IN RE: Donald S. BUTTENSCHON and Marianne Buttenschon (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioners commenced these proceedings pursuant to Election Law § 16–102 with separate petitions seeking to invalidate designating petitions pursuant to which Christopher J. Salatino (respondent) sought to be placed on the primary election ballots for the Working Families Party and Democratic Party as a candidate for the office of New York State Assembly, 119th Assembly District.  In appeal No. 1, respondent appeals from an order that, inter alia, granted the petition seeking to invalidate the Working Families Party designating petition and, in appeal No. 2, he appeals from an order that, inter alia, granted the petition seeking to invalidate the Democratic Party designating petition.

In appeal No. 1, respondent contends that Supreme Court erred in determining that three signatures on the Working Families Party designating petition were invalid on the ground that the signatories had addresses in the Town of Whitestown and their signatures were witnessed by respondent in his capacity as commissioner of deeds for the City of Utica inasmuch as petitioners failed to submit evidence establishing that those signatures were not made in the City of Utica.  That contention is raised for the first time on appeal and is therefore not properly before us (see Matter of Davis v. Czarny, 153 A.D.3d 1556, 1557, 60 N.Y.S.3d 626 [4th Dept. 2017];  Crowner v. King, 151 A.D.3d 1858, 1858, 54 N.Y.S.3d 267 [4th Dept. 2017];  Cook v. Peterson, 137 A.D.3d 1594, 1599, 28 N.Y.S.3d 501 [4th Dept. 2016] ).

Contrary to respondent's contention in appeal No. 2, the court properly invalidated his Democratic Party designating petition on the basis of fraud.  “As a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with that fraud” (Matter of Perez v. Galarza, 21 A.D.3d 508, 508, 800 N.Y.S.2d 574 [2d Dept. 2005], lv denied 5 N.Y.3d 706, 801 N.Y.S.2d 800, 835 N.E.2d 660 [2005] ).  “Even where the designating petition is not permeated with fraud, however, when the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated” (id. at 509, 800 N.Y.S.2d 574).  Here, petitioners established that multiple subscribing witnesses, including respondent, attested falsely that they had witnessed certain signatures on the designating petition inasmuch as they had allowed third-parties to sign the petition on behalf of the person named as the signatory on the designating petition (see Matter of Valenti v. Bugbee, 88 A.D.3d 1056, 1058, 930 N.Y.S.2d 319 [3d Dept. 2011] ), and that respondent attested to certain signatures although he was not “in the presence of the signatories when [they] signed the [designating] petition” (Matter of McHale v. Smolinski, 133 A.D.2d 520, 520, 519 N.Y.S.2d 890 [4th Dept. 1987];  see Election Law § 6–132[2]; Matter of Tani v. Luddy, 32 Misc.2d 53, 55, 221 N.Y.S.2d 314 [Sup. Ct., Westchester County 1961] ).  Thus, the court properly determined that respondent's participation in fraudulent acts warranted invalidating the designating petition for the Democratic Party (see Matter of Flower v. D'Apice, 104 A.D.2d 578, 578, 479 N.Y.S.2d 281 [2d Dept. 1984], affd 63 N.Y.2d 715, 479 N.Y.S.2d 982, 468 N.E.2d 1119 [1984] ).