McHale v. Smolinski

133 A.D.2d 520, 519 N.Y.S.2d 890, 1987 N.Y. App. Div. LEXIS 49990

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1987
• Status: Published

Opinion

Order unanimously reversed on the law without costs and petition granted. Memorandum: Candidate Francina J. Cartonia filed a 68-page designating petition for Democratic nomination for Erie County Legislator (Fifteenth District) containing 998 signatures. The questionable and irregular signature-collecting process permeated the petition with fraud and it should be invalidated. Numerous violations of Election Law § 6-132 occurred. Five subscribing witnesses, whose petition sheets accounted for 656 signatures, were not, on a number of occasions, in the presence of the signatories when the signatories signed the petition as required by Election Law § 6-132 (2) (see, Matter of Tani v Luddy, 32 Misc 2d 53, 55). Nine different sheets contain the signatures of at least 17 persons who testified that someone other than the subscribing witness witnessed their signatures (see, Matter of Metzger v Eagan, 24 AD2d 719, affd 16 NY2d 837). Further, we find it incredible that two of the subscribing witnesses could have collected 160 and 101 signatures, respectively, in a period of a few hours in one evening. In addition, the record reveals at least nine clearly forged signatures. Finally, undisputed testimony shows that the candidate and those closely connected to her (her mother and father) participated in this fraudulent signature-collecting process (see, Matter of Villafane v Caban, 104 AD2d 579). The combination of these improprieties permeates the petition with fraud and casts the validity of the entire petition into doubt (see, Matter of Haskell v Gargiulo, 51 NY2d 747; Matter of Proskin v May, 40 NY2d 829). (Appeal from order of Supreme Court, Erie County, Honan, J.—Election Law.) Present—Doerr, J. P., Denman, Boomer, Balio and Davis, JJ. (Order entered Aug. 21, 1987.)