Matter of O'Hara v. Bitter

Matter of O'Hara v Bitter 2025 NY Slip Op 31589(U) April 29, 2025 Supreme Court, Saratoga County Docket Number: Index No. EF20251385 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.

FILED: SARATOGA COUNTY CLERK 04/30/2025 09:15 AM INDEX NO. EF20251385 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/29/2025

SUPREM E COURT OF THE STATE OF NEW YORK COUNTY OF SARATOGA In the Matter of the Applicatio n of CHRISTO PHER O'HARA, Objector-Aggrieved, DECISIO NAND ORDER -and- MICHAEL TRAIDER, Candidate -Aggrieve d, -and- STEPHAN IE RANZE, Candidate-Aggrieved, Petitioner s!

-against- RJI # 45~1-2025-0531 Index #EF20251 385 STEFANI E R. BITTER,.

CAITLIN S. FANTIN! , and DAHN S. BULL, -and- SARATOGA COUNTY BOARD OF ELECTIO NS, and THE COMMIS SIONERS THEREO F CONSTITUTING THE BOARD, Responde nts, For an Order Pursuant to Sections 16-100, 16-102(1), (2) and 16-116of the ElectionJ.'..aw, Declaring Invalid the .Designat ing Petitions Purportin g To Designate the Responde nt-Candid ates in the. 2025 Republica n Party Primary Election, and to Restraint he said Board of Elections from Printing and Placing the ·N ame of said Candidat e Upon the OfficialB allots of Said Primary Election.

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Appea rances : Timoth y F. Hill, Esq.

Perillo •· Hill, LLP Attorne ys for Petitio ners W. Main Street, Suite 203 Sayville, NewYo rk 11782 Joel E. Abelove, Esq.

Abelove Law, P.O.

Attorne ys for Respon dent~C andida tes Stefani.e R. Bitter, Caitlin S. Fantin i and Dahn S. Bull '1 702a Centra l Avenue Albany, New York 12205 George P. Conway, Esq: Sarato ga County Attorn ey· Attorn eys for Respon dent Sarato ga County Board of Electio ns McMas ter Street Ballsto n Spa., New York 12020 Walsh, J.

The instant matter is brough t on by Petitio n and.Order to Show Cause under.

Article 16 of the New York State Electio n Law 1 filed on April 16, 2025, and made returna ble.on April 25, 2025. A hearing was conduc ted by the Court on April 25 1 2025 and continu ed on April 28, 2025 and the parties were directe d to file any post-hear1.ng submis sions to the Court by April 29, 2025 at 9:00 a.m'., which both parties have done. 1 Petitio ners asserts that Respon dent-C andida tes engage d in fraudu lent conduc tin collecting signatu res for design ating petitio ns and .must be stricke n from the ballot. In the alterna tive, .Petitio ners challen ge the ·validit y of certain signatu res

1 Consistent with its position during the proceedings, Respondent Saratoga County Board of Elections provided the ing submissio ns: The Court also required evidence, but did not take a position on the relief requested in post-hear notes that Petitioners post-hearing submission was filed via NYSCEF at 9:17 a.m.

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The parties stipulat ed that 470 valid signatur es were, required to secure access to the ballot on the Republi can party line. for the position s of Superin tendent of Highwa ys and Town Clerk for the Town of Clifton Park1, as well as Town Judge (see Election Law §6-136). Respond enl-Can didatcs submitt ed joint petition s for, all three positions, which containe d 634 signatur es. Petition ers challeng e the validity of 253 signatur es which, if entirely successful, would reduce the number of submitt ed ' ' ' signatur es below the required 4 70 signatur es.

Initially , Petition ers assert that the. Respond ent-Can didates each engaged in fraud in, witnessi ng petition s. Respond ent Bitter, who declined the nominat ion for Town Judge, acknowl edged that she witnesse d her own signatur e as well, as a .

signatur e for a husband signing on behalf of his wife, who was also present. Bitter ·testified that she declined the nom1nation for the ballot after her employe r advised her that taking onthe elected position could create a conflict with their law firm. The Court cre.d its 1Is. Bitter's testimon y as being forthrig ht and taking responsi bility for.

the errors in witness ing the various petitions , as she swore in the jurat that she.

persona lly witnesse d each claimed .signatur e, which was not the case. As she has

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Next, Petition ers ·assert that Respond ent-Can didate Fantini committ ed fraud in witnessi ng the signatur es of Regina and Peter Curtis and William and Virginia Riley, as Petition ers challeng ed that one spouse signed in place of the: other. ·Ms ..

Fantini testified that she could not specifically recallth e incidences, but stood by her subscrib ing witness ·s tatemen t, which containe d the following jurat: 1, ___ ___ __, state: I am a duly qualified .vote of the State. of New York and am an enrolled voter of the Republi can Party. I now reside at (residen ce address) _ _ _ _ _ _ _ . Each of the individu als whose names are subscrib ed to this ·petition sheet containi ng, (FII,L!N NUMBER) ·- - signatur es, subscrib ed the same in my presence on the. dates above indicate d and identifie d himself or herself to be. the individu al who signed this sheet. I underst and that this stateme nt will be accepted for all purpose s as the equivale nt of an affidavi t and1 if it contains a materia l false stateme nt, shall subject me to the same penaltie s as if I had been duly sworn. (See. NYS Election Law§ 6-132) Likewise, Petition ers encoura ge the Court .to credit the testlmon y of witness Robert V. Swatling , Jr., who obtained . signatur es on behalf of all three candida tes, and testified that an individu al signed a petition he was carrying outside. of his presence . Mr. Swatlin gtestifie d that he advised Respond ent-Can didate Bull of this occurrence. Bull testified that he did not recall such conversa tion, nor take any action to avoid submitt ing an imprope r signatur e. Petitron ers submit that both Fantini and Bull engaged in,. or had knowled ge of, fraudule nt signatur es being submitte d, and should be disquali fied from the. ballot.

''A candida te's designa ting petition will be invalida ted on the ground of fraud if there. is a showing that the entire. petition is permeat ed \Vith fraud,"' Matter of Page 4 of 8

Felder v. Btorobin, 100 AD3d 111,15 [2 nd Dept. 2012]. "Even when the designa ting petition is not permeat ed with fraud1 the petition generall y wiUbein validate d where the candida te :has particip ated in or is chargea ble with knowled ge of the fraud." Matter of Volino v. Calvi, 87 AD3d 657, 658 [2 nd Dept .. 2011]. Here, both instance s of fraud that Petition ers seek to attribut e. to 1 or at the minimu m knowledge oft to Respond ent-Can didates Fantini and. Bull falls short of the clear. and convincing evidence standard . Neither candida te testified in the affirmat ive to recallin g such instance s and any equivoc ation in their respons es, was not viewed by the Court as being evasive or deceptiv e. Rather, the Court credits each of their testimon ies and does not find that either engaged in, or had knowledge, of fraud in their witnesse d petitions . See, Matter of VanSava ge v. Jones, 120 AD3d 887 1 888 [3 rd Dept. 2014].

Petition ers further assert that numero us signatur es on, the nominat ing ·petition s did not match the "buff cards" which arc maintai ned by the Saratog a County Board of Election s. In many Such circums tances;t he "signato ry" printed their name, rather than signing by using cursive or script. The Court notes that the petition s used by Respond ent-Can didates listed "Name of Signer" in the name column, which resulted in many people printlng their names, which differs from their respectiv e signatur es on record.

NewYo rkState Election Law§ 6-134(5) provides , ''Nothin gin this section shall prevent a court from receivin g testimon y or other admissib le • evidence as to the authenti city of a signatu re when such signatur e would otherwi se be invalida ted for not matchin g the signatur e on file with the board of election s." To cure the purporte d

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Howev er, Petitio ners seek to disqual ify all of the signatu res on all petition s and witness ed by Respon dent-C andida te Bitter, Ms. Bitter witnes sed 10 petition s . collecte d '189 signatu res for herself and Respon dent-C andida tes Fantin i and Bull .Even as the Court has .ruled that neither Fantin i nor .Bull were aware of any fraud to commi tted by their co-can didate, signatu res collecte d by her are ,not permit ted stand, as such would encour age a candid ate to :ignore fraud commi tted to their benefit . .Analog ously, the Second Depart ment addres sed this specific issue in Matter of Sgamm ato v. Perillo, 131 AD3d 648 [2 nd Dept 2015], reversi ng the trial court's determ ination , not to invalid ate petitio ns for unawa re co-cand idates, while only e disqual ifying the candid ate to whom fraud was attribu ted. "[S]ince the Suprem Court determ ined that Shapiro 's witnes s statem ents on the contest ed sheets were

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Accordingly, the relief sought in Petition ers' :petition to invalida te the designat ing petition s of Respond ent-Can didates Fantini and.Bul l is granted and the Saratog a County Board of Election s shall be restrain ed from printing and placing the .names Caitlin S. Fantini on the Republi can Party line on any official ballots of the primary and/or general election for_the position of Town Clerk for the: Town of Clifton Park. Further , the Saratog a County Board of Election s shall be_restrain ed from printing and placing the names Dahn S. Bull on the Republi can Party line on any .official ballots of the primary and/or general election for the position of Superin tendent of Highwa ys for the Town of Clifton Park. This shall constitu te the Decision . and Order of the Court. No costs arc awarded to any party .. The Court is hereby uploadin g the original Decision and Order into the NYSCE F systcmJ or filing and entry by the County Clerk. Petition er's counsel is still respons ible for serving notice of entry of this Decision and Order in accordan ce with the Local Protocols for Electron ic Filing for Saratog a County;

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

Page, 7 of 8 04/30/2025 of 8 [* 7] FILED: SARATOGA COUNTY CLERK 04/30/2025 09:15 AM INDEX NO. EF20251385 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 04/29/2025

Papers reviewed and considered : Verified Petition, filed on April 16 1 2025, with Attorney Verification , Emergency Affirmation and Exhibit A Answer in a Special Proceeding on behalf of Respondent -Candidate Bull, filed on April 23,, 2025 Answer in a Special Proceeding' on behalf of Respondent -Candidate Fantini, filed bn April 23, 2025 Proof adduced at hearing conducted on April 25, .2025 and April 28, 2025 Post-Hearin g Memorandu m on behalf of Respondent -Candidate McCoy of Joel E.

Abelove, Esq., filed on April 29, 2025 Post~Hearin g l\1emorandu m Affirmation bn behalf of Petitioner-A ggrieved Candidate Brown of Timothy F. Hill, Esq., filed on April 29, 2025

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