Ferreyra v. Arroyo

• Decision Date: 14 May 2020
• Docket Number: Index 260201/2020,11605
• Citation: Ferreyra v. Arroyo, 183 A.D.3d 473, 123 N.Y.S.3d 604 (N.Y. App. Div. 2020)
• Parties: IN RE Ramona FERREYRA, Petitioner–Appellant, Amanda N. Septimo, Petitioner–Appellant, v. Carmen E. Arroyo, Respondent–Respondent, The Board of Elections in the City of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 473

123 N.Y.S.3d 604

IN RE Ramona FERREYRA, Petitioner–Appellant,

Amanda N. Septimo, Petitioner–Appellant,

v.Carmen E. Arroyo, Respondent–Respondent, The Board of Elections in the City of New York, Respondent.

11605

Index 260201/2020

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MAY 14, 2020

Lichten & Bright, P.C., New York (Daniel R. Bright of counsel), for appellants.

Stanley Kalmon Schlein, Bronx, and Law Offices of Edmond J. Pryor, Bronx (Edmond J. Pryor of counsel), for Carmen E. Arroyo, respondent.

Acosta, P.J, Richter, Mazzarelli, Gesmer, JJ.

Order, Supreme Court, Bronx County(John W. Carter, J.), entered on or about May 5, 2020, which confirmed the report of a Referee recommending the denial of petitioners' request for an order pursuant to article 16 of the Election Law declaring invalid the candidacy of respondentCarmen E. Arroyo for election to the State Assembly from the 84th Assembly District in the Bronx, affirmed, without costs.

The basis of petitioners' objection to the nominating petitions submitted by respondent Arroyo was that, although the campaign did not obtain blank petition sheets from their printer until February 27, 2020, 333 of the 576 signatures deemed valid by the Board of Elections were dated February 25 or February 26; that is, that the signatures were improperly backdated.Petitioners concede that, even if those signatures were to be discarded, there would still be over 240 properly dated signatures.This number crosses the threshold of 150 required under the amendments to the Election Law embodied in the Governor's Executive Order 202.2, issued on March 14, 2020.Nevertheless, petitioners argue that all of the nominating petitions should be invalidated as being hopelessly permeated with fraud.

A finding that a candidate's petition is permeated with fraud must be established by clear and convincing evidence (seeMatter of Robinson v. Edwards,54 A.D.3d 682, 683–684, 865 N.Y.S.2d 223(2d Dept.2008) ).Petitioners had that burden and did not satisfy it.Importantly, there is no allegation that the signatures in question were themselves forged or otherwise improperly secured.In fact, it was conceded that they were not.As for the claim that many of the dates were backdated, for an improper purpose, there is a dearth of evidence to support it.Certainly, there is no evidence meeting the clear and convincing standard.Before the Referee, petitioners did not present a single witness.We defer to the court's finding that the documentary evidence, which consisted largely of the records before the Board of Elections and the affidavit of a representative of the printing company, was insufficient to establish that respondent intended to commit a fraud.We further find that petitioners elicited insufficient proof to establish that the candidate herself was involved in any fraud.

We reject petitioners' argument that there is a sufficient basis to overturn the Referee's refusal to admit as evidence, under the declaration against interest exception to the hearsay rule, a conversation between petitioner Septimo and one of the subscribing witnesses.That person, who never appeared at the Referee's hearing, allegedly stated that he was instructed to leave blank the spaces next to the signatures at issue where the date of signature was supposed to be entered.

The dissent posits that petitioners' failure to produce any witnesses was not fatal to their ability to have shifted the burden at the hearing to respondent.Indeed, the Court of Appeals in Matter of Aronson v. Power(22 N.Y.2d 759, 292 N.Y.S.2d 465, 239 N.E.2d 385(1968) ) reversed this Court's holding that the petitioner did not shift the burden on a claim of fraud ( Matter of Aronson v. Power,30 A.D.2d 651, 291 N.Y.S.2d 49(1st Dept.1968) ), even though the petitioner was unable to secure the testimony of material witnesses.However, in that case the Appellate Division made reference to actual "instances of fraudulent practices" having been established by the petitioners( 30 A.D.2d at 651, 291 N.Y.S.2d 49 ).Here, one must resort to sheer speculation to conclude that there was a pattern of fraud.

We have considered petitioners' remaining arguments and find them unavailing.

All concur except Gesmer, J. who dissents in a memorandum as follows:

GESMER, J. (dissenting)

I respectfully dissent.The record before us demonstrates that respondent Arroyo submitted a designating petition that is permeated with fraud and irregularities ( Matter of Proskin v. May,40 N.Y.2d 829, 830, 387 N.Y.S.2d 564, 355 N.E.2d 793(1976) ), knowledge of which can be charged to her.¹Accordingly, I would reverse and grant the petition to invalidate respondent candidate's designating petition.

Signatures on designating petitions are required to be dated and subscribed ( Election Law § 6–132 )."The substantive requirements of section 6–132‘are designed to facilitate the discovery of irregularities or fraud in designation petitions,’ " and strict compliance is therefore required ( Matter of Alamo v. Black,51 N.Y.2d 716, 717, 431 N.Y.S.2d 1001, 410 N.E.2d 1228(1980)[invalidating petition where witness statement failed to declare that the signatories signed on the dates indicated], quotingMatter of Rutter v. Coveney,38 N.Y.2d 993, 994, 384 N.Y.S.2d 437, 348 N.E.2d 913(1976) ).Here, respondent candidate concedes that she did not obtain the blank petition sheets from the printer until February 27, 2020.Nonetheless, on 41 of the 78 pages she submitted to the Board of Elections, the signatures were all dated February 25 or 26.Therefore, 512 out of 944 signatures submitted in the petition are backdated to dates preceding the candidate's receipt of the blank petition pages.Furthermore, 14 of the 28 subscribing witnesses, including the candidate's chief of staff, swore that signatures dated February 25 or 26 were placed on the petition in their presence on those dates.Therefore, each of those statements was materially false.Indeed, her chief of staff swore to nine backdated petition pages, one of which included the signature of the candidate herself.Significantly, the Board disqualified all but 576 of the signatures, which the candidate does not contest.Of the 576 not disqualified, 333 were backdated.

The remaining 243 signatures are not questioned, which exceeds the 150 required this year.Nevertheless, it is my view that petitioners have made out a prima facie case that the extent of the backdating, the flagrancy of the violation of the election law, and the participation of the candidate and her chief of staff establishes that the designating petition was so permeated with fraud that the candidate should be disqualified (Matter of Buchanan v. Espada,230 A.D.2d 676, 677, 646 N.Y.S.2d 680(1st Dept.1996), affd88 N.Y.2d 973, 648 N.Y.S.2d 426, 671 N.E.2d 538(1996);Matter of Tapper v. Sampel,54 A.D.3d 435, 436, 862 N.Y.S.2d 610(2d Dept.2008), lv denied11 N.Y.3d 701, 864...