SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : FOURTH JUDICIAL DEPARTMENT

DECISIONS FILED
MAY 13, 2020

HON. GERALD J. WHALEN, PRESIDING JUSTICE
HON. NANCY E. SMITH
HON. JOHN V. CENTRA
HON. ERIN M. PERADOTTO
HON. EDWARD D. CARNI
HON. STEPHEN K. LINDLEY
HON. PATRICK H. NEMOYER
HON. JOHN M. CURRAN
HON. SHIRLEY TROUTMAN
HON. JOANNE M. WINSLOW
HON. TRACEY A. BANNISTER
HON. BRIAN F. DEJOSEPH, ASSOCIATE JUSTICES

MARK W. BENNETT, CLERK

 SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
DECISIONS FILED MAY 13, 2020
================================================================================
________

560.1

CAE 20 00539

JORDAN D. TOLES V ROBERT QUINTANA

________

560.2

CAE 20 00547

LISA SAUNDERS V EMIN E. EGRIU

________

560.3

CAE 20 00555

JAMES J. MONTO, III V JASON BAY ZEIGLER

 SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department
560.1
CAE 20-00539
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.
IN THE MATTER OF JORDAN D. TOLES AND
JONATHAN D. RIVERA, PETITIONERS-APPELLANTS,
V

MEMORANDUM AND ORDER

ROBERT QUINTANA, ERIE COUNTY BOARD OF ELECTIONS,
JEREMY ZELLNER, AS COMMISSIONER OF THE ERIE
COUNTY BOARD OF ELECTIONS, AND RALPH MOHR, AS
COMMISSIONER OF THE ERIE COUNTY BOARD OF ELECTIONS,
RESPONDENTS-RESPONDENTS.
VANDETTE PENBERTHY LLP, BUFFALO (BRITTANYLEE PENBERTHY OF COUNSEL),
FOR PETITIONERS-APPELLANTS.
JOSEPH A. MATTELIANO, BUFFALO, AND JAMES OSTROWSKI, FOR RESPONDENTRESPONDENT ROBERT QUINTANA.
Appeal from an order of the Supreme Court, Erie County (Emilio L.
Colaiacovo, J.), entered April 27, 2020 in a proceeding pursuant to
Election Law article 16. The order denied the petition to invalidate
the designating petition of respondent Robert Quintana.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioners commenced this proceeding pursuant to
Election Law article 16 seeking to invalidate the designating petition
of respondent Robert Quintana as a Democratic candidate for the office
of New York State Assembly Member for the 149th Assembly District.
Quintana’s designating petition, which contained 928 signatures, was
submitted to respondent Erie County Board of Elections (Board).
However, upon the Board’s consideration of the objections that were
registered by petitioner Jordan D. Toles, 681 of the signatures were
invalidated, leaving 247 valid signatures. The parties agree that the
designating petition must have at least 150 valid signatures for
Quintana to secure a place on the ballot for the June 23, 2020
primary. Following a hearing, Supreme Court invalidated three
additional signatures and otherwise denied the petition. At issue on
this appeal are challenges to 96 signatures on the designating
petition.
Petitioners contend that the court should have struck sheets 10,
13, and 16 from the designating petition because the subscribing
witness, Quintana’s daughter, committed fraud. At the hearing,
petitioners presented testimony that three of the purported signers

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560.1
CAE 20-00539

did not sign the designating petition. Quintana’s daughter was
subpoenaed but did not appear. The court struck the only two
signatures on sheet 10 and one signature on sheet 16 but rejected
petitioners’ request to strike 26 additional signatures on sheets 13
and 16, holding that petitioners failed to establish that those sheets
were the product of fraud.
We conclude that the court erred in refusing to strike the 26
signatures on sheets 13 and 16. Where a subscribing witness falsely
swears to a designating petition sheet and does not testify at the
hearing, the court may declare that all of the designating petition
sheets subscribed by that witness are invalid (see Matter of Bloom v
Power, 21 Misc 2d 885, 890 [Sup Ct, Kings County 1959], affd 9 AD2d
626 [2d Dept 1959], affd 6 NY2d 1001 [1959]; see also Matter of Haas v
Costigan, 14 AD2d 809, 810-811 [2d Dept 1961], affd 10 NY2d 889
[1961]; Matter of Burns [Sullivan], 199 Misc 1005, 1007-1008 [Sup Ct,
Queens County 1951], affd 278 App Div 1023 [2d Dept 1951], affd 303 NY
601 [1951]). Here, inasmuch as Quintana’s daughter failed to testify
at the hearing and petitioners established that three of the
signatures on the designating petition had not been signed by the
purported signer, we conclude that the court should have stricken the
26 signatures on sheets 13 and 16.
Petitioners also seek the invalidation of 45 printed signatures
on the designating petition on the ground that they failed to
correspond to the voter registration forms that petitioners obtained
from the Board and submitted to the court as part of their case in
chief. Given the illegibility of some of the printed signatures on
the designating petition, the exact number of corresponding voter
registration cards that petitioners submitted is unclear, but the
parties agree in their briefs that petitioners submitted only 31 voter
registration cards as part of their case in chief.
It is well settled that “[t]o prevent fraud and allow for a
meaningful comparison of signatures when challenged, a signature on a
designating petition should be made in the same manner as on that
signatory’s registration form” (Matter of Lord v New York State Bd. of
Elections, 98 AD3d 622, 623 [2d Dept 2012]; see Matter of LaMarca v
Quirk, 110 AD3d 808, 810 [2d Dept 2013]; Matter of Henry v Trotto, 54
AD3d 424, 426 [2d Dept 2008]). As the party attacking the validity of
the designating petition, petitioners bore the burden of proof (see
Matter of Salka v Magee, 164 AD3d 1084, 1087 [3d Dept 2018], lv denied
31 NY3d 914 [2018]; Matter of LaMendola v Mahoney, 49 AD2d 798, 798
[4th Dept 1975]). We conclude that, while petitioners established
that 31 of the printed signatures that had a corresponding voter
registration card showing a script signature should be stricken,
petitioners failed to meet their burden with respect to the 14 printed
signatures on the designating petition that lacked a corresponding
voter registration card. Contrary to petitioners’ contention, the
letter from the Board’s attorney stating that there was no voter
information on file for some printed signatures was not in proper
evidentiary form and thus was, without more, insufficient to shift the
burden to Quintana.

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560.1
CAE 20-00539

In view of our determination that petitioners failed to meet
their burden of proof with respect to the invalidity of 14 of the
printed signatures, it is unnecessary to address their remaining
arguments because Quintana would have a sufficient number of valid
signatures to be placed on the ballot even if petitioners were to
prevail on those contentions.

Entered:

May 13, 2020

Mark W. Bennett
Clerk of the Court

 SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department
560.2
CAE 20-00547
PRESENT: SMITH, J.P., PERADOTTO, CARNI, AND BANNISTER, JJ.
IN THE MATTER OF LISA SAUNDERS,
PETITIONER-RESPONDENT,
V

MEMORANDUM AND ORDER

EMIN EDDIE EGRIU, RESPONDENT-APPELLANT,
NEW YORK STATE BOARD OF ELECTIONS, AND PETER S.
KOSINSKI, DOUGLAS KELLNER AND ANDREW SPANO,
COMMISSIONERS OF AND CONSTITUTING THE NEW YORK
STATE BOARD OF ELECTIONS, RESPONDENTS.
JAMES OSTROWSKI, BUFFALO, AND JEFFREY M. BINDER, P.C. & ASSOCIATES,
WHITE PLAINS, FOR RESPONDENT-APPELLANT.
JEROME D. SCHAD, WILLIAMSVILLE, FOR PETITIONER-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Dennis
Ward, J.), entered April 28, 2020 in a proceeding pursuant to Election
Law article 16. The order granted the petition and invalidated the
designating petition of respondent Emin Eddie Egriu.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking to
invalidate the designating petition pursuant to which Emin Eddie Egriu
(respondent) sought to be placed on the June 2020 primary election
ballot for the Democratic Party as a candidate for the office of
Representative in Congress from the 26th Congressional District of New
York.
On the last day for filing a designating petition, respondent
filed three volumes of signature sheets, with separate cover sheets
for each volume. The cover sheet for the first volume was labeled
“Libertarian Party” and stated that it was volume one of three. The
cover sheets for the second and third volumes were labeled “Democratic
Party” and stated that they were volumes two of three and three of
three, respectively. Respondents New York State Board of Elections,
Peter S. Kosinski, Douglas Kellner and Andrew Spano, Commissioners of
and constituting the New York State Board of Elections (Board),
thereafter sent respondent two notices informing him that his
Libertarian Party designating petition and his Democratic Party
designating petition both failed to comply with regulations regarding
the volume numbers listed on the cover sheets (see generally 9 NYCRR

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560.2
CAE 20-00547

6215.2 [a]), and giving him three business days to cure the defects.
The following business day, respondent filed three new cover sheets,
which were titled “amended” cover sheets. The first was labeled
“Libertarian Party” and stated that it was volume one of one. The
second and third were labeled “Democratic Party” and stated that they
were volumes one of two and two of two, respectively. The Board
ultimately determined that the amended cover sheets were sufficient
and the designating petitions were presumptively valid.
In her petition to invalidate respondent’s designating petition,
petitioner alleged that the three volumes constitute an improper
multiparty designating petition. Petitioner further alleged that
respondent failed to file a timely Democratic Party designating
petition because the cover sheet to the first volume identified all
three volumes as a single petition for the Libertarian Party, which is
a fatal defect not subject to cure. Supreme Court invalidated the
designating petition and directed the Board to remove respondent’s
name from the ballot for the Democratic Party primary. Respondent
appeals, and we affirm.
“The three-day cure provision for designating petitions (Election
Law § 6-134 [2]) is available for technical violations of the
regulations” (Matter of May v Daly, 254 AD2d 688, 689 [4th Dept 1998],
lv denied 92 NY2d 806 [1998]). The errors in the originally-filed
cover sheets here, however, were not mere violations “of some
technical requirement having no logical bearing upon the underlying
purpose of preventing fraud” (Matter of Hogan v Goodspeed, 196 AD2d
675, 678 [3d Dept 1993], affd in part and appeal dismissed in part 82
NY2d 710 [1993]). The cover sheets identified one petition only, and
the cover sheet to the first volume labeled it a petition for the
Libertarian Party. To permit respondent to submit amended cover
sheets after the deadline for filing designating petitions in order to
separate volumes two and three of the originally-filed petition into a
new petition for the Democratic Party “would undermine procedural
safeguards against both fraud and confusion” inasmuch as the original
filing would lead interested parties to conclude that no separate
Democratic Party designating petition had been filed (Matter of
Balberg v Board of Elections in the City of N.Y., 109 AD3d 910, 912
[2d Dept 2013]). Thus, contrary to respondent’s contention, because
the errors in the original cover sheets could “serve to frustrate the
filing of general objections pursuant to Election Law § 6-154,” they
were not technical violations subject to cure (Matter of Armwood v
McCloy, 109 AD3d 558, 560 [2d Dept 2013], lv denied 21 NY3d 861
[2013]), and the court therefore properly granted the petition.
Contrary to respondent’s further contention, the regulatory
provisions at issue here do not violate the First Amendment of the
United States Constitution. It is well settled that “when a state
election law ‘imposes only reasonable, nondiscriminatory restrictions’
upon First and Fourteenth Amendment rights, then ‘the State’s
important regulatory interests are generally sufficient to justify the
restrictions’ ” (Lerman v Board of Elections in City of N.Y., 232 F3d
135, 145 [2d Cir 2000], cert denied 533 US 915 [2001], quoting Burdick

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560.2
CAE 20-00547

v Takuski, 504 US 428, 434 [1992]; see Prestia v O’Connor, 178 F3d 86,
88 [2d Cir 1999], cert denied 528 US 1025 [1999]). We conclude that
the reasonable and nondiscriminatory restrictions here impose a
minimal burden on candidates and are rationally related to the State’s
interest in “facilitat[ing] the discovery of fraud and irregularity in
designating petitions” (Matter of Staber v Fidler, 65 NY2d 529, 534
[1985]; see Matter of Carnahan v Ward, 44 AD3d 1249, 1250 [4th Dept
2007]).

Entered:

May 13, 2020

Mark W. Bennett
Clerk of the Court

 SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department
560.3
CAE 20-00555
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND BANNISTER, JJ.
IN THE MATTER OF JAMES J. MONTO, III,
PETITIONER-RESPONDENT-APPELLANT,
V

MEMORANDUM AND ORDER

JASON B. ZEIGLER, RESPONDENT-APPELLANT-RESPONDENT,
AND ONONDAGA COUNTY BOARD OF ELECTIONS,
RESPONDENT.
JOSEPH T. BURNS, WILLIAMSVILLE, FOR RESPONDENT-APPELLANT-RESPONDENT,
AND JASON B. ZEIGLER, RESPONDENT-APPELLANT-RESPONDENT PRO SE.
COTE & VANDYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PETITIONER-RESPONDENT-APPELLANT.
Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Joseph E. Lamendola, J.), entered May 5, 2020 in a
proceeding pursuant to Election Law article 16. The order granted the
petition to invalidate the designating petition of respondent Jason B.
Zeigler.
It is hereby ORDERED that said cross appeal is unanimously
dismissed, the order is reversed on the law without costs, and the
petition is dismissed.
Memorandum: In this proceeding pursuant to Election Law
§ 16-102, Jason B. Zeigler (respondent) appeals and petitioner crossappeals from an order that, inter alia, invalidated a designating
petition to place respondent on the primary election ballot for the
Democratic Party as a candidate for Syracuse City Court Judge.
Preliminarily, we reject respondent’s contention on appeal that the
proceeding was untimely commenced (see generally Matter of Parietti v
Sampson, 117 AD3d 830, 832, 834-835 [2d Dept 2014]).
We agree with respondent, however, that Supreme Court erred in
invalidating his designating petition after concluding that he had
personally participated in fraudulent activity, which must be
established by clear and convincing evidence (see Matter of Burman v
Subedi, 172 AD3d 1882, 1883 [3d Dept 2019], lv denied 33 NY3d 906
[2019]; Matter of Duck v Mannion, 164 AD3d 1103, 1104 [4th Dept 2018],
lv denied 31 NY3d 914 [2018]). That standard requires evidence that
“makes it highly probable that what [a party] claims is what actually
happened” (PJI 1:64), i.e., evidence “ ‘that is neither equivocal nor
open to opposing presumptions’ ” (Matter of Seon v New York State

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560.3
CAE 20-00555

Dept. of Motor Vehs., 159 AD3d 607, 613 [1st Dept 2018]), and it
“forbids relief whenever the evidence is loose, equivocal, or
contradictory” (George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d
211, 220 [1978] [internal quotation marks omitted]). Here, the court
based its determination to invalidate the designating petition on the
testimony of a single signatory, who stated that although respondent
was the subscribing witness on the petition that she signed, her
signature was actually witnessed by a younger man of a different race.
While such evidence may warrant invalidation of a designating petition
(see Matter of Haskell v Gargiulo, 51 NY2d 747, 748 [1980]; Matter of
Mattice v Hammond, 131 AD3d 790, 790-791 [3d Dept 2015]), crossexamination of the signatory—during which she acknowledged signing
four City Court petitions, including one for an individual whose
description was similar to that of respondent—called her testimony on
direct examination into question. Even granting due deference to the
court’s assessment of witness credibility (see generally Matter of
Farrell v Cayuga County Bd. of Elections, 288 AD2d 844, 844 [4th Dept
2001]), we cannot conclude that the signatory’s equivocal and selfcontradictory testimony constituted clear and convincing evidence that
respondent engaged in fraud (see George Backer Mgt. Corp., 46 NY2d at
220).
Petitioner’s cross appeal must be dismissed on the ground that he
is not aggrieved by the order (see Matter of Giordano v Westchester
County Bd. of Elections, 153 AD3d 821, 823 [2d Dept 2017], lv denied
29 NY3d 915 [2017]; see generally National Fuel Gas Distrib. Corp. v
Push Buffalo [People United for Sustainable Hous.], 104 AD3d 1307,
1308 [4th Dept 2013]). Although his contentions can still be
considered as alternative grounds for affirmance on respondent’s
appeal (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60
NY2d 539, 545-546 [1983]; Giordano, 153 AD3d at 823), we conclude that
respondent’s apparent failure to administer to one signatory “an oath
. . . ‘calculated to awaken the conscience and impress the mind of the
person taking it in accordance with his religious or ethical
beliefs’ ” (Matter of Bonner v Negron, 87 AD3d 737, 738 [2d Dept
2011], quoting CPLR 2309 [b]) did not, on its own, constitute evidence
of fraud requiring invalidation of his designating petition (see
Matter of Vincent v Sira, 131 AD3d 787, 788-789 [3d Dept 2015], lv
denied 25 NY3d 914 [2015]; Bonner, 87 AD3d at 739-740; Matter of Nolin
v McNally, 87 AD3d 804, 805-806 [3d Dept 2011]). On the whole, the
hearing testimony established that the subscribing witnesses,
including respondent, substantially complied with the requirements of
Election Law § 6-132 (3) (see Matter of Dwyer v Pellegrino, 164 AD3d
1088, 1089 [3d Dept 2018]; Matter of Finn v Sherwood, 87 AD3d 1044,
1045 [2d Dept 2011]). We therefore reverse the order and dismiss the
petition.

Entered:

May 13, 2020

Mark W. Bennett
Clerk of the Court