IN RE: Ricardo PEREZ (2005)

In a proceeding pursuant to Election Law §§ 16-100, 16-102 and § 16-116, inter alia, to invalidate a petition designating David Galarza as a candidate in a primary election to be held on September 13, 2005, for the nomination of the Democratic Party as its candidate for the public office of Member of the New York City Council, 38th Council District, the petitioners appeal from a final order of the Supreme Court, Kings County (Levine, J.), dated August 8, 2005, which, after a hearing, denied the petition and dismissed the proceeding.

ORDERED that the final order is affirmed, without costs or disbursements.

 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 (see Matter of Ferraro v. McNab, 60 N.Y.2d 601, 603, 467 N.Y.S.2d 193, 454 N.E.2d 533;  Matter of Proskin v. May, 40 N.Y.2d 829, 830, 387 N.Y.S.2d 564, 355 N.E.2d 793;  Matter of Fonvil v. Michel, 308 A.D.2d 424, 425, 764 N.Y.S.2d 190;   Matter of McRae v. Jennings, 307 A.D.2d 1012, 763 N.Y.S.2d 504;  Matter of Ragusa v. Roper, 286 A.D.2d 516, 729 N.Y.S.2d 647).   Even when 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 (see Matter of Saitta v. Rivera, 264 A.D.2d 490, 694 N.Y.S.2d 164;  Matter of Flower v. D'Apice, 104 A.D.2d 578, 479 N.Y.S.2d 281, affd. 63 N.Y.2d 715, 479 N.Y.S.2d 982, 468 N.E.2d 1119;  Matter of Layden v. Gargiulo, 77 A.D.2d 933, 934, 431 N.Y.S.2d 118).

Here, contrary to the petitioners' contention, they failed to make a prima facie showing that the designating petition was permeated with fraud (see Matter of Calvi v. McLaughlin, 264 A.D.2d 453, 694 N.Y.S.2d 444;  Matter of Miller v. Boyland, 143 A.D.2d 237, 532 N.Y.S.2d 29;  Matter of Thomas v. Simon, 89 A.D.2d 952, 454 N.Y.S.2d 98, affd. 57 N.Y.2d 744, 454 N.Y.S.2d 988, 440 N.E.2d 1335).   Of the nine witnesses who testified, six testified that the subscribing witness might have been with the candidate when he or she signed the designating petition, and two testified that the subscribing witness was with the candidate when each of them signed.   Furthermore, only one witness testified that the subscribing witness was not with the candidate when she signed the designating petition, and the petitioners presented no evidence to establish that the candidate participated in or was chargeable with the knowledge of any fraud with respect to that signature (see Matter of McRae v. Jennings, supra;  Matter of Meeks v. Pruitt, 185 A.D.2d 961, 587 N.Y.S.2d 26;  Matter of Corrente v. McNab, 96 A.D.2d 915, 465 N.Y.S.2d 847;  Matter of Cullen v. Power, 21 A.D.2d 698, 250 N.Y.S.2d 630).   Any irregularity in this single signature does not render the entire petition permeated with fraud (see Matter of O'Donnell v. Ryan, 19 A.D.2d 781, 243 N.Y.S.2d 442, affd. 13 N.Y.2d 885, 243 N.Y.S.2d 21, 192 N.E.2d 729).

In light of our determination, we do not reach the petitioners' remaining contentions.