                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 20, 2015                    521474
________________________________

In the Matter of JOHN MERTZ,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
JAMES BRADSHAW,
                    Respondent,
                    et al.,
                    Respondents.
________________________________


Calendar Date:    August 20, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ.

                              __________


      Roemer, Wallens, Gold & Mineaux, LLP, Albany (Michael R.
Cuevas of counsel), for appellant.

     M. Joe Landry, Schenectady, for James Bradshaw, respondent.

                              __________


Per Curiam.

      Appeal from an order of the Supreme Court (Versaci, J.),
entered August 5, 2015 in Schenectady County, which dismissed
petitioner's application, in a proceeding pursuant to Election
Law § 16-102, to declare invalid the designating petitions naming
respondent James Bradshaw as the Republican Party, Independence
Party and Green Party candidate for the public office of Town
Justice of the Town of Rotterdam in the September 10, 2015
primary election.

      Respondent James Bradshaw filed designating petitions with
the Schenectady County Board of Elections seeking to be nominated
as the Republican Party, Independence Party and Green Party
candidate for the public office of Town Justice of the Town of
                              -2-                521474

Rotterdam in the September 10, 2015 primary election. Petitioner
commenced this proceeding pursuant to Election Law § 16-102 to
declare invalid, as is relevant to this appeal, those sheets of
the designating petitions signed by Denise Bradshaw as
commissioner of deeds, alleging that she failed to administer an
oath to or obtain a statement of truth from the signers of said
petitions whose signature she witnessed, contrary to her
verification on those sheets. Following a two-day hearing,
Supreme Court dismissed petitioner's application, and this appeal
ensued.

      The Election Law provides a much simpler process for a
local party member to obtain petition support for a potential
candidate than for an individual of either another political
party or from outside the relevant political subdivision. A
local party member may obtain petition signatures and affirm with
a simple statement that the signatories "subscribed the same in
my presence on the dates above indicated and identified himself
or herself to be the individual who signed this sheet" (Election
Law § 6-132 [2]). Where the petition is obtained by an
individual other than a statutorily authorized local party
member, however, the petition may be approved by a notary public
or commissioner of deeds, but it is further required that each
individual signatory be "duly sworn" (Election Law § 6-132 [3]).1

      Here, Denise Bradshaw was gathering signatures on multiple
party lines, and at issue are three lines in which she was not a
duly registered party member. At the hearing, in addition to
testimony from signatories that no oath or affirmation as to the
truth of their statements was elicited prior to signing the
petitions, Denise Bradshaw herself clearly acknowledged in her
testimony that she had neither administered an oath to any
signatory on the challenged petitions, nor had she asked any of


    1
        As Supreme Court found, this renders the petitioning
process more cumbersome in the "real life situation" of carrying
petitions door to door. Notably, however, this provision serves
to "expand[] access to the ballot, while safeguarding the
integrity of the election process" (Matter of LeBron v Clyne, 65
AD3d 801, 803 [2009]).
                                -3-                521474

them to swear or affirm to tell the truth before signing. This
is contrary to her attestation as a commissioner of deeds, which
appears on the face of each sheet of the challenged designating
petitions, as required pursuant to Election Law § 6-132 (3). As
respondent argues, case law has established that not all of the
formalities of an oath need be observed (see Matter of Bonner v
Negron, 87 AD3d 737, 738 [2011]; Matter of Nolin v McNally, 87
AD3d 804, 806 [2011]). Nonetheless, we are constrained to find
that the evidence did not support a finding of substantial
compliance with the statutory requirements. Accordingly, the
signatures collected by Denise Bradshaw are rendered invalid
(see Matter of Caruso v Casciola, 27 NY2d 657, 657 [1970]; Matter
of Hall v Dussault, 109 AD3d 679, 680 [2013]; Matter of Bonner v
Negron, 87 AD3d at 738; Matter of Nolin v McNally, 87 AD3d at
806; Matter of Imre v Johnson, 54 AD3d 427, 428 [2008]).
Consequently, the designating petitions for both the Republican
Party and Independence Party do not contain a sufficient number
of valid signatures and those designating petitions are invalid.2

        Lahtinen, J.P., McCarthy, Garry and Egan Jr., JJ., concur.




    2
         Although certain Green Party signatures are similarly
invalidated, a sufficient number remain to allow James Bradshaw
to appear on that party primary ballot. Further, we fully agree
with Supreme Court that petitioner failed to establish by clear
and convincing evidence that there was any fraudulent procurement
of the signatures so as to warrant invalidating said Green Party
designating petition in its entirety (see Matter of Vincent v
Sira,     AD3d     [decided herewith]; Matter of Nolin v McNally,
87 AD3d 804, 806 [2011]).
                              -4-                  521474

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as dismissed petitioner's
application to declare invalid the designating petitions naming
respondent James Bradshaw as the Republican Party and
Independence Party candidate for the public office of Town
Justice of the Town of Rotterdam in the September 10, 2015
primary election; application granted to said extent and said
designating petitions declared invalid; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
