La Mendola v. Mahoney

49 A.D.2d 798, 373 N.Y.S.2d 234, 1975 N.Y. App. Div. LEXIS 10848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 11, 1975
• Status: Published

Opinion

Order unanimously affirmed, without costs. Memorandum: Although 17 of the 57 notaries public or commissioners of deeds who obtained signatures did not administer formal oaths, the record shows that the subscribers were fully informed of the purpose of the petition, and it reveals no evidence of fraud. Special Term correctly held that the designating petition substantially complied with section 135 of the Election Law and was valid (Matter of Rosen v McNab, 25 NY2d 798, 799; Matter of Locascio v Feuer, 45 AD2d 937, affd 34 NY2d 976). Moreover, these 17 officers obtained approximately 1,136 of the total 4,131 signatures on the petition. The burden of proving the remaining 2,995 signatures invalid rests on the party attacking the validity of the designating petition (Matter of Civilette v Caccamise, 42 AD2d 1026, affd 33 NY2d 730). Therefore, assuming that the 535 signatures eventually found invalid by the Board of Elections were all included within these 2,995 remaining signatures, it is clear that at least 2,460 signatures, more than the 2,000 needed to designate, are presumptively valid (Matter of Clum v Holmes, 194 Misc 863). (Appeal from order of Erie Special Term in proceeding to invalidate designating petitions.) Present—Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ. (Order entered August 27,1975.)