Opinion
2012-08-15
In the Matter of Charles D. LAVINE, petitioner-respondent, v. Michelle IMBROTO, respondent-appellant, et al., respondents. (Proceeding No. 1) In the Matter of Michelle Imbroto, appellant, v. Charles D. Lavine, respondent-respondent, et al., respondents. (Proceeding No. 2).
, J.P., ANITA R. FLORIO, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to Election Law § 16–102, inter alia, to validate a petition designating Charles D. Lavine as a candidate in a primary election to be held on September 13, 2012, for the nomination of the Democratic Party as its candidate for the public office of Member of the Assembly, 13th Assembly District, and a related proceeding, inter alia, to invalidate the designating petition, Michelle Imbroto appeals from a final order of the Supreme Court, Nassau County (Winslow, J.), entered August 6, 2012, which, after a hearing, granted the petition to validate the designating petition, denied the petition, inter alia, to invalidate the designating petition, and, in effect, dismissed the proceeding, inter alia, to invalidate the designating petition.
ORDERED that the final order is affirmed, without costs or disbursements.
Generally, a designating petition will be invalidated on the ground of fraud only “where there is a showing that the entire designating petition is permeated with fraud” (Matter of Finn v. Sherwood, 87 A.D.3d 1044, 1045, 930 N.Y.S.2d 20;see Matter of Proskin v. May, 40 N.Y.2d 829, 829–830, 387 N.Y.S.2d 564, 355 N.E.2d 793;Matter of Harris v. Duran, 76 A.D.3d 658, 659, 905 N.Y.S.2d 777;Matter of Robinson v. Edwards, 54 A.D.3d 682, 683, 865 N.Y.S.2d 223;Matter of Ragusa v. Roper, 286 A.D.2d 516, 729 N.Y.S.2d 647;Matter of Del Pellegrino v. Giuliani, 153 A.D.2d 724, 725, 545 N.Y.S.2d 194), or “where the candidate has participated in or is chargeable with knowledge of the fraud” (Matter of Finn v. Sherwood, 87 A.D.3d at 1045, 930 N.Y.S.2d 20;see Matter of Harris v. Duran, 76 A.D.3d at 659, 905 N.Y.S.2d 777).
Here, the appellant contends that 4 out of approximately 690 signatures were invalid on the ground of fraud. Contrary to the appellant's contention, the hearing testimony regarding these 4 signatures did not demonstrate by clear and convincing evidence that the entire designating petition was permeated with fraud ( see Matter of Finn v. Sherwood, 87 A.D.3d at 1045, 930 N.Y.S.2d 20;see also Matter of Harris v. Duran, 76 A.D.3d at 659, 905 N.Y.S.2d 777;Matter of Ferraro v. McNab, 96 A.D.2d 917, 466 N.Y.S.2d 101,affd.60 N.Y.2d 601, 467 N.Y.S.2d 193, 454 N.E.2d 533;cf. Matter of Proskin v. May, 40 N.Y.2d at 829–830, 387 N.Y.S.2d 564, 355 N.E.2d 793;Matter of Lerner v. Power, 22 N.Y.2d 767, 292 N.Y.S.2d 471, 239 N.E.2d 389;Matter of Harry v. Liblick, 119 A.D.2d 845, 501 N.Y.S.2d 469). Moreover, the appellant failed to meet her burden of establishing that the candidate participated in or was chargeable with knowledge of any fraud ( see Matter of Finn v. Sherwood, 87 A.D.3d at 1045, 930 N.Y.S.2d 20;Matter of Ragusa v. Roper, 286 A.D.2d at 517, 729 N.Y.S.2d 647;cf. Matter of Miller v. Gumbs, 207 A.D.2d 512, 513, 615 N.Y.S.2d 932).
Contrary to the appellant's contention, the Supreme Court properly determined that no adverse inference should be drawn against the candidate based on the failure of certain subscribing witnesses to appear at the hearing. The Supreme Court properly quashed the subpoenas with respect to each of those subscribing witnesses on the ground that the subpoenas were improperly served ( seeCPLR 308, 2303[a]; cf. Serraro v. Staropoli, 94 A.D.3d 1083, 943 N.Y.S.2d 201).
The appellant's remaining contention is without merit.