                           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
                                 -4-                521453

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
