         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

886
CAE 15-01339
PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF DAVID G. BONIELLO,
PETITIONER-APPELLANT,

                     V                                MEMORANDUM AND ORDER

NIAGARA COUNTY BOARD OF ELECTIONS, LORA ALLEN
AND JENNIFER FRONCZAK, AS COMMISSIONERS
OF NIAGARA COUNTY BOARD OF ELECTIONS, AND
MATTHEW MARRA, RESPONDENTS-RESPONDENTS.
(APPEAL NO. 1.)


JAMES OSTROWSKI, BUFFALO, FOR PETITIONER-APPELLANT.

CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT, FOR
RESPONDENTS-RESPONDENTS NIAGARA COUNTY BOARD OF ELECTIONS, AND LORA
ALLEN AND JENNIFER FRONCZAK, AS COMMISSIONERS OF NIAGARA COUNTY BOARD
OF ELECTIONS.

MICHAEL J. SULLIVAN, FREDONIA, FOR RESPONDENT-RESPONDENT MATTHEW
MARRA.


     Appeal from an order of the Supreme Court, Niagara County (Mark
Montour, J.), entered August 14, 2015 in a proceeding pursuant to
Election Law article 16. The order, insofar as appealed from, denied
and dismissed the petition and directed that the name of petitioner
shall not be placed on the Working Families Party primary ballot for
the office of Niagara Falls City Court Judge.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced the proceeding in appeal No. 1
seeking to validate his designating petition for the position of
Niagara Falls City Court Judge on the Working Families Party primary
ballot, and he commenced the proceeding in appeal No. 2 seeking to
validate his designating petition for that same position on the
Republican Party primary ballot. In each proceeding, Supreme Court
denied the petition, and petitioner appeals.

     In appeal No. 1, petitioner contends that the court erred in
determining that the failure of a notary to date the jurat of
authentification on one page of signatures on petitioner’s designating
petition was fatal to the validity of those signatures. The page
contained nine signatures, and the only writing on the date line was
                                 -2-                           886
                                                         CAE 15-01339

the numeral “9.” Contrary to petitioner’s contention, we conclude
that the court “correctly held that [his failure] to date [the]
jurat[] of authentication placed on his designating petition[] was
fatal to the validity of [that] petition[]” (Matter of Sortino v
Chiavaroli, 59 AD2d 644, 644, affd 42 NY2d 982; see Matter of Stevens
v Collins, 120 AD3d 696, 697-698; see also Matter of Quinn v Erie
County Bd. of Elections, 120 AD3d 992, 992-993, lv denied 23 NY3d 908;
cf. Matter of Berney v Bosworth, 87 AD3d 948, 949). The date of
authentication by a notary, like the date of a signed statement by a
subscribing witness, is a matter of statutorily-prescribed content for
which “ ‘strict compliance is required’ ” (Quinn, 120 AD3d at 993; see
Election Law § 6-132 [2], [3]; Matter of Alamo v Black, 51 NY2d 716,
717; Stevens, 120 AD3d at 697).

     Petitioner further contends in each appeal that the manner in
which respondent Niagara County Board of Elections (Board) invalidated
his designating petitions violated the Open Meetings Law and his due
process rights to notice and a hearing. In a proceeding to validate a
designating petition, however, “the burden of proof is on the
candidate to establish that the petition is valid,” and not merely to
establish that the Board committed a procedural error (Matter of
Goldstein v Carlsen, 59 AD2d 642, 643, affd 42 NY2d 993; see Matter of
Schneeberg v New York State Bd. of Elections, 51 NY2d 814, 815). In
view of our rejection of petitioner’s sole basis for contending that
his designating petition was valid in appeal No. 1, as well as his
failure to set forth any basis for contending that his designating
petition was valid in appeal No. 2, we conclude that he “failed to
meet his burden of establishing the validity of his designating
petition[]” in either proceeding irrespective of the alleged
violations of the Open Meetings Law and his due process rights (Matter
of Adamczyk v Mohr, 87 AD3d 833, 835, lv denied 17 NY3d 706; see
Schneeberg, 51 NY2d at 815; Matter of Mansfield v Epstein, 5 NY2d 70,
74). In any event, “[p]etitioner was not entitled to any greater due
process than that provided by the statutory process for judicial
review of [the Board’s] determination pursuant to Election Law
§ 16-102 (1) . . . , and petitioner took advantage of that process”
(Matter of Iocovozzi v Herkimer County Bd. of Elections, 76 AD3d 797,
798; see Matter of Meader v Barasch, 133 AD2d 925, 926-927, lv denied
70 NY2d 611).




Entered: August 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
