                          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
                              -2-                522994

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
                              -3-                522994

      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."
                              -4-                  522994

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
