State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 2, 2016 522994 

________________________________

In the Matter of LINDA FATATA

et al.,

Appellants,

v MEMORANDUM AND ORDER

GEORGE PHILLIPS,

Respondent,

et al.,

Respondent.

________________________________

Calendar Date: June 1, 2016

Before: Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ.

__________

James E. Walsh, Ballston Spa, for appellants.

Hinman, Howard & Kattel LLP, Binghamton (Richard C. Lewis

of counsel), for George Phillips, respondent.

__________

Per Curiam.

Appeal from an order and judgment of the Supreme Court

(Platkin, J.), entered May 16, 2016 in Albany County, which

dismissed petitioners' application, in a proceeding pursuant to

Election Law § 16-102, to declare invalid the designating

petition naming respondent George Phillips as the Republican

Party candidate for the public office of Member of the United

States House of Representatives for the 22nd Congressional

District in the June 28, 2016 primary election.

Respondent George Phillips filed a designating petition

with respondent New York State Board of Elections seeking to be

nominated as the Republican Party candidate for the public office
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of Member of the United States House of Representatives for the

22nd Congressional District in the June 28, 2016 primary

election. Petitioners filed written objections with the Board

challenging, as is relevant here, two signatures of the

designating petition on the basis of candidate fraud

(see Election Law § 6-154 [2]). Shortly thereafter, petitioners

commenced this proceeding pursuant to Election Law § 16-102

seeking to invalidate the designating petition on the same basis. 

Phillips answered, and, in the interim, the Board determined that

the designating petition retained its presumption of validity as

the objections raised allegations of fraud that were beyond the

Board's ministerial purview. Supreme Court thereafter dismissed

the petition, finding that petitioners failed to meet their

burden of establishing that Phillips knowingly engaged in any

fraudulent activity. Petitioners now appeal.

A candidate's designating petition will be invalidated

on the basis of fraud only where the challenging party

establishes, by clear and convincing evidence, "that the entire

petition is permeated with fraud or that the candidate

participated in, or can be charged with knowledge of, fraudulent

activity" (Matter of VanSavage v Jones, 120 AD3d 887, 888 [2014]

[internal quotation marks and citations omitted], lv dismissed 23

NY3d 1045 [2014], lv denied 24 NY3d 901 [2014]; accord Matter of

Mattice v Hammond, 131 AD3d 790, 790 [2015]; Matter of Vincent v

Sira, 131 AD3d 787, 788 [2015], lv denied 25 NY3d 914 [2015]). 

Petitioners allege that Phillips engaged in fraud when he signed

the subscribing witness statements on two pages of the petition

attesting that each voter who signed his or her name did so in

his presence, despite knowing that the statements were false as

to two voters' signatures. Based on these allegations, we agree

with Supreme Court that the finite issue that must be decided is

whether petitioners established by clear and convincing evidence

that Phillips participated in or became knowledgeable of any

fraud in relation to the subscribing witness statements.1

1 Indeed, petitioners do not dispute that Phillips

collected significantly more signatures than was required by the

Election Law. Thus, even if we were to strike the two signatures

at issue, Phillips would still have a sufficient number of
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The uncontroverted testimony established that Phillips

collected the signatures reflected on pages 17 and 38 of the

designating petition. Regarding the signature on line 8 of page

17, Phillips testified that the daughter of that voter signed the

voter's name after the voter informed him that she was physically

unable to sign and that her daughter would sign as her power of

attorney. Concerning line 20 of page 38, Phillips similarly

testified that the voter's wife signed her husband's name after

she told Phillips that her husband was incapacitated and could

not sign, but that she would sign as his power of attorney.2

According to Phillips, he thought that "the people signing under

a power of attorney had the power to act as that person" –

including the power to sign the designating petition – and, in

effect, stepped into the shoes of the person they signed for. 

Thus, it was Phillips' understanding that a signature by a holder

of a power of attorney made in his presence was the legal

equivalent of the incapacitated person's "subscri[ption] to th[e]

petition . . . in [his] presence." Phillips testified that,

based on this belief, he truthfully attested in the witness

statements that each voter signed his or her name in his presence

and identified himself or herself to be the voter who signed.

Based upon Phillips' undisputed testimony, we find no

reason to disturb Supreme Court's determination. Even assuming

that the two signatures at issue are invalid, petitioners failed

to establish by clear and convincing evidence that Phillips

"'acted fraudulently or did anything that would warrant

invalidating the entire designating petition'" (Matter of

VanSavage v Jones, 120 AD3d at 888, quoting Matter of Nolin v

McNally, 87 AD3d 804, 806 [2011]; see Matter of Mertz v Bradshaw,

signatures absent a finding that those two signatures were

procured by fraud and that Phillips participated in the fraud

(see Matter of Mertz v Bradshaw, 131 AD3d 794, 796 n 2 [2015];

Matter of Vincent v Sira, 131 AD3d at 789; Matter of Bonner v

Negron, 87 AD3d 737, 739-740 [2011]).

2 According to Phillips, he believed that the husband was

nearby because the wife "looked to [her husband], she referenced

him and then signed." 
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131 AD3d 794, 796 n 2 [2015]; Matter of Felder v Storobin, 100

AD3d 11, 16 [2012]; Matter of Kraham v Rabbitt, 11 AD3d 808, 809-

810 [2004]; Matter of McHugh v Comella, 307 AD2d 1069, 1070

[2003], lv denied 100 NY2d 509 [2003]). We reject petitioners'

contention that our decisions in Matter of Mattice v Hammond

(supra) and Matter of Valenti v Bugbee (88 AD3d 1056 [2011])

support a contrary conclusion. In both Mattice and Valenti, this

Court invalidated the designating petitions at issue based upon

the candidates' testimony in which they admitted to signing the

witness statements despite knowing that those statements were

materially false (see Matter of Mattice v Hammond, 131 AD3d at

791; Matter of Valenti v Bugbee, 88 AD3d at 1058). In contrast,

there was no similar testimony by Phillips. Accordingly, we find

that Supreme Court properly dismissed the petition.

Peters, P.J., Garry, Rose, Mulvey and Aarons, JJ., concur.

ORDERED that the order and judgment is affirmed, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court