IN RE: Frank J. Scaturro

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

IN RE: Frank J. Scaturro, etc., et al., appellants- respondents, v. Daniel P. Maloney, etc., respondent- appellant, Nassau County Board of Elections, et al., respondents.

2010-07977 (Index No. 14254/10)

Decided: August 26, 2010

ANITA R. FLORIO, J.P. HOWARD MILLER THOMAS A. DICKERSON JOHN M. LEVENTHAL CHERYL E. CHAMBERS, JJ.

Argued-August 25, 2010

DECISION & ORDER

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Daniel P. Maloney as a candidate in a primary election to be held on September 14, 2010, for the nomination of the Republican Party as its candidate for the public office of Representative in Congress from the 4th Congressional District, the petitioners appeal from a final order of the Supreme Court, Nassau County (Winslow, J.), dated August 16, 2010, which, after a hearing, in effect, denied the petition and dismissed the proceeding, and Daniel P. Maloney cross-appeals from stated portions of the same final order.

ORDERED that the cross appeal is dismissed, without costs or disbursements, as Daniel P. Maloney is not aggrieved by the final order (see CPLR 5511);  and it is further,

ORDERED that the final order is reversed, on the law, without costs or disbursements, the petition and the proceeding are reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith, to be held forthwith, and a new determination on the petition thereafter in accordance herewith.

In this “anticipatory” invalidation proceeding, the petitioners raised objections to the designating petition of candidate Daniel P. Maloney, alleging, inter alia, that certain signatures on the designating petition were the result of forgery or fraud, and that some dates relating to certain other signatures on the petition had been altered without such alterations being initialed.   In addition, the petitioners challenged certain signatures on the designating petitions where the name had been printed by the signatories, rather than signed in script.

At a hearing held before the Supreme Court, the petitioners, seeking to invalidate the challenged signatures, presented documentary evidence which was reviewed by the Supreme Court.   During the hearing, the Supreme Court reserved its ruling with respect to the majority of the challenged signatures, pending an anticipated determination of the Nassau County Board of Elections (hereinafter the Board) with respect to the validity of those signatures.   Subsequently, the Board, in effect, concluded that Maloney's designating petition was valid “pending court determination.”   The Supreme Court ultimately adopted the Board's “rulings on petition objections,” which set forth the Board's conclusions.

“It is settled that boards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the [designating] petition, and that such extrinsic matters, if any, are to be determined in court proceedings only” (Schwartz v. Heffernan, 304 N.Y. 474, 480).   Boards of election are vested only with the authority to perform a “ministerial examination” of a designating petition (Schwartz v. Heffernan, 304 N.Y. at 480;  see Matter of Feustel v. Garfinkle, 29 AD3d 831, 831-832;  Matter of Sullivan v New York City Bd. of Elections, 224 A.D.2d 565;  Matter of Bednarsh v. Cohen, 267 App.Div. 133, 135;  Matter of Waters v. Cohen, 248 App.Div. 830).   Thus, it is not within the power of a board of elections to make determinations respecting issues of fact (see Matter of Feustel v. Garfinkle, 29 AD3d at 831-832;  Matter of Bednarsh v. Cohen, 267 App.Div. at 135;  Matter of Waters v. Cohen, 248 App.Div. at 830).

Here, the petitioners' objections to numerous signatures raised issues of fact as to the validity of those signatures, including issues with respect to allegations of fraud and forgery.   However, on the record before us, our review is hampered because it is unclear whether the Supreme Court made specific independent factual findings and determinations with respect to these issues.   As it was only within the authority of the Supreme Court to make such factual determinations, the matter must be remitted to the Supreme Court, Nassau County, to revisit the petitioners' evidence, as previously presented with respect to the challenged signatures, and make determinations as to whether those signatures are valid or invalid (see Matter of Feustel v. Garfinkle, 29 AD3d at 831-832).   After such review, if the Supreme Court should find a sufficient quantity of signatures to be invalid so as to render the designating petition invalid, Maloney shall be entitled to present rebuttal evidence with regard to those invalidated signatures (see Oberman v. Romanowski, 65 AD3d 992, 993).   The Supreme Court shall thereafter make a new determination on these issues in resolving this proceeding.

We note that the petitioners' objections based upon alleged defects and alterations contained in the subscribing witness statement on certain sheets of the designating petition are without merit (see Election Law §§ 6-132[2], 6-134[9];  Matter of Galante v. Ferrara, 307 A.D.2d 1007;  Matter of Berkowitz v. Harrington, 307 A.D.2d 1002, 1003;  Matter of Vekiarelis v. Del Villar, 286 A.D.2d 464;  Matter of Goodstein v. Ross, 196 A.D.2d 615), and that there is, consequently, no need for the Supreme Court to revisit these objections on remittal.

FLORIO, J.P., MILLER, DICKERSON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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