Wymczak v. Niagara County Bd. of Elections
This text of 2025 NY Slip Op 31528(U) (Wymczak v. Niagara County Bd. of Elections) is published on Counsel Stack Legal Research, covering New York Supreme Court, Niagara County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Wymczak v Niagara County Bd. of Elections 2025 NY Slip Op 31528(U) April 29, 2025 Supreme Court, Niagara County Docket Number: Index No. E187161/2025 Judge: Mario A. Giacobbe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. E187161/2025 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 04/29/2025
At a Special Term of the Supreme Court of the State of New York, held in and for the County of Niagara, at the Courthouse, 175 Hawley St, Part 3, Lockport, New York, on the 29th day of April, 2025
HON. MARIO A. GIACOBBE, J.C.C. NEW YORK STATE SUPREME COURT
STATE OF NEW YORK SUPREME COURT: COUNTY OF NIAGARA
SCOTT WYMCZAK, Objector, Index No.: E187161/2025 Petitioner, DECISION & JUDGMENT V.
NIAGARA COUNTY BOARD OF ELECTIONS MARIA FABRIZIO, purported candidate,
Respondents.
Joseph T.Bums, Esq. Attorney for Petitioner
Brittany L. Penberthy, Esq. Attorney for Respondent Maria Fabrizio
Claude A. Joerg, Esq. Attorney for Respondent Niagara County Board of Elections
MARIO A. GIACOBBE, J.C.C.
This proceeding under Election Law §16-102 was commenced by Petitioner, Scott
Wymczak, to invalidate the Democratic Party designating petition of Respondent Maria Fabrizio
("Respondent Fabrizio") naming her as a candidate for Niagara County Legislator for District #15.
Petitioner filed general and specific objections pursuant to Election Law §6-154. This matter was
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returnable on April 24, 2025, at which time counsel for parties appeared and a hearing was
scheduled.
A hearing was conducted on April 28, 2025. Petitioner called Jennifer Sandonato, Niagara
County Board of Elections Republican Commissioner, and Erin Norris, Niagara County Board of
Elections employee. Respondent Fabrizio called Molly Pasceri and Lora Allen, Niagara County
Board of Elections Democratic Commissioner.
The following items of evidence were received by the Court:
Petitioner's "A" - Petition Review Work Sheet, Designating Petition Cover Sheet
& Democratic Designating Petition Sheets #1 through #9 for Maria Fabrizio for the
Niagara County Legislative District #15
Petitioner's "B" - General Objection Forms
Petitioner's "C" - Voter Record Report
Respondents' "1" - Voter Card
Respondents' "2" - Specifications of Objections
This Court also reviewed the pleadings, affirmations and exhibits filed in NYSCEF as
Documents # 1 through # 12.
At the hearing, Commissioner Sandonato compared information relating to the name of
signor, residence and city/town information from Petitioner's "A" to the information relating to
the voter name, address and town found in Petitioner's "C." Commissioner Sandonato testified to
many instances where a signor or subscriber indicated the wrong town or city, or, in other
instances, indicated a village or hamlet instead of a town or city.
Commissioner Allen testified Respondent Board of Elections mailed Niagara County
voters "Exercise Your Right to Vote" cards containing information about the 2025 primary and
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general elections (see Respondent's #1). On one side of Respondent's #1, the name and address of
Molly R. Pasceri is listed as "3632 Day Rd, Lockport NY 14094-9450." On the reverse side
Respondent's #1, the following information is displayed in the upper left hand comer of the card:
M085712 Your Party Affiliation is: DEM
Town Ward District NEWFANE 000 005
RESIDENCE 3632 DAY RD
ADDRESS: LOCKPORT NY 14094
Molly Pasceri testified she believed she resided in Lockport. But, turning to Respondent
Board of Election's Voter Record Report for Molly Pasceri, Page #1 of Petitioner's Exhibit "C",
her address is "3632 Day RD, LOCKPORT, NY 14094" and her "Town" designation is
"NEWFANE."
Sheets #1 through #6 of Petitioner's "A", contain a STATEMENT OF WITNESS section
displaying the information of "Molly R. Pasceri" at "3632 Day Road, Lockport, NY 14094." In
the WITNESS IDENTIFICATION INFORMATION section, the Town or City is "Lockport."
A designating petition "must set forth in every instance the name of the signer, his or her
residence address, town or city (except in the city of New York, the county), and the date when
the signature is affixed" (Stoppenbach v. Sweeney, 98 N.Y.2d 431,433 [2002]). A petition must
be invalidated if the signer or subscribing witness designates the incorrect town or city (see Zobel
v. New York State Bd. of Elections, 254 A.D.2d 520, 521 [3 rd Dept1998]). The designation of a
village in lieu of a town or city does not comply with Election Law §6-130 and "renders the
designating petition invalid" (Scamacca v. Mahoney, 104 A.D.2d 730 [4th Dept 1984]).
Petitions will not be dismissed when the subscribing witness places the correct city or town
designation in the "STATEMENT OF WITNESS" and yet places the incorrect city or town in the
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"WITNESS IDENTIFICATION INFORMATION" (See Dalton v. Wayne Cnty. Bd. of Elections,
65 A.D.3d 817, 819 [4th Dept 2009]; see also Powers v. Kozlowski, 54 A.D.3d 540, 541 [4th Dept
2008]).
Unlike the situation in Dalton, supra, where a witness indicated a correct city or town
designation in the "STATEMENT OF WITNESS" but placed the incorrect city or town in the
"WITNESS IDENTIFICATION INFORMATION," Sheets #1 through #6 contain the incorrect
town or city for Ms. Pasceri in both the "STATEMENT OF WITNESS" and the WITNESS
IDENTIFICATION INFORMATION. Ms. Pasceri stated her residence was Lockport when,
according to Niagara County Board of Elections records, she should have indicated Newfane. The
Court can understand why Ms. Pasceri would have been confused about her city or town residency
designation based on testimony and evidence before the Court. However, in conformity with
Zobel, this Court finds Democratic Designating Sheets #1 through #6 of Petitioner's "A" are
invalid as the incorrect town is listed in both sections by the subscribing witness.
Even if Ms. Pasceri had designated her correct city or town on Sheets #1 through #6, it was
clear from Commissioner Sandonato's testimony that the following signatures indicated incorrect
cities or towns:
Sheet #2, Lines #1 through #20;
Sheet #3, Lines #1 through #11; and
Sheet #4, Lines #7 through #8.
Additionally, based on the testimony of Commissioner Sandonato, Democratic
Designating Sheet #7 of Petitioner's "A", Line #1, and Lines #3 through #20, all contain the
incorrect city or town. This Court finds Democratic Designating Sheet #7 of Petitioner's "A" to
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be in invalid. Furthermore, Democratic Designating Sheets #8 of Petitioner's "A", Lines #1
through #6 also contain the incorrect city or town and are invalid.
This Court finds the two (2) signatures on Sheet #9 of Petitioner's A are valid.
It is the finding of this Court that Respondent Fabrizio's Democratic Designating Petition
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