State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: August 20, 2015 521453 

_________________________________

In the Matter of MELISSA

VINCENT,

Appellant,

v

MEMORANDUM AND ORDER

LOUISE K. SIRA,

Respondent,

et al.,

Respondents.

(And Another Related Proceeding.)

_________________________________

Calendar Date: August 20, 2015

Before: Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

__________

Law Offices of James E. Walsh, Ballston Spa (James E. Walsh

of counsel), for appellant.

James E. Long, Albany, for Louise K. Sira, respondent.

__________

Per Curiam.

Appeal from an order of the Supreme Court (Muller, J.),

entered August 4, 2015 in Fulton County, which, among other

things, partially granted petitioner's application, in a

proceeding pursuant to Election Law § 16-102, to declare invalid

the designating petitions naming respondent Louise K. Sira as the

Republican Party and Conservative Party candidate for the public

office of County Judge and Surrogate of Fulton County in the

September 10, 2015 primary election.
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Respondent Louise K. Sira filed designating petitions

seeking the Republican Party and Conservative Party nominations

for the public office of County Judge and Surrogate of Fulton

County in the September 10, 2015 primary election. Petitioner, a

citizen objector, commenced a proceeding pursuant to Election Law

§ 16-102 seeking to declare Sira's designating petitions invalid. 

Following a hearing, at which Sira stipulated that her

Conservative Party designating petition was invalid, Supreme

Court, among other things, invalidated that designating petition,

but dismissed that part of petitioner's application seeking to

invalidate Sira's Republican Party designating petition. 

Petitioner now appeals.

Initially, we agree with petitioner that, by incorporating

the specific objections filed by her with the Fulton County Board

of Elections and her summary of those objections in her pleading,

she properly pleaded her fraud claims with the requisite

specificity in order to provide Sira with adequate notice of the

allegations made against her (see CPLR 3016 [b]; Matter of

Haygood v Hardwick, 110 AD3d 931, 931-932 [2013]; LaMarca v

Quirk, 110 AD3d 808, 809-810 [2013]). Turning to the merits,

petitioner limits her appeal to her challenges to Sira's

Republican Party designating petition on the basis of fraud.1

She first contends that, with respect to those signatures on the

Republican Party designating petition that Sira herself witnessed

as a notary public, because those signatories were not properly

sworn (see Election Law § 6-132 [3]), the entire petition should

be declared invalid on the basis of fraudulent conduct by Sira. 

"A designating petition will be invalidated if the

challenger shows, by clear and convincing evidence, that the

1 Petitioner does not address that part of her proceeding

that sought the invalidation of Sira's Republican Party

designating petition due to allegations that certain signatories

were not members of the Republican Party and that certain of

Sira's subscribing witnesses should not have acted in that role. 

Accordingly, we deem any challenges in that regard to be

abandoned (see Matter of Arcuri v Hojnacki, 32 AD3d 658, 659-660

[2006], lv denied 7 NY3d 707 [2006]).
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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],

lv dismissed 23 NY3d 1045 [2014], lv denied 24 NY3d 901 [2014]

[internal quotation marks and citation omitted]; see Matter of

Kraham v Rabbitt, 11 AD3d 808, 809 [2004]). Here, although Sira

herself attested to 307 signatures on her designating petition as

a notary public, which included an affirmation that the

signatories had sworn that their statements were true, she

admitted at the hearing that she had not administered an oath to

the signatories or obtained a statement as to the truth of the

matter to which they subscribed as required by Election Law

§ 6-132 (3) (see Matter of Bonner v Negron, 87 AD3d 737, 738

[2011]). Sira concedes that those 307 signatures are therefore

invalid. However, we are unconvinced that Sira's actions

amounted to fraud warranting invalidation of the entire

designating petition. Notably, as a registered member of the

Republican Party living in Fulton County, Sira was not required

to attest to the signatures on her petition as a notary public;

rather, Sira could have attested as a witness to the signatures,

requiring only an affirmation that the signatories identified

themselves as the individuals who signed the petition and that

they signed the petition in the presence of the witness (see

Election Law § 6-132 [2]). Significantly, there is no evidence

that Sira did not witness the signatures she attested to or that

the signatures were not authentic. Thus, in our view, it has not

been established by clear and convincing evidence that, under

these circumstances, invalidation of Sira's entire designating

petition is warranted on this basis (see Matter of Bonner v

Negron, 87 AD3d at 739-740; Matter of Nolin v McNally, 87 AD3d

804, 805-806 [2011]). 

Petitioner also contends that Sira acted fraudulently by

altering certain sheets of the designating petition after the

sheets had been signed. Sira testified at the hearing that,

after she had distributed petition sheets to the subscribing

witnesses, she realized that several of the petition sheets

identified the office that she was seeking as "Fulton County
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Court Judge," with no reference to the office of Surrogate.2

According to Sira, she was able to alert many of the witnesses,

who added the words "and Surrogate" to the petition sheets prior

to having them signed. Sira admitted, however, that she added

the words "and Surrogate" to several petition sheets after the

sheets had been signed. She explained that she realized that the

title reference on her petition sheets was not complete after

reading the Board's guidelines and decided to add the language to

the already signed sheets in order to be more accurate. Sira's

conduct in adding the language to the signed petition sheets was

unauthorized and improper by law (see Election Law § 17-122 [8]),

and the signatures on those sheets are clearly thereby rendered

invalid.3 Nonetheless, we agree with Supreme Court that

petitioner failed to establish by clear and convincing evidence

that Sira had acted fraudulently by adding the language to the

petition sheets (see generally Matter of VanSavage v Jones, 120

AD3d at 888; Matter of Ragusa v Roper, 286 AD2d 516, 517 [2001],

lv denied 96 NY2d 718 [2001]). Notably, the addition effected no

material change and, again, there was no evidence undermining the

accuracy and veracity of the underlying voter signatures. 

Lahtinen, J.P., McCarthy, Garry and Lynch, JJ., concur.

2 The offices of County Judge and Surrogate are combined in

Fulton County, and all functions and duties of the Surrogate are

performed by the County Judge (see Judiciary Law § 186). There

was testimony proffered that the title of the office is County

Judge/Surrogate.

3 As the signatures obtained significantly exceeded the

number required, this invalidation does not result in

disqualification.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court