Petitioner moves for an order: (1) declaring null and void the petition filed with the Rensselaer County Board of Elections ("BOE") designating the respondent-candidates as candidates for the September 18, 2007 Conservative Party primary election; and (2) restraining the BOE from printing and placing the names of the respondent-candidates on the ballot at such election. Respondent Premo opposes the petition through an answer.

This application was brought on by Order to Show Cause signed by this Court (Hummel, J.) on July 31, 2007. The Verified Petition was made returnable on August 7, 2007, and a summary hearing began before the undersigned on such date and was completed on August 13, 2007 (see Election Law § 16-100). The Court has had an opportunity to consider the evidence presented at such hearing. The Court has also observed the demeanor of the witnesses and made determinations with respect to their credibility. Based on the papers submitted and the credible evidence adduced at the hearing, the Court determines, for the reasons set forth below, that the petition must be granted.

Petitioner Judith Wos is a qualified voter and resident of the Town of North Greenbush ("Town"). She is entitled to vote in the September 18, 2007 Conservative Party primary election ("Election") in such Town.

On or about July 19, 2007, a petition was filed with the BOE designating the following persons as candidates for Town office on the Conservative Party line at such Election: Frederick Ashworth for Town Supervisor; Florence Albarelli for Town Council; Janice Liberty for Town Clerk; Mark Premo for Highway Superintendent; and Patricia Stout-Smith, for Receiver of Taxes.

On or about July 23, 2007, Florence Albarelli declined her designation. In an affidavit accompanying the Verified Petition, she avers that she never acquiesced, consented or gave her permission to be a candidate for public office. On or about July 26, 2007, the name of Gregory Spencer was substituted as candidate for Town Council. [*2]

Petitioner filed objections to the designating petitions with the BOE on or before July 23, 2007. Specifications of objections were filed on July 30, 2007. Objections to the substitution of Gregory Spencer were filed on July 30, 2007, and specification of such objections were filed on August 6, 2007.

Petitioner's principal contention is that the name of Florence Albarelli was knowingly and intentionally printed on the designating petition without her assent, consent or acceptance for the purpose of fraudulently inducing party members to sign the petition. According to petitioner, these actions were taken as part of a fraudulent scheme to substitute a candidate whose name did not appear on the designating petition.

In her affidavit, Mrs. Albarelli avers that: she never agreed or consented to run for Town office; she did not consent, agree or authorize her name to be placed on the designating petition and did not wish to be a candidate; she did not authorize or request individuals to gather signatures on her behalf; and such signatures were collected without her knowledge or involvement. She further avers that despite her longstanding membership in the Conservative Party and her role as County Committeeperson from Election District 4, Town of North Greenbush, she was not asked to sign the designating petition. This, she contends, was done to prevent her from discovering that she was listed as a candidate for office.

Respondent Brian Premo opposes the petition on several grounds. First, he contends that the petition was not properly verified and, therefore, the application should be dismissed for lack of subject matter jurisdiction. Second, respondent Premo argues that Mrs. Albarelli was named on the designating petition based on a good-faith belief that she would be willing to run for Town Council and that she supported his candidacy for Highway Supervisor. He further contends that he was unable to contact her prior to circulating the designating petition due to her vacation. Finally, respondent Premo contends that a sufficient number of Conservative Party members who signed the petition did so to support his candidacy, and did not sign based on Mrs. Albarelli's name appearing on the slate of candidates.

Verified Petition

A special proceeding to challenge a designating petition must "be heard upon a verified petition" (Election Law § 16-116). "[T]his requirement has been strictly adhered to and deemed jurisdictional in nature" (Matter of Rose v. Smith, 220 AD2d 922, 923 [3rd Dept 2005], citing Matter of Goodman v Hayduk, 45 NY2d 804, 806 [1978]).

Respondent Premo argues that the verified petition in this proceeding is defective. He bases this on the verification having been sworn to on July 30, 2007, and the petition having been signed by counsel on July 31, 2007. Thus, respondent contends that the petition is invalid on its face and, therefore, the Court lacks jurisdiction to consider the claim of fraud raised therein.

The petition in this matter is accompanied by verification from petitioner Wos stating that she read the petition and knows the contents to be true to her own knowledge, except as to matters stated to be upon information and belief, which she believes to be true. Further, petitioner testified that she reviewed the petition (albeit in unsigned form), was aware of its contents and believed it to be true at the time she executed the notarized verification. She also testified that the principal complaint in the petition was a claim of election fraud based on the failure to obtain Mrs. Albarelli's consent to run for public office the only claim pursued by [*3]petitioner and the only objection detailed in the specification of objections attached to the petition. Under these circumstances, and in the absence of prejudice to respondents (see Matter of Rose, 220 AD2d at 923),^[FN1] the Court concludes that the brief lag between petitioner's signing of the verification and the signing and dating of the petition by petitioner's counsel does not deprive the Court of jurisdiction to entertain the merits of the petition.

Election Fraud

The petitioning process by which a candidate may be designated for party nomination at a primary election is set forth in Article 6 of the Election Law. Nothing in Article 6, however, expressly requires a person whose name is set forth as a candidate on a designating petition to provide prior authorization. Rather, Article 6 provides a process for declination following the circulation of petitions. "A person designated as a candidate for nomination . . . may, in a certificate signed and acknowledged by him, and filed as provided in this article, decline the designation" (Election Law § 6-146 [1]). Thus, as an enrolled member of the Conservative Party, Article 6 provided Mrs. Albarelli with the right to decline the designation a right that she exercised here.

Despite the absence of any statutory requirement that a candidate authorize or consent to having their name placed on a designating petition, courts have recognized that the designation of a sham" candidate who has no intention of running for office may be struck down as a fraud upon the voters. Thus, in Matter of Farbstein v. Suchman (26 NY2d 564, 566-67 [1970]), the Court of Appeals stated that a party committee may not control a nomination by using a stand-in candidate who does not intend to serve. "A plan to utilize a stand-in candidate who intends to decline in order to permit a Committee to Fill Vacancies to control a designation, if sufficiently established as a means of circumventing the policy of the Election Law, may be held invalid" (id.). However, the Court in Farbstein held that plaintiffs had failed to state such a claim despite the former candidate's informal "announcement" that he would not accept the designation while his petition still was being circulated to party members because there was no showing that the candidate was named with an intent to later decline the designation (id.).

In Matter of Mahoney v. May (40 NY2d 906, 907 [1976]), the Court of Appeals applied Farbstein to a claimed fraudulent candidacy and upheld the Appellate Division's determination that petitioner had failed to adduce sufficient evidence of election fraud.The Court cautioned against presuming reliance on the part of voters or party members where candidate substitution was a long-standing and common practice:

Moreover, in considering the facts, the general practice of the parties, particularly the minor parties, to substitute candidates is so prevalent that no one is or should be deceived. The situation, [*4]of course, would be quite different if there were evidence, beyond the practice itself, to establish actual deception of the voters or members of the party involved. As for the policy of the Election Law, since the Legislature has known of the practice of substitution of candidates without fraud these many decades, if the practice violates legislative policy, the Legislature should speak to it by appropriate amendment of the Election Law.

In Matter of Ferguson v. New York Liberal Party State Comm. (90 AD2d 586 [3d Dept 1982], appeal denied 57 NY2d 608), the Third Department relied upon Matter of Mahoney in rejecting a similar claim, concluding that petitioner had failed to demonstrate that voters or party members actually were deceived:

[T]he issue of the propriety of the practice of minor parties in this State to substitute candidates had been squarely addressed by the Court of Appeals. In Matter of Mahoney v May (40 NY2d 906), that court stated that unless there was evidence, beyond the practice itself, to establish actual deception of the voters, the practice would be tolerated in deference to the judgment of the Legislature which has allowed it to maintain for a long period of time (id., at p 907). In the instant case, Trial Term, after hearing testimony of the witnesses offered by the parties, found that no actual deception had been established. (Id.).In cases like Mahoney and Ferguson. which implicate a long-standing and prevalent practice of candidate substitution that counsels against presuming reliance on the part of voters and party members, courts have required proof of actual deception. However, in the absence of such a practice (or proof of other circumstances that render such a presumption unreasonable), courts have recognized that voters and party members can and will be deceived by the use of a "sham" candidate as part of a multi-candidate slate. Thus, in Matter of Richardson v. Luizzo (64 AD2d 942, 943 [2d Dept 1978], aff'd 45 NY2d 789 [1978] for reasons stated below), the Court of Appeals upheld the invalidation of a designating petition on the basis of a determination that "[a] fraud was committed on the enrolled voters of the party when the names of various candidates were placed on the designating petition without their consent." The designating petition "was misleading in that it suggested that the various candidates listed together intended to run together" (id.; see Matter of Buchanan v. Espada, 88 NY2d 973, 974 n [1996]; see also Fischer v. Peragine, 10 AD3d 620 [2d Dept 2004]).

Accordingly, this Court concludes that voters and party members are deceived when presented with a slate of candidates where one or more of such candidates have not consented to run, unless the particular circumstances of the case render such a presumption unreasonable, in which case proof of actual deception is necessary.

Thus, to succeed on her claim of election fraud, petitioner must demonstrate that Florence Albarelli was designated as a candidate for Town Council with knowledge that she was unwilling to run for office, in order to circumvent the designating process set forth in the Election Law. For purposes of this analysis, a good-faith but mistaken belief that a candidate is willing to appear on a designating petition is not sufficient to demonstrate such knowledge (see Farbstein, 26 NY2d at 566-67). Petitioner must also demonstrate deception in accordance with the foregoing. Further, petitioner must overcome the presumption of validity that attaches to designating petitions (Election Law § 6-154 [1]), and establish her claim of election fraud by clear and convincing evidence (see Matter of Kraham v. Rabbitt, 11 AD3d 808 [3d Dept 2004]). Despite these heavy burdens, the Court concludes, for the reasons set forth below, that petitioner [*5]has succeeded in establishing her claim.

1.Knowledge / Intent

It is undisputed that the name of Florence Albarelli was circulated on the designating petition without her knowledge or consent. Respondent Premo acknowledges that he had not spoken with Mrs. Albarelli regarding her potential candidacy for Town Council prior to circulating the designating petition, but contends that he had no reason to believe that she was unwilling to run for Town Council and serve if elected. This alleged good-faith belief, he contends, was based on: her prior candidacies for office; the fact that she was active politically; their personal friendship; her support for his candidacy for Highway Superintendent; and the belief that she would make an excellent candidate. Further, respondent contends that he did attempt to speak with Mrs. Albarelli on several occasions to obtain her consent, but was unable to do so due to her absence while on vacation.

The Court declines to credit respondent Premo's testimony that he was unable to obtain Mrs. Albarelli's consent to be named on the designating petition due to her vacation. The undisputed testimony at trial was that Mrs. Albarelli was away on vacation only for the weekend of July 14, 2007. The Court takes judicial notice of the fact that the petition process for the 2007 primary election commenced on June 12, 2007 (Election Law § 6-134 [4]), and ended on July 19, 2007 (Election Law § 6-158 [1]). The Court further observes that at least 12 of the signatures collected by respondent Premo are dated July 9, 2007 prior to Mrs. Albarelli's brief absence from the State. In addition, it is undisputed that Charles Smith, an organizer of the petitioning effort, and respondent Premo both had Mrs. Albarelli's cell phone number, but chose not to call. While respondent Premo contends that he wanted to speak with Mrs. Albarelli in person, he clearly could have called her on her cell phone in order to arrange such a meeting.

Under these circumstances, the Court is convinced that Mrs. Albarelli's brief absence due to vacation is not a credible basis for the failure of respondent Premo and the other organizers of the petitioning effort to obtain her consent to be named as a candidate. The Court further finds that respondent Premo, Charles Smith and the other organizers failed to make a good-faith effort to contact Mrs. Albarelli prior to carrying a petition in her name. Further, the contrived nature of respondent Premo's justification for failing to contact Mrs. Albarelli gives rise to a strong inference of scienter: that he knew Mrs. Albarelli would be unwilling to run as part of a slate of candidates challenging the candidates endorsed by the local party committee, and that he and the other organizers of this effort simply were using her name as a "sham" candidate.

Further, while there is no reason to doubt respondent Premo's testimony that Mrs. Albarelli was both a friend and political supporter, this testimony only makes respondent Premo's failure to obtain her consent even more peculiar. Logic and experience suggest that one would speak to a friend and political supporter before circulating her name as a candidate for public office, particularly where such a candidacy would be part of an effort to challenge the candidates supported by the local party committee in what clearly is a highly charged political environment.

Similarly, respondent Premo's testimony that Mrs. Albarelli was politically active, had run for office before and would make an excellent candidate for Town Council does not explain the lack of any good-faith effort to contact her before circulating a petition naming her as a candidate. Indeed, this testimony suggests a rationale as to why Mrs. Albarelli was used as a sham candidate. Despite her long-time involvement in local politics, Mrs. Albarelli testified that [*6]she did not know respondents Ashworth, Liberty and Stout-Smith prior to the petitioning process. Thus, by including Mrs. Albarelli on the petition, those who organized the petition drive added to the slate a well-respected, experienced candidate who currently holds Town office.^[FN2]

The Court also notes that the undisputed testimony demonstrates that it is unprecedented or, at the very least, highly unusual to carry a petition naming a Town of North Greenbush candidate without having obtained consent from such candidate. While this point will be discussed infra, in connection with the issue of deception, this significant departure from ordinary custom and practice further supports the inference that respondent Premo and other organizers knew that Mrs. Albarelli would be unwilling to run as a candidate for Town Council on their slate and declined to seek her consent precisely for that reason.

Finally, the Court notes that it heard testimony from Charles Smith, an enrolled member of the Democratic Party, who acknowledges having been an organizer of the Conservative Party petitioning drive at issue here.^[FN3] In his capacity as an unofficial coordinator of the petitioning effort, Mr. Smith participated in: selecting candidates to be listed on the designating petitions; preparing the designating petitions; distributing petition sheets to others involved in the petitioning effort for circulation to party members; and filing the petitions and other necessary paperwork with the BOE. Mr. Smith also personally collected signatures for the slate of candidates named on the petition.

In his testimony, Mr. Smith acknowledged that he did not personally obtain Mrs. Alberelli's consent, but rather relied on respondent Premo's efforts to contact her and obtain her authorization. He further attested to the numerous, good-faith efforts made to contact Mrs. Albarelli. In view of the lack of credibility of respondent Premo's testimony, the Court finds that Mr. Smith's testimony does not help respondent's cause.

Based on the foregoing,^[FN4] the Court determines that petitioner has demonstrated, by clear [*7]and convincing evidence, that respondent Premo and others knowingly and intentionally listed Mrs. Albarelli as a candidate on the designating petition without her consent for the purpose of fraudulently inducing individuals to sign the petition and then later substituting a candidate whose name did not appear on the petition, in circumvention of the designating process prescribed in the Election Law. The Court further finds that this fraud permeates the entire designating petition (see Hunt v. Payton, 218 AD2d 774 [2d Dept 1995] [lack of consent by two candidates out of slate of 130 sufficient basis to find petition permeated by fraud]).

2.Deception

Petitioner must also demonstrate that party members were deceived. Unlike the practice of substituting minor party candidates in the general election, which has been upheld by the courts based on the long-standing and prevalent nature of the practice (see Mahoney, 40 NY2d at 906; Ferguson, 90 AD2d at 586), there is no analogous practice at issue here. Indeed, the undisputed testimony of petitioner was that she had been a member of the Town's Conservative Party for 31 years and never heard of a candidate being named on a designating petition without having given consent.^[FN5] In the absence of any such custom or practice or other similar circumstances, the Court concludes that Conservative Party members presented with the designating petition at issue here can and would have relied upon Mrs. Albarelli's candidacy in determining whether or not to sign the petition and that such party members were misled by her use as a "sham" candidate (see Richardson, 64 AD2d at 943; see Buchanan, 88 NY2d at 974 n).^[FN6]

In an effort to demonstrate that party members did not, in fact, rely upon Mrs. Albarelli's candidacy, respondent Premo has submitted 36 affidavits from persons claiming to have signed petitions designating Mark Premo as the Conservative Party candidate for Highway Superintendent in the Town of North Greenbush. Each affidavit identically avers that: the [*8]presence of the name of Florence Albarelli did not have any effect on the decision whether or not to sign the designating petition; the presence of her name on the petition was not false or misleading; the petition was signed to place Mark Premo on the ballot; and the presence of Mrs. Albarelli's name on the petition did not suggest that she and respondent Premo were going to run together. In this connection, respondent Premo also submits the affidavit of Edward McDonough, a Commissioner of the respondent BOE, who avers that 29 valid signatures of enrolled Conservative Party members were required on a designating petition in the Town of North Greenbush to nominate a candidate for public office in 2007. On this basis, respondent argues that since a legally sufficient number of signatures untainted by fraud were collected and submitted to the BOE, the designating petition should not be stricken.

The flaw in this argument, however, stems from the involvement of candidates Premo (and, to a lesser extent, Ashworth) in the petitioning process. Respondent Premo testified that not only did his name appear on the petition, but he also: consented to serve on the Committee to Fill Vacancies, carried the designating petition and obtained signatures from party members; and met with others, including Charles Smith and Dan Ashley, with respect to organizing the petitioning effort. Respondent Ashworth also participated in gathering signatures for the designating petition.It is well established that designating petitions will be invalidated on the basis of any showing of fraud where there is candidate involvement (see e.g. Matter of Perez v. Galarza, 21 AD3d 508, 508-09 [2d Dept 2005]). Thus, in McHugh v. Comella (307 AD2d 1069, 1069-70 [3d Dept 2003]), the Third Department explained:

As a general rule, a candidate's designating petition will be invalidated on the ground that some signatures have been obtained by fraud only if there is a showing that the entire designating petition is permeated with that fraud. Where the candidate has participated in the fraud or is chargeable with knowledge of it, the petition will be invalidated even if there is a sufficient number of signatures excluding those procured by fraud. We observe, however, that the petition process should be construed liberally to avoid penalizing either the valid signatories or the candidate where it is specifically found that there was no knowledge of the infirmities (and hence also no participation) on the part of the candidate. (internal citations and quotation omitted).

Thus, even crediting the 36 boilerplate affidavits produced by respondent Premo, the Court concludes that, due to his involvement (as well as that of respondent Ashworth), the petition cannot be saved by demonstrating a legally sufficient number of signatures untainted by fraud.

Conclusion

Based on the foregoing, the Court determines that petitioner has demonstrated, by clear and convincing evidence, that respondents Florence Albarelli was named on the designating petition in the absence of her consent and/or a good-faith belief that she was willing to run with the intention of later substituting another candidate. Petitioner has also established that such actions misled Conservative Party members presented with the petition. Further, the Court finds that due to candidate involvement, the petition cannot be saved by demonstrating a legally sufficient number of signatures untainted by fraud. Under these circumstances, the petition must be granted.

Accordingly, it is

ORDERED that the petition filed with the respondent Rensselaer County Board of [*9]Elections designating the respondent-candidates as candidates for the September 18, 2007 Conservative Party primary election is hereby declared null and void; and it is further

ORDERED that respondent Rensselaer County Board of Elections is hereby restrained from printing and placing the names of the respondent-candidates on the ballot at such election.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to counsel for petitioner. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

August 14, 2007

Richard M. Platkin

A.J.S.C.