Here's the decision:
Roger D. MeDonough, S.:
Petitioners seek the following relief in this election proceeding: 1) an Order declaring as
insufficient, defective, invalid, fraudulent, null and void, the independent nominating petition
filed with the New York State Board of Elections (“NYSBOE”), purporting to nominate and
authorize the respondent-candidate (“respondent Santabarbara”) as particularized in the annexed
petition as candidate of the Change Albany Now party for the public office of Member of the
New York State Assembly, 1t0h5 Assembly District, at the November 2,2010 General Election;
and 2) an Order enjoining, restraining and prohibiting respondent NYSBOE from placing
respondent Santabarbara’s name on the official ballots to be used at the November 2,2010
General Election for the Public Office of Member of New York State Assembly, 1t0h5 Assembly
District. Respondent Santabarbara opposes the petition and has filed a motion to dismiss as well
as a verified answer. The NYSBOE has answered and requested that judgment be entered
dismissing the complaint in all respects.
The Court held a hearing in this matter and took testimony on September 10, 2010 and
September 13, 2010.
Background
On or about August 18, 2010, an independent nominating petition was filed with
NYSBOE nominating respondent Santabarbara as the candidate of the Change Albany Now party
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for the public office of Member of the New York State Assembly, 1t0h5 Assembly District.
Petitioner Ossenfort filed General and Specific Objections to the nominating petition with
NYSBOE. Petitioner Amedore, Jr., is a candidate for the public office of Member of the New
York Stage Assembly, 1 t0h5 Assembly District.
In the instant petition, petitioners contend that the nominating petition is invalid for a
myriad of reasons. However, as elicited at the Court’s hearing in this matter, the gist of
petitioners’ argument is that respondent Santabarbara and his close associates collected a high
number of patently invalid signatures, and that these acts and omissions constitute fraud.
Further, petitioners argue that said fraud on a candidate’s part requires that his entire nominating
petition be invalidated.
The nominating petition at issue requires 1500 valid signatures and contains 2509
signatures. Ossenfort objected to 951 signatures, thereby leaving 1558 signatures unopposed. At
the Court hearing, NYSBOE indicated that a NYSBOE hearing would not be held because the
number of objections that were offered would not have invalidated the nominating petition. In a
“Determination” issued on September 16, 2010, NYSBOE rejected petitioner Ossenfort’s
objections to respondent’s petition as untimely and insufficient.
Respondent Santabarbara moved to dismiss the instant petition based upon: 1)
petitioners’ purported failure to particularize their allegations of fraud with respect to the
nominating petition; 2) petitioners’ lack of case law authority for invalidation of the entire
petition; and 3) the undisputed fact that there are sufficient valid signatures to sustain the
nominating petition. He has also provided the Court with an affidavit wherein he denies any
fraudulent intent and reaffirms all of the witness statements he executed within the nominating
petition. Petitioners oppose the motion to dismiss, arguing that they identified each and every
signature which they claim permeates the nominating petition with so many irregularities as to
permit an inference of fraudulent intent.
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Hearing 1
Petitioners’ counsel, in his opening statement, conceded that the nominating petition
contains valid signatures exceeding the required number of 1,500. The nominating petition was,
on stipulation, moved into evidence and respondent Santabarbara was called as a witness by
petitioner’s counsel.
Summary of Respondent Santabarbara’s Relevant Testimony
Santabarbara testified that he had circulated petitions for his candidacy on the Change
Albany Now line. He indicated that he solicited signatures in different parts of the l05’
Assembly District, including such public places as a Stewart’s shop, a roller rink and an ice
cream store. Santabarbara testified that he changed the town or city as well as the address
portion of signatures he collected on the nominating petition when he thought the information
was incorrect. He further indicated that he made said changes by striking the information with a
line and initialing the change.
In response to a question about a signature he collected on line two, sheet four, of the
nominating petition, respondent Santabarbara testified that the signer had indicated that his
Residence was 130 W Fulton Street, Gloversville, New York and that his Town or City was
Gloversville. Santabarbara testified that he crossed out Gloversville in both sections, initialed
both cross-outs, and wrote in “Amsterdam” next to the crossed-out and initialed “Gloversville”
under the Town/City section. He indicated that he did so because he was collecting signatures in
Amsterdam that day and believed there was a 130 West Fulton Street in the Town of Amsterdam.
It is worthy of note that Santabarbara testified that at the time he collected the aforementioned
signature, he did not realize that Gloversville was not in the 1 05I Assembly District.
Santabarbara was asked about line thirteen of that same sheet. The signer had indicated
that his/her address was 2004 Brandywine. The Town/City is illegible to the Court, but appears
to be “Guilderland.” Santabarbara indicated that he could not make the Town/City out, so he
At the hearing, respondent Santabarbara and petitioners stipulated that the I 05°’
Assembly District is comprised of the County of Montgomery, and part of the County of
Schenectady, including the towns of Duanesburg, Princetown, Rotterdam and part of the City of
Schenectady.
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crossed out the Town/City information written by the signer and wrote in “Schenectady.” While
he did not initial this change, he further indicated that he made the change because he was
collecting signatures in Schenectady and believed that Brandywine Avenue was a Schenectady
address. Santabarbara further testified about a signature he collected on line twelve, sheet
eight, of the nominating petition. Therein, the signer indicated that his/her Town or City was
Troy. No changes or alterations were made to the address information accompanying this
signature. Santabarbara testified that he knew that Troy is in Rensselaer County and is not part
of the I 05” Assembly District. He testified that he submitted the petition knowing that this
particular signature was invalid. After questions by petitioners concerning a number of
additional signatures of individuals who lived outside the 105” District, the parties stipulated that
90 of the 567 signatures collected by Santabarbara were, at the time of submission to NYSBOB,
known by him to be individuals who did no reside within the 105”' District.
Santabarbara was also asked about line seven of sheet one hundred and sixty-four. The
signer wrote 183 Wolf Hollow Rd Scotia under the section entitled Residence Address.
Santabarbara filled in “Schenectady” under the Town/City section and placed his initials next to
“Schenectady.” He indicated that he did so because he thought the particular road was in
Schenectady and because he was collecting signatures in Schenectady.
Santabarbara was also asked about line one of sheet one hundred and sixty-five. The
Residence Address is not wholly legible, but appears to include the words “Stanly St”.
Santabarbara crossed out the word that appears to be “Stanly,” and wrote in “State.” 1-Je initialed
this change. He did the same for line two of said sheet which contained a similarly illegible
Residence Address.
In response to questioning from the Court, Santabarbara indicated that he initialed all
changes, alterations or clarifications that he made to the sheets of the nominating petition. He
did not place his initials on the nominating petition in situations where he wrote in the Town/City
when the signer had left the Town/City section blank. Santabarbara further testified on a number
of occasions that he did not believe that he had to strike “out-of-district” signatures, because
Brian Quail, identified as the Chairman of the Schenectady County Democratic Party, had
reviewed most of the signatures and told respondent that he did not need to strike said “out-of-
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district” signatures.
Summary of Jennifer Santabarbara’s Relevant Testimony
Mrs. Santabarbara is married to respondent Santabarbara. She testified that she collected
signatures for the nominating petition at issue. She was asked about a signature at line nine of
sheet one hundred and seventy-one. The Town/City was listed as Loudonville. She testified that
she knew Loudonville was in the County of Albany and was not part of the lO5 Assembly
District. She indicated that she did not cross the signature out because she was told to leave it
unaltered by Brian Quail.
In response to questions regarding sheet numbers seventy-four, she acknowledged that
she had missed two signatures, lines twelve and thirteen, that should have been crossed out
because the signers had not appeared before her. She further testified that she thought she had
crossed the signatures out. In response to questioning from the Court, Mrs. Santabarbara
testified that she believed that an individual named Bertie Dionni had signed for the individuals
(Dionni’s daughter and son-in-law) on lines twelve and thirteen.
Mrs. Santabarbara was then asked about sheet number one hundred and ninety-eight.
Line ten included a signature along with the letters POA. She testified that because the person
indicated that she had authority to sign, Mrs. Santabarbara put the letters POA next to the
signature after the signer identified herself as a daughter signing on behalf of her mother, over
whom she allegedly held power of attorney. Mrs. Santabarbara also testified that Brian Quail had
instructed her that “out of district” signatures could be left in because they would not be counted.
No other witnesses were called in this proceeding.
Petitioners’ counsel summarized their fraud allegations as consisting of: 1) respondent
Santabarbara’s collection of 90 out-of-district signatures out of his 567 collected signatures; 2)
respondent Santabarbara’s addition of information to the nominating petition as well as his
alterations, changes, etc., to information in the nominating petition; and 3) Mrs. Santabarbara’s
admissions regarding three signatures. In terms of changes/alterations, counsel added that on
three occasions [sheet 8 line 13; sheet 12 line 8; and sheet 162 line 15] respondent Santabarbara
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had changed the TownlCity without initialing the change. Respondent Santabarbara’s counsel
argued that there was no indicia of fraud or any intent to defraud or deceive. In sum, counsel
maintained that there had not been a requisite showing of fraud on the part of either Santabarbara
or his wife such as to sustain invalidation of the nominating petition.
Discussion
Generally, a candidate’s petition will only be invalidated on the ground that signatures
were fraudulently obtained if there is a showing that the entire petition is “permeated with fraud”
(see, Matter of Ferraro v McNab, 60 NY2d 601, 603 [1983]). However, when the candidate
participates in the fraud, the petition will typically be invalidated regardless of the number of
valid signatures that were not procured by fraud (see, Mailer of Perez v Galarza, 21 AD3d 508,
509 [2d Dept. 2005]; Matter of MacDouuall v Board of Elections of the City of New York, 133
AD2d 198 [2fld Dept. 1987]).
The inclusion of “out-of-district” signatures will not result in the invalidation of the
nominating petition unless fraud or deception in the acquisition of the signatures is established
(see, Matter of Popkin v Umane, 22 Ad3d 613 [2dDept. 2005]). The Court finds there has been
no showing here that either Santabarbara or his agents participated in any fraud in the collection
or submission of the relevant signatures. Specifically, the Court found no evidence that
respondent Santabarbara knowingly obtained signatures that he knew were invalid (cf Matter of
Flower v D’Apice, 104 AD2d 578 [2 Dept. 1984] affd 63 NY2d 715 [1984])). Rather, he
consistently testified that he did not know the “out-of-district” signatures were invalid until after
the signers had filled in an “out-of-district” Residence Address and/or Town/City. Further, the
Court found no evidence of fraud or deception in the overwhelming majority of respondent
Santabarbara’s corrections/alterations of Residence Addresses and/or Towns/Cities wherein the
record reflects that he actually initialed said changes. The Court lends no credence to petitioners’
allegation of fraud by Santabarbara in malcing changes, corrections or alterations where he
initialed the changes, thereby calling attention to them. Additionally, the Court found
insufficient evidence of fraud and/or deception on the part of respondent Santabarbara in those
instances where he added a Town/City on the nominating petition.
Petitioners’ counsel’s partial reliance on two of the changes that were not initialed is not
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supported by the testimony or the exhibits in evidence. The information at line eight, sheet
twelve does not appear to have been altered and the transcript does not disclose any meaningful
testimony about any alterations made by respondent Santabarbara. Additionally, while the
information at line fifteen, sheet one hundred sixty-two discloses a change in TownlCity from
“Scotia” to “Schenectady,” respondent Santabarbara testified to the effect that he had not made
the change and that it was not his writing. The record does reflect that the Town/City on line
thirteen of sheet 8 was improperly changed by respondent Santabarbara from what appears to be
“Guilderland” to “Schenectady.” However, the Court does not find said change to be sufficient
to warrant the invalidation of the petition as a whole. Respondent Santabarbara testified that he
believed the listed residence address of 2004 Brandywine was located in the City of Schenectady.
Petitioner’s change of an address from “Guilderland” to “Schenectady” is certainly questionable,
particularly in the absence of any effort on his part to ascertain whether any variation of a
Brandywine Road exists in Guilderland. However, the Court is unable to conclude that said
change constituted a fraudulent act sufficient to invalidate the entire petition.
Turning to Mrs. Santabarbara, the Court finds no evidence that Mrs. Santabarbara
knowingly obtained “out-of-district” signatures that she knew were invalid. The Court is also
unable to deduce fraud or deception in Mrs. Santabarbara’s act of writing POA next to the
signature at line ten of sheet one hundred and ninety-eight. Rather than reflecting deception, the
Court found that said act called attention to the signature and was an attempt at clarification of
the manner in which the signature was collected. As such, the Court found no evidence of fraud
or deception in Mrs. Santabarbara’s collection and submission of said signature.
Finally, Mrs. Santabarbara’ s acquisition of signatures at lines twelve and thirteen of sheet
seventy-four does appear to have been wholly inappropriate based on her candid admission that
an individual other than the named signers had executed both signatures. The Court and
petitioners’ counsel questioned Mrs. Santabarbara extensively about this matter. She readily
acknowledged the invalidity of the signatures and testified that she had intended to cross the
signatures out, and thought that she had, in fact, crossed them out prior to her submission of the
signatures. While her choice to not immediately cross out the signatures can certainly be
questioned, the Court found Mrs. Santabarbara to be a candid and credible witness and,
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accordingly, finds insufficient evidence of fraud or deception on her part.
In sum, based on the Court’s review of the testimony, exhibits and submissions, the Court
is unable to conclude that the nominating petition in this matter is permeated with fraud, or that
either Santabarbara participated in any intentionally fraudulent acts.
In light of the Court’s findings, the Court need not reach the remaining arguments of the
parties. Additionally, respondent Santabarbara’s motion to dismiss has been rendered moot.
Accordingly, it is hereby
ORDERED and ADJUDGED, that the petition brought by petitioners is dismissed and
the relief requested therein is in all respects denied.
This shall constitute the Decision/Order/Judgment of the Court. The original
Decision/Order/Judgment is being returned to the counsel for respondent Santabarbara, who is
directed to enter this Decision/Order/Judgment without notice and to serve all parties with a copy
of this Decision/Order/Judgment with notice of entry. The Court will transmit a copy of the
Decision/Order/Judgment and the papers considered to the County Clerk. The signing of the
Decision/Order/Judgment and delivery of a copy of the Decision/Order/Judgment shall not
constitute entry or filing under CPLR Rule 2220.
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SO ORDERED AND ADJUDGED.
ENTER.
Dated: Albany, New York
September2l,2010
Roger D. McDonou
Supreme Court Justice
Papers Considered:
Verified Petition, dated August 26, 2010, with annexed exhibits;
Affirmation of Michael R. Cuevas, Esq., dated August 26, 2010;
Order to Show Cause, executed on August 27, 2010 and made returnable September 10, 2010;
Verified Answer of respondent NYSBOE, dated September 8,2010;
Respondent Santabarbara’s Notice of Motion, dated September 9, 2010;
Affirmation of Rosemarie Perez Jaquith. Esq., dated September 9,2010;
Affidavit of Angelo L. Santabarbara, sworn to September 9, 2010;
Verified Answer of Respondent Santabarbara, dated September 9, 2010;
Transcript of Court Proceedings held on September 10, 2010;
Affirmation of Michael R. Cuevas, Esq., dated September 12, 2010, with annexed exhibits;
Transcript of Court Proceedings held on September 13, 2010;
Exhibits 1-A and 1 -B in Evidence;
NYSBOE Determination, dated September 16, 2010.
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Logged
Really? Tell that to Kileen and Tedisco. Scotia also has a full slate of REPS. 
