Sgammato v. Perillo
| Decision Date | 19 August 2015 |
| Docket Number | 2015-07477 |
| Citation | 15 N.Y.S.3d 440,2015 N.Y. Slip Op. 06630,131 A.D.3d 648 |
| Parties | In the Matter of Joseph N. SGAMMATO, et al., appellants-respondents, v. John PERILLO, et al., respondents-appellants, et al., respondents. (Proceeding No. 1) In the Matter of John Perillo, et al., respondents-appellants, v. Dana Levenberg, et al., appellants-respondents, et al., respondents. (Proceeding No. 2). |
| Court | New York Supreme Court — Appellate Division |
In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a petition designating John Perillo, Michael R. Milner, and Aaron Spring as candidates in a primary election to be held on September 10, 2015, for the nomination of the Republican Party as its candidates for the public offices of Supervisor, Member of the Town Council, and Member of the Town Council, respectively, of the Town of Ossining, and a related proceeding, among other things, to validate that designating petition, Joseph N. Sgammato, Dana Levenberg, Karen M. D'Attore, and Elizabeth R. Feldman appeal, as limited by their brief, from so much of a final order of the Supreme Court, Westchester County (Adler, J.), dated August 7, 2015, as denied those branches of the petition which were to invalidate so much of the petition as designated John Perillo and Michael R. Milner as candidates, and John Perillo, Michael R. Milner, and Aaron Spring cross-appeal, as limited by their brief, from so much of the same final order as granted that branch of the petition which was to invalidate so much of the petition as designated Aaron Spring as a candidate.
ORDERED that the final order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the petition which was to invalidate so much of the petition as designated John Perillo and Michael R. Milner as candidates in the primary election to be held on September 10, 2015, for the nomination of the Republican Party as its candidates for the public offices of Supervisor and Member of the Town Council, respectively, of the Town of Ossining is granted, and the Westchester County Board of Elections is directed to remove the names of John Perillo and Michael R. Milner from the appropriate ballots; and it is further,
ORDERED that the final order is affirmed insofar as cross-appealed from, without costs or disbursements.
John Perillo, Michael R. Milner, and Aaron Spring (hereinafter collectively the candidates) filed a petition designating them as candidates in the primary election to be held on September 10, 2015, for the nomination of the Republican Party as its candidates for the public offices of Supervisor, Member of the Town Council, and Member of the Town Council, respectively, of the Town of Ossining. The petition contained 343 signatures; 205 valid signatures were required. Joseph N. Sgammato filed objections to the designating petition with the Westchester County Board of Elections (hereinafter the Board). The Board reviewed the objections and struck 35 signatures, leaving 308 valid signatures, and therefore determined that the designating petition was valid.
Joseph N. Sgammato, Dana Levenberg, Karen M. D'Attore, and Elizabeth R. Feldman (hereinafter collectively the objectors) then commenced a proceeding to invalidate the designating petition. They alleged in the invalidation petition that the designating petition was “permeated with fraud, including candidate fraud,” and that all signatures on nine designated sheets (hereinafter the contested sheets), representing a total of 147 signatures, were invalid since “the subscribing witness did not, in fact, witness all of the signatures on each of those sheets.” The candidates commenced a related proceeding to validate the designating petition.
The Supreme Court conducted a hearing on the invalidation and validation petitions, at which the objectors noted that Spring's mother, Caren Shapiro, was the subscribing witness for each of the contested sheets. The objectors contended that, contrary to Shapiro's witness statements on the contested sheets, she was not actually present when the 147 disputed signatures were affixed to the petition and the signers identified themselves. They called six of those signers as witnesses, and each of them testified that Spring had collected their signatures, and that Shapiro was not with him when they signed the petition. The objectors noted that Spring was not qualified to be a subscribing witness because, at the time the signatures were collected, in June and July 2015, he was only 17 years old, and was not a registered voter in New York. Spring and Shapiro also testified at the hearing, and they both testified that Shapiro was with Spring when he collected all of the signatures on the contested sheets.
At the conclusion of the hearing, the Supreme Court determined that the objectors had demonstrated, by clear and convincing evidence, that the individuals whose signatures were affixed to the contested sheets did not sign those sheets, or identify themselves, in Shapiro's presence, and that Shapiro fraudulently and knowingly signed and submitted false witness statements. In addition, the court found that Spring both participated in, and was chargeable with knowledge of, the fraud. The court rejected the testimony of Spring and Shapiro as “patently incredible” and “impossible to believe.” The court therefore granted that branch of the petition which was to invalidate so much of the designating petition as designated Spring as a candidate. However, the court, noting that the objectors had not presented evidence that Perillo and Milner were involved with the fraud, denied those branches of the petition which were to invalidate so much of the designating petition as designated them as candidates. The court also denied the candidates' petition to validate the designating petition as academic, since the Board had determined that the designating petition was valid. The objectors appeal, and the candidates cross-appeal, from the final order.
Initially, the candidates contend that the petition to invalidate should have been dismissed pursuant to CPLR 3016(b), since the allegations in the petition, made in connection with the claim of fraud, were not sufficiently specific to apprise them of the allegations of the fraud. The candidates' contention is without merit. Here, the petition to invalidate alleged, inter alia, that all 147 signatures on the contested sheets were invalid because the subscribing witness did not witness all of the signatures on each of the pages, and that the entire petition was permeated with fraud, including candidate fraud. Moreover, the petition to invalidate incorporated by reference specific objections filed by the objectors with the Board prior to the commencement of these proceedings (see Matter of Haygood v. Hardwick, 110 A.D.3d 931, 932, 973 N.Y.S.2d 711 ; LaMarca v. Quirk, 110 A.D.3d 808, 810, 973 N.Y.S.2d 254 ). Thus, the candidates received adequate notice of the allegations supporting the claims that the subscribing witness...
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