Matter of Brown v. Mahan

Matter of Brown v Mahan 2025 NY Slip Op 31501(U) April 29, 2025 Supreme Court, Saratoga County Docket Number: Index No. EF20251374 Judge: James E. Walsh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

INDEX NO. EF20251374 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/29/2025

SUPREM E COURT OF THE STATE OF NEW YORK COUNTY OF SARATO GA In the Matter of t he Applicatio n of JEFFREY R. BROWN, DECISIO N AND ORDER Petitioner -Candidat e Aggrieved , -and- CHRIS O'HARA, Petitioner -Objector -against- RJI # 45-1-2025 -0525 Index #EF20251 374 RYAN MAHAN, Responde nt-Candid ate, -a nd- SARATOGA COUNTY BOARD OF ELECTIO NS, Responde nts, For an Order Pursu an t to Sections 16-100, 16-102(1), (2) and 16-116 of the Election Law, And CPLR Section 3001, Declaring Invalid t he Republica n Party Designati ng Petitions Purportin g To Nominate Ryan Mahan as a Candidate for the Public Office of Saratoga County Sheriff, In the State of New York, in t he Primary Election to be Held June 24, 2025, a nd to Restrain t he said Saratoga County Board of Elections from Printing and Placin g t he Name Ryan [Ma han] on t he Republica n Party line on Official Ballots of Such Primary a nd/or General Election.

Appeara nces: John J. Ciampoli, Esq., Of Counsel to Fusco Law Office Attorneys for Petitioner s Capitol Station P.O. Box 7114 Albany, New York 12224 Page 1 of 7

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Joel E. Abelove, Esq.

Abelove Law, P .C.

Attorneys for Responde nt-Ca ndidate Rya n Mahan 1702a Central Avenue Albany, New York 12205 George P . Conway, Esq.

Saratoga County Attorney Attorneys for Responde nt Saratoga County Board of Elections McMaste r Street Ballston Spa, New York 12020

Walsh , J .

The instant m atter is brought on by Petition and Order to Show Cause under Article 16 of t he New York State Election Law, filed on April 15, 2025, a nd made returnable on April 25, 2025. A hearing was conducted by t he Court on April 25, 2025 and the parties wer e directed to file a ny post-hear ing submissio ns to the Court by April 28, 2025 at 1:00 p.m., which both parties have done. Petitioner -Candidat e

Aggrieved Brown (Petitione r) asserts t hat Responde nt-Candidate engaged in fraudulen t conduct in collecting a sign ature for designati n g petitions a nd must be stricken from the ballot. P etitioner-Objector contends th at four other signature s are permeate d wit h fraud , as obtained by other subscribin g witnesses. Responde nt- Candidate argues that th e ca ndidate did not knowingly en gage in a ny fra udulent conduct, nor witness any such fraud, a nd t hat a sufficient number of va lid signature s

INDEX NO. EF20251374 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/29/2025 have been presented to secure access to the ballot in the primary election to be conducted on June 24, 2025.

The parties stipulated that 1,000 valid signatures were r equired to secure access to the ballot on the Republican party line for the position of Saratoga County Sheriff (see Election Law §6-136). Respondent-Candidate submitted 1,440 signatures and Petitioners objected to 355 as invalid. Respondent-Candidate witnessed several nominating petitions that were submitted as part of his application to t he Saratoga County Board of Elections. As an aggrieved candidate, Petitioner Brown "was not required to file objections and specifications to the petition prior to commencin g [the invalidation] proceeding." Matter of Magee v. Camp, 253 AD2d 573 [3 rd Dept. 1998].

Petitioners assert t hat Respondent-Candidate engaged in fraud on one petition where Judith Bussing admitted that she signed her husband's name outside of Respondent-Candidate's prese nce, which he attested to witnessing. Petitioners also asserted that Marybeth Sauter signed her husband's name on a petition carried by John Gaba and stated in her affidavit that she thought she was signing the petition in favor of Petitioner Brown. Yvonne Knights submitted an affidavit that she signed for her husband on a petition carried by Kyle Loucks. Sarah Esson and Franklin Esson submitted affidavits attesting to signing a petition carried by John Gaba, but that they thought that Gaba himself was the candidate, not Responde nt-Candidate Mahan.

"A candidate's designating petition will be invalidated on the ground of fraud if there is a showing that the e ntire petition is permeated with fraud. " Matter of

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Felder v. Storobin, 100 AD3d 11, 15 [2 nd Dept. 20 12]. "Even when the designating petition is not permeated with fraud, t he petition generally will be invalidated where the candidate has participated in or is chargeable with knowledge of the fraud." Matter of Volino v. Calvi, 87 AD3d 657, 658 [2 nd Dept. 2011]. Here, four instances of fraud are alleged concerning the Sauter, Knights and Essons signatures. Each signature was procured by a subscribing witness other th an the candidate and no proof was adduced that Respondent- Candidate participated in or was aware of any alleged impropriety. Further, as such constituted only four of more than 1400 such signatures, it cannot be said that this alleged fraud permeates the entire petition.

See, Matter of Steinert v. Daly , 118 AD3d 808 [2 nd Dept. 2014].

Turning to th e allegation regarding the Bussing signature, the allegation is that Judith Bussing signed her husband Douglas' name, outside the presence of Respondent-Candidate, who then attested to personally witnessing the signature.

The subject petition, just like all petitions at issue h ere, contained a jurat for the subscribing witness, which reads as follows: I, _ _ __ ____, state: I am a duly qualified vote of the State of New York and am an enrolled voter of the Republican Party. I now reside at (residence address) _ __ _ _ _ _. Each of the individuals whose names are subscribed to this petition sheet containing, (FILL IN NUMBER) __ signatures, subscribed the same in my presence on the dates above indicated and identified himself or herself to be the individual who sign ed this sheet. I understand that this statement will be accepted for all purposes as t he equivalent of an affidavit and, if it contains a material false statement, shall subject me to the same penalties as if I had bee n duly sworn. (See NYS Election Law§ 6-132)

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Petitioner submitted proof in affidavit form that Ms. Bussing signed the subject petition on behalf of her husband and did so outside the presence of the subscribing witness, the Respondent-Candidate. Mr. Mahan testified begrudgingly that he permitted Ms. Bussing to take the clipboard with the petition into he r home, where he testified that she disappeared from view and had a conversation with a male figure , who was assumed to be Douglas Bussing, Ms. Bussing's husband. Then, Ms. Bussing returned to the door and handed Respondent-Candidate the petition on the clipboard containing both her and Mr. Bussing's signature.

"A court will invalidate a designating petition where the challenger establishes, by clear and convincing evidence, 'that the entire petit ion is permeated with fraud or that the candidate participated in, or can be charged with knowledge of, fraudulent activity.' Mattice u. Hammond, 131 AD3d 790 [3rd Dept. 2015], citing Matter of VanSauage u. Jones, 120 AD3d 887, 888 [3 rd Dept. 2014]. Further, "[w]her e a candidate is involved in the fraud, the challenger need not show that the fraud permeated the entire petition." Mattice at 790. In Mattice, the Third Department ruled that the candidate-subscribing witness signed the witness attestation that he personally witnessed each signature, when he did not, constituted fraud and that, regardless of the intent to deceive or defraud, all of the candidate-witness' petitions were required to be invalidated. In contrast, the Jones case involved a single instance where a petition was passed around at a pizza shop, while the candidate-wit ness was distracted talking to another patron. The Third Department in Jones found that the proof was lacking to show by clear and convincing evidence that the candidate-

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Here, the fact pattern presented mirrors Mattice, where the proof shows t hat the candidate -witness permitted a single signature to be applied to the petition outside of his presence and then swore that he personally witnessed such signature.

While it seems harsh to invalidate a n entire petition based on more than a thousand signature s due to one fraudulen t one, "where a candidate's own knowledg e or activities are at issue , candidate s arc held to a higher standard under the Election Law than noncandi dates. Absent permeatio n with fraud, a designati ng petition may be invalidate d where the candidate has participat ed in or is ch argeable with nd Dept. 2012], knowledg e of the fraud." Matter of Felder v. Storobin, 100 Ad3d 11 [2 citing Matter of Lavine v. Imbroto, 98 AD3d 620 [2 nd Dept. 2012]. Regardles s of t he intent to defraud , a single instance of fraud by a candidate is sufficient to invalidate rd Dept. a designatin g petition. See, Matter of Burman v. Subedi, 172 AD3d 1882 [3 2019]. Petitione r has shown by clear and convincin g evidence, that Responde nt- Candidate engaged in fraud, which require s that the designati ng petit ions for Mahan for the public office of Saratoga County Sheriff as a candidate for t he Republica n Party must be invalidate d.

According ly, the relief sought m Petitioner -Aggrieve d Candidat e Brown's petition to invalidate the designati ng petitions of Responde nt-Candid ate Mahan is granted and the Saratoga County Board of Elections shall be restrained from printing and placing the name Ryan Mahan on the Republica n Party line on any official ballots

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This sha ll constitute t he Decision and Order of the Court. No costs arc awarded to a ny par ty. The Court is hereby uploading the original Decision a nd Order into the NYSCEF system for filing and e ntry by the County Clerk. Petitioner's counsel is still responsible for serving notice of entry of this Decision a nd Orde r in accordance with the Local Protocols for Electronic Filing for Saratoga County.

Signed at Ballston Spa, New York this 29 t h day of April, 2025

Supreme Court Just ice Papers reviewed and considered: Verified Petition, filed on April 15, 2025, with Attorney Verification, Emerge ncy Affirm ation and Exhibit A Answer in a Special Proceeding on be half of Responde nt-Candidate, filed on April 23, 2025 Proof adduced at hearing conducted on April 25, 2025 Post-Hearing Memorandum on behalf of Re sponde nt-Candidate McCoy of Joel E.

Abelove, Esq., filed on April 27, 2025 Letter/Correspondence to Judge in further support of Responde nt -Candidate McCoy of J oel E. Abelove, E sq., filed on April 28, 2025 wit h Exhibit Post-Hearing Memora ndum Affirmation on beh alf of Petitioner-Aggrieved Candidate Brown of John J . Ciampoli, Esq. , filed on April 28, 2025

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