurement of the signatures. We reverse.
A notary public who collects signatures for a designating petition pursuant to Election Law§ 6-132 (3) need not administer any particular form of oath to the signatories, nor must heor she ask the signatories to formally "swear" (see Matter of Kutner v Nassau County Bd. of Elections, 65 AD3d643 [2009]; Matter of Liebler vFriedman, 54 AD3d 697 [2008]; Matter of Quintyne v Canary, 104 AD2d 473[1984]). Rather, it is sufficient that the notary administer an oath which is "calculated to awakenthe conscience and impress the mind of the person taking it in accordance with his religious orethical [*2]beliefs" (CPLR 2309 [b]; see Matter of Liebler vFriedman, 54 AD3d at 698; Matter of Quintyne v Canary, 104 AD2d at 475), or"obtain[ ] a statement from each of the signatories as to the truth of the matter to which theysubscribed their names" (Matter of Brown v Suffolk County Bd. of Elections, 264 AD2d489 [1999]; see Matter of Helfand v Meisser, 22 NY2d 762 [1968], affg 30AD2d 670 [1968]; Matter of LeBron vClyne, 65 AD3d 801, 802 [2009]; Matter of Imre v Johnson, 54 AD3d 427, 428 [2008]; Matter ofMerrill v Adler, 253 AD2d 505, 506 [1998]; Matter of Andolfi v Rohl, 83 AD2d 890[1981]). When a notary public signs a designating petition, his or her signature and statementsenjoy a "strong presumption of regularity" (Matter of Frazier v Leon, 186 AD2d 99, 100[1992]; see Matter of Rittersporn v Sadowski, 48 NY2d 618, 619 [1979]; Matter ofO'Dea v Bell, 242 AD2d 349, 350 [1997]; Matter of Boyland v Board of Elections in Cityof N.Y., 104 AD2d 463 [1984]; Matter of Napier v Salerno, 74 AD2d 960 [1980]).
Here, the petitioner presented testimony establishing that Negron witnessed six of thesignatures on his designating petition in his capacity as a notary public without administering anoath in any form to the signatories or otherwise obtaining from them a statement affirming thetruth of the matter to which they subscribed their names. However, the petitioner failed to presentany evidence which would rebut the strong presumption of regularity established with respect tothe remaining 443 signatures which Negron witnessed in his capacity as a notary public.Furthermore, aside from the testimony pertaining to the six aforementioned signatures, thepetitioner did not present any evidence which would rebut Negron's testimony that he obtained astatement from each of the signatories as to the truth of the matter to which they subscribed theirnames. Accordingly, contrary to the determination of the Supreme Court, the petitioner failed toestablish that all of the signatures to which Negron attested in his capacity as notary public wereobtained in violation of Election Law § 6-132 (3). Discounting the subject six signatures asinvalid, the designating petition contained a sufficient number of valid signatures to support thepetition. Moreover, even if all of the signatures to which Negron attested in his capacity as anotary public were invalidated, there remain 575 signatures on the designating petition leftunchallenged by the petitioner that cannot be invalidated for failure to comply with Election Law§ 6-132 (3) and, hence, more than the 500 required by the Election Law (seeElection Law § 6-136).
Furthermore, the Supreme Court erred in determining that the petitioner met her burden ofestablishing by clear and convincing evidence that Negron participated in the fraudulentprocurement of signatures such that the designating petition should be invalidated in its entirety(see generally Matter of Harris vDuran, 76 AD3d 658 [2010]; Matter of Testa v DeVaul, 65 AD3d 651 [2009]). "As a generalrule, a candidate's designating petition will be invalidated on the ground of fraud only if there is ashowing that the entire designating petition is permeated with fraud" (Matter of Volino vCalvi, 87 AD3d 657, 658 [2d Dept 2011]; see Matter of Ferraro v McNab, 60 NY2d601, 603 [1983]; Matter of Harris vDuran, 76 AD3d 658, 659 [2010]; Matter of Drace v Sayegh, 43 AD3d 481, 482 [2007]). However,"[e]ven when the designating petition is not permeated with fraud, the petition generally will beinvalidated where the candidate has participated in or is chargeable with knowledge of the fraud"(Matter of Volino v Calvi, 87 AD3d 657, 658 [2011]; see Matter of Tapper v Sampel, 54 AD3d 435 [2008]; Matter ofDrace v Sayegh, 43 AD3d at 482; Matter of Leonard v Pradhan, 286 AD2d 459[2001]). Although Negron may not have acted in strict compliance with Election Law §6-132 (3) in collecting six of the signatures, "it has not been established that he acted fraudulentlyor did anything that would warrant invalidating the entire designating petition" (Matter ofNolin v McNally, 87 AD3d &804, 806 [3d Dept 2011]; see Matter of Berney v Ragusa, 76 AD3d 647 [2010]; Matter of Harris v Duran, 76 AD3d658 [2010]; Matter of McRae v Jennings, 307 AD2d 1012 [2003]). There has beenno finding that the subject six signatures were not authentic or that Negron failed personally towitness the subscription of any of the signatures to which he attested (cf. Matter of Haskell vGargiulo, 51 NY2d 747 [1980]; Matter of Cirillo v Gardiner, 65 AD3d 638 [2009]; Matter of Tapper v Sampel, 54 AD3d435 [2008]). Moreover, any irregularities relating to the designating petition did not rise tothe level at which it could be said that the designating petition was permeated with fraud (see Matter of Harris v Duran, 76 AD3d658 [2010]; Matter of McRae v Jennings, 307 AD2d 1012 [2003]). Accordingly, theSupreme Court should have denied the petition to invalidate the designating petition anddismissed the proceeding. Mastro, J.P., Leventhal, Hall and Lott, JJ., concur.