Supreme Court, Erie County, August 13, 2021

Jessica A. Kulpit and Brittany Lee Penberthy for petitioner.

Michael C. Cimasi for Jay DiPasquale and others, respondents.

The petition before the court was filed on June 7, 2021, wherein petitioner, pursuant to Election Law articles 6 and 16, sought to invalidate certain signatures found on the "United for Amherst" independent nominating petitions. The independent nominating petition, which sought to create the "United for Amherst" line that would appear on the general election ballot, purported to designate Jay DiPasquale, Ray Herman, Dan Rider and Kathy Weppner (hereinafter respondent candidates) as candidates of the "United for Amherst" party for the public offices of Town Supervisor, Town Councilman and Town Justice, respectively. In particular, the petitioner challenged line-by-line signatures that were "hand-printed," certain petitions that contained "ditto marks," and other handwritten modifications that were "unexplained and uninitialed." (See NY St Cts Elec Filing [NYSCEF] Doc No. 1, petition ¶ 37.) Further, the petitioner alleged that the petitions filed were permeated with fraud.

Prior to the commencement of this action, pursuant to Election Law § 6-154, the petitioner filed general and specific objections with the Erie County Board of Elections (hereinafter Board of Elections) challenging the independent nominating petitions. Of the 1,045 signatures contained in the independent nominating petitions, the petitioner alleged that 835 were invalid signatures. If found to be invalid, this would place the number of valid signatures below the 750 minimum signature requirements. Thereafter, the Board of Elections conducted its administrative review but did not release its results prior to the commencement of this action.

The respondent candidates filed a verified answer to the petition, seeking the dismissal of the petition. On the initial return date of the petition, a hearing was scheduled.

A hearing was held on July 27, 2021. Prior to the hearing, both petitioner and respondent candidates filed motions. Respondent candidates filed a motion to dismiss the petition individually against candidate Kathy Weppner. In their motion, respondent candidates argued for dismissal as to Kathy Weppner as she no longer was a candidate for the public office{**73 Misc 3d at 260} of Town Justice. The petitioner opposed the motion and the court reserved. Petitioner filed a motion to bifurcate the hearing. In her motion, the petitioner sought to defer a hearing on the issues of fraud. Instead, petitioner argued "a determination of the line-by-line objections may very well moot the necessity of any hearing on the issue of fraud, underscoring the judicial economies of bifurcating these line-by-line objections." (See NYSCEF Doc No. 14, affirmation of Jessica Kulpit, Esq. and Brittany Lee Penberthy, Esq. ¶ 51.) The respondent candidates did not object to the motion and the court granted the motion to bifurcate the hearing, considering only the line-by-line objections and not the fraud allegations.

At the hearing, three exhibits were received into evidence. These were:

Petitioner's exhibit 1: Erie County Board of Elections File

Petitioner's exhibit 2: Erie County Board of Elections Signature Cards (hand-printed signatures)

Petitioner's exhibit 3: Erie County Board of Elections Signature Cards (ditto mark entries)

Only Justin Rooney, an office manager at the Erie County Board of Elections, testified at the hearing. Justin Rooney testified about the process the Board of Elections employs in reviewing line-by-line objections. The first grouping of objections were to the "hand-printed" signatures, of which there were 47. Rooney testified Board of Elections employees review the line-by-line objections, compare them with the registration card on file with the Board of Elections (exhibit 2), and make a recommendation as to whether the signature is valid or invalid. Of the 47 objections to hand-printed signatures, the employees recommended that all 47 be struck. According to Rooney, the two Commissioners then review the determination of the employees and make their own ruling. If they agree with the employees' recommendations, the signatures would be struck. According to Rooney, if the Commissioners split in their ruling, the objected signature is restored and presumed valid. Here, the Commissioners agreed with the employees 23 times. As such, 23 of the 47 challenged signatures were struck. Conversely, according to Rooney, the Commissioners issued split rulings on 24 of the challenged hand-printed signatures. As a result, those 24 signatures were restored as valid.

Regarding the "ditto mark" petitions, petitioner alleged that instead of writing their full address on the petition, the voter{**73 Misc 3d at 261} instead used "ditto marks" to correspond with a street address [*2]that was found elsewhere on the petition. Rooney testified that there were three instances where "ditto marks" were found. The Board of Elections employees that reviewed the line-by-line objections recommended that the three signatures be struck. Upon review, the Commissioners issued a split ruling and the three signatures were restored. Rooney offered no other testimony other than his recitation of the line-by-line explanation of each challenged signatures. No other evidence or testimony was received or heard.

Thereafter, oral argument was held on respondent candidates' motion to dismiss. Respondent candidates presented 21 "curative affidavits" that were signed by those who signed the independent nominating petition but hand-printed their signature. In the affidavits, the deponents noted that they did sign the petition on a particular date and why they hand-printed their signature. Respondent candidates presented one "curative affidavit" for "ditto marked" addresses. In her affidavit, Kathleen Hannon noted that the independent nominating petition indicated her correct and lawful address and requested that her signature "not be struck" and requested that the "Court uphold [her] First Amendment right under the Constitution of the United States protecting my [free] speech and expression in this form." (See NYSCEF Doc No. 20, aff of Kathleen B. Hannon ¶ 5; NYSCEF Doc No. 23.) Also, respondent candidates submitted two curative affidavits for changes that were made to the petition where the witness failed to initial the changes. (See NYSCEF Doc No. 20, aff of Mary Jo Carroll ¶ 4, aff of Kathleen Weppner ¶ 4; NYSCEF Doc No. 23.) Petitioner maintains that the affidavits submitted by respondent candidates should not be considered not only because they were untimely, but because they contained inadmissible hearsay. Upon the conclusion of the hearing, the court reserved its decision.

The court is mindful that the legislature intended article 16 of the Election Law to be construed liberally so as to maintain the fairness and integrity of the electoral process. (See Election Law § 16-100 [1]; Matter of Jones v Gallo, 37 AD2d 793 [4th Dept 1971]; Matter of Cullinan v Ahern, 212 AD2d 103 [4th Dept 1995].) Here, petitioner seeks to invalidate signatures and an independent nominating petition based on technical{**73 Misc 3d at 262}violations of the Election Law, namely that hand-printed signatures should not be permitted.

Petitioner makes much of the Fourth Department's decision in Matter of Toles v Quintana (183 AD3d 1290 [4th Dept 2020]). As the author of the underlying Toles decision, this court previously recognized that "[i]t is generally understood that a printed signature should be ruled invalid unless the voter's signature is similarly printed on the voter registration card." (Matter of Toles v Quintana, 2020 NY Slip Op 34547[U], *12 [Sup Ct, Erie County 2020], citing Matter of Hall v Heffernan, 185 Misc 742, 744 [Sup Ct, Richmond County 1945], affd 269 App Div 953 [2d Dept 1945], affd 295 NY 599 [1945]; Matter of Henry v Trotto, 54 AD3d 424 [2d Dept 2008]; Edelstein v Matuszcwski, 2009 NY Slip Op 31841[U] [Sup Ct, Suffolk County 2009].) However, the Appellate Division's subsequent decision modifying the initial decision is not the panacea petitioner argues it is. In Toles, the Fourth Department held that petitioners failed to meet their burden in seeking to invalidate hand-printed signatures. It never invalidated hand-printed signatures. Nevertheless, the broad principle is certainly acknowledged.

Respondent candidates offer multiple affidavits of those who printed, rather than signed, their names on the independent nominating petitions. Those affidavits were [*3]offered to "cure" whatever defects that were objected to by petitioner. More specifically, respondent candidates offered the affidavits for the " 'limited purpose' of verifying signatures in these expedited election proceedings." (See NYSCEF Doc No. 22, affirmation of Michael Cimasi, Esq. ¶ 7.) Petitioner argues that the affidavits should not be considered because they were untimely and cannot be cross-examined. (See NYSCEF Doc No. 23, affirmation of Jessica Kulpit, Esq. and Brittany Lee Penberthy, Esq. ¶ 18.)

It is well settled that trial courts have broad discretion to accept or reject supplemental briefings as part of their inherent authority to regulate motion practice before them. (Pena-Vazquez v Beharry, 82 AD3d 649 [1st Dept 2011].) In fact, every court is vested with powers that permit it to do things necessary for the administration of justice including, but not limited to, accepting late papers or surreply papers, or otherwise regulating proceedings before it. (Liotti v Peace, 36 Misc 3d 1218[A], 2003 NY Slip Op 51762[U] [Sup Ct, Nassau County 2003]; Gabrelian v Gabrelian, 108 AD2d 445 [2d Dept 1985].) This court believes that the additional affirmations submitted{**73 Misc 3d at 263} are reasonably related to and appropriate for a proper determination of the petition. (Proctor v ALCOA, Inc., 2015 NY Slip Op 30023[U] [Sup Ct, NY County 2015].) As such, the court will consider the affirmations and give the appropriate weight to them when rendering its decision.

Citing to Matter of Schultz v Farkas, petitioner suggests that while affidavits can be considered to explain alterations to a petition, they are not to create a sweeping exception. (36 Misc 3d 1231[A], 2012 NY Slip Op 51571[U] [Sup Ct, Albany County 2012], citing Matter of Curley v Zacek, 22 AD3d 954 [3d Dept 2005].) However, there is no sweeping limiting nature of the court's authority to consider them either. Affidavits, such as the ones submitted by respondent candidates, can be relied on to cure signature defects, such as the ones alleged herein. (Matter of Hennessy v Board of Elections of County of Oneida, 175 AD3d 1777 [4th Dept 2019].) In Hennessy, the Fourth Department held,

"Contrary to [the] respondent's further contention, the court properly validated the . . . signatures at line 8 of page 6, line 5 of page 29, line 8 of page 90, and line 11 of page 91, which the Board had invalidated because the signatures were printed rather than in script and did not match the signatures on file with the Board." (Id. at 1179; see generally Matter of Jaffee v Kelly, 32 AD3d 485 [2d Dept 2006]; Matter of Henry v Trotto, 54 AD3d 424 [2d Dept 2008].)

While the court acknowledges that these cases reference actual testimony, the court finds this to be a distinction without a difference. A duly sworn affidavit identifying the basis for the cure and acknowledging that the hand-printed signature was theirs is admissible and acceptable for the court to consider. These affidavits constitute evidence that prove the signatures are valid. As such, the court cannot simply ignore them.

Much has been said and written about recent efforts taken to disenfranchise or disqualify voters. While not wishing to engage in the hyperbole that has gripped this issue, this court cannot lend its name to a proposition that a hand-printed signature, [*4]subsequently verified by a curative affidavit, is invalid and should not be considered. Here, petitioner simply wants to adopt a broad-based, irrebuttable presumption that a hand-printed signature is per se invalid. Doing this would set a dangerous precedent. The susceptibility to exclude voters, simply because they printed their signature, would result in{**73 Misc 3d at 264} unfairly excluding voters from the democratic process. This court cannot sanction a result such as this.

Further, petitioner here has failed to meet her burden of proof when attempting to invalidate signatures. The testimony of the Board's office manager, an employee who was not involved in any part of the actual process other than in a marginally supervisory role, should not be the basis to satisfy the high burden to invalidate a signature that otherwise precludes voters from participating in the electoral process. (See Matter of Salka v Magee, 164 AD3d 1084 [3d Dept 2018]; Matter of LaMendola v Mahoney, 49 AD2d 798 [4th Dept 1975]; Matter of Toles v Quintana, 183 AD3d 1290 [4th Dept 2020].)

As such, the request to invalidate the hand-printed signatures is hereby denied. Since these disputed signatures are found to be otherwise valid, the court need not address the "ditto mark" category of objections as there are not enough challenges to alter the result. Similarly, the court need not address the "uninitialed changes" category for the same reason. However, the court does note that it has been held that where there are alterations on a designating petition that are material in nature and not initialed, the corresponding signatures must be invalidated. (See Matter of White v McNab, 40 NY2d 912 [1976].)

As such, for the reasons herein, the petition is hereby denied, insofar as it relates to the line-by-line objections. Further, the court grants respondent candidates' motion to dismiss the petition in its entirety as it relates to respondent Kathy Weppner. The court hereby schedules a conference for August 19, 2021, at 2:00 p.m. via Microsoft Teams to address the question of fraud, which was previously the subject of bifurcation.