In the Matter of Palakunnathu v. Ferrara, 2009 NY Slip Op 32554(U) (N.Y. Sup. Ct. 10/13/2009), 09/020250
| Decision Date | 13 October 2009 |
| Docket Number | 09/020250 |
| Parties | In the Matter of the Application of MATHEW G. PALAKUNNATHU a/k/a MATHEW GEORGE, a candidate for the office of Councilman, Third Council District, in and for the Town of North Hempstead v. ANGELO P. FERRARA, a candidate for the office of Councilman, Third Council District, in and for the Town of North Hempstead, and JOHN A. DEGRACE and WILLIAM BIAMONTE, COMMISSIONERS, CONSTITUTING THE NASSAU COUNTY BOARD OF ELECTIONS. |
| Court | New York Supreme Court |
By Order to Show Cause dated October 5, 2009, returnable October 14, 2009 Mathew G. Palakunnathu, a/k/a Mathew George, an aggrieved candidate for the office of Councilman, Third District, in and for the Town of North Hempstead in the general election to be held on November 3, 2009 seeks a ballot name change pursuant to Section § 16-104 of the Election Law of the State of New York. The Democratic Commissioner of the Nassau County Board of Elections supported the Petitioner's request and the Republican Commissioner of the Nassau County Board of Elections opposed the relief sought by Petitioner. By agreement of counsel, the return date was advanced and a hearing held on October 9, 2009.
Petitioner testified that he requested by letter dated July 23, 2009 that the Board of Elections put the name "Mathew George" on the ballot for the general election. Petitioner acknowledged that he is registered as Mathew G. Palakunnathu and that the designating petition listed the name of the candidate as Mathew A. Palakunnathu. He further testified that he has used the name "Mathew George" since birth and only changed his name to Mathew George Palakunnathu when he was preparing to leave Nigeria to go to Kuwait to teach. Their laws required the use of three names on a passport and he petitioned the Indian High Commission to grant the change of name. Ultimately, he did not go to Kuwait, but instead came to the United States.
To support his testimony that he is known in the community and professionally as Mathew George, petitioner submitted yearbooks, in which his photograph appears and his name is listed in the caption as Mr. George, A.P. Science. The retired school principal, Herbert Hogan also testified that he did not know the Petitioner by the name Palakunnathu. Hogan stated that the school received a bonus, which included the name "Palakunnathu" and it took him a while to find out who that was, since he knew Petitioner only as Mathew George. A member of the community, Kalathil Varughese also testified that he knew the petitioner from church and from his political campaign, as Mathew George. Numerous campaign pieces and newspaper articles reporting his candidacy introduced into evidence refer to Petitioner as Mathew George. Petitioner, however, also introduced a life insurance policy and application, wherein he indicated his first name is George and his last name is Mathew. Similarly, a Verizon telephone bill and letter from World Education Services are addressed to "George Mathew."
On cross examination, petitioner admitted that he signed the July 23, 2009 letter stating that his full and correct name is Mathew George Palakunnathu; that his pay is directly deposited into bank accounts bearing the name Mathew George Palakunnathu; his tax returns are filed in the name of Mathew George Palakunnathu, and that his passport and driver's license are issued in the name of Mathew George Palakunnathu. Petitioner also testified that when he became a U.S. citizen he used the name Mathew George Palakunnathu, which is also reflected on his Social Security card.
In connection with the designation of candidates on official ballots, the word "name" as used in the Election Law should be afforded its plain, ordinary and usual sense. (Matter of Lewis v. New York State Board of Elections, 254 A.D.2d 568, 678 N.Y.S.2d 809, [3d Dept., 1998]). At common law, a person may assume any name he chooses, provided its use is free from fraud or misrepresentation and does not interfere with the rights of others. A person may run for office using an assumed name if such name has been adopted in good faith and by continuous, general and exclusive use and has achieved recognition so that it identified the candidate to the electorate. (1940 Op. Atty. Genl. 411).
This Court has found no case on point, however reported cases wherein the designating petition was being challenged based on a minor variation of the candidate's name, reflect that Petitions have been upheld. Absent any showing of any intention on the part of the candidate to mislead or confuse and no showing that the use of the candidates name as set forth on the designating petition (and her driver's license, vehicle registration and significantly for voter registration) would tend to mislead signatories as to her identity, the proceeding to invalidate the petitions wherein the candidate used her name, without the suffix "Sr." even though her daughter resided at the same address and had the same name, except that the daughter used her middle initial, was dismissed. (Peterson v. Board of Elections, 218 A.D.2d 776, 630 N.Y.S.2d 580 [2d Dept., 1995]). Designating petitions have not been invalidated where the familiar form of the candidate's first name or a nickname has been used absent proof that such name was intended to mislead potential voters. (Gumbs v. Board of Elections of City of New York, 142 A.D.2d 235 532 N.Y.S.2d 44 [2d Dept., 1988]) and in fact in one uncontested case, cited by petitioner, where that candidate demonstrated by unrefuted credible testimony that he is...
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