SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS:------------------------------------------------------------------------)(IN THE MATTER OF THE APPLICATION OFSIMCHA FELDER"

Petitioner-Candidate Aggrieved,

- against-

DAVID STOROBIN,Respondent-Candidate,

and the BOARD OF ELECTIONS IN THECITY OF NEW YORK,

RESPONDENT,

SPECIAL ELECTION PARTIndex No. 700013/12Hon. Larry D. MartinAugust 13,2012

FOR AN ORDER, PURSUANT TO ARTICLE 16 OF THE ELECTION LAW TODECLARE THE INVALIDITY OF ADESIGNATING PETITION.------------------------------------------------------------------------)(The following papers numbered 1 to~ used in this proceeding

Order to Show Cause and Petition Annexed 1 .Other Papers (answer);.2. (bill ofparticulars/offer ofproof) .3,4 ..

Name ofCandidateIs Office District

David Storobin .. . Member of Senate.... 17th Senate District.. ..

Upon the foregoing papers in this proceeding brought pursuant to Article 16 of the

Election Law to declare invalid the designating petition purporting to name David Storobin

for the office of State Senator for the 17th Senate District in the Republican Party primary

election to be held on September 13, 2012, petitioner moves for an order granting the petition

and respondent moves to dismiss the petition. After conducting a line-by-line review ofthe

de-novo specification ofobjections filed with the court on July 30,2012, as well as a trial on

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the fraud allegations set forth in petitioner's petition and bill of particulars, the court finds

as follows:

On or about July 12,2012 a designating petition was filed with the Board ofElections

(Board) purporting to designate respondent David Storobin for the public office of State

Senator from the 17th Senate District in the Republican Party primary to be held on

September 13,2012. Thereafter, petitioner's objector (Theodor Ditchek) filed specifications

ofobjections with the Board challenging the validity ofcertain signatures in the designating

petition. On July 24,2012, petitioner (as an aggrieved candidate) commenced an invalidating

proceeding against respondent Storobin under Kings County Index No. 700013/12. 1 Among

other things, the invalidating petition alleged that respondent's designating petition was

permeated with fraud and that respondent committed fraud in witnessing signatures. On July

25, 2012, respondent commenced a corresponding validating proceeding against petitioner's

objector as well as the Board under Kings County Index No. 700017/12. Both petitions were

set down for a July 30,2012 return date before Hon. David 1. Schmidt of this court.

After petitioner's objector filed specification ofobjections with the Board, the Board

issued a preliminary clerk's report ruling upon these objections. The report determined that

ofthe 2,054 signatures contained in respondent's designating petition, 1,262 signatures were

valid, 262 more than the 1,000 needed for placement on the primary ballot for the subject

lpetitioner is the candidate for the Democratic Party nomination for the office of StateSenator from the 17th Senate District. Accordingly, petitioner has standing to commence thisinvalidating proceeding as an aggrieved candidate (Matter ofLiepshutz v Palmateer, 112 AD2d1098, 1099-1100 [1985], affd 65 NY2d 963 [1985]).

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office. However, the Board subsequently detennined that these objections must be rejected

based upon improper service, thereby rendering the clerk's report a nullity.

On the morning of July 30, 2012, the aforementioned invalidating and validating

proceedings were on before Justice Schmidt. At the call ofthe calendar, petitioner filed de-

novo specifications ofobjections with the court.2 In addition, petitioner amplified the fraud

allegations previously set forth in his petition by submitting a bill of particulars. In this

regard, the bill of particulars alleged that signature lines 5-8 on sheet 10 of designating

petition volume KG1202199 were fraudulently signed by the same individual under a "SH"

similar handwriting specification. Based upon this allegation, petitioner alleged that every

petition sheet witnessed by the subscribing witness on sheet 10 - one Thomas Brice - must

be invalidated. In total, Mr. Brice witnessed approximately 214 signatures on 24 petition

sheets in petitions KG1202199, KG1202200, and KG1202196.

The bill of particulars also made fraud allegations directly against

respondent/candidate Storobin. In particular, the bill of particulars alleged that Storobin

witnessed 30 signatures as a subscribing witness on sheet 23 and 47 ofKG1202199, and

sheets 28, 29, 30, and 40 ofKG1202201. According to petitioner, 13 ofthese 30 signatures

(which the bill ofparticulars identified by sheet and line number) were forged.3 Further, the

de-novo specifications of objections submitted on the initial return date alleged that the

2These de-novo objections were comprised of the same objections previously rejected bythe Board, as well as certain new objections.

3A review of the petition reveals that Storobin only witnessed a total of24 signatures.

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signature taken by respondent Storobin on page 23, line 10 ofpetition volume KG1202199

was forged. Finally, the bill of particulars alleged that one of the purported signatories on

a sheet witnessed by respondent Storobin (line 1 of sheet 30 in petition KG1202201) was in

fact, deceased.

At the call of the calendar, respondent orally moved to dismiss the fraud allegations

for failure to plead with the specificity required under CPLR 3016 (b). Thereafter, the matter

was referred to the Court's special referees to conduct a line-by-line review of de-novo

specifications submitted to the court on July 30,20124. After conducting this line-by-line

review, the special referees determined that respondent Storobin had 1,463 valid signatures,

463 more than the 1,000 needed for the subject office. On August 6, 2012, petitioner filed

what purported to be a "Supplemental Amended Petition." This purported amended petition

incorporated the same fraud allegations previously set forth in petitioner's bill ofparticulars.

On August 7, 2012, the matter was administratively transferred from Justice Schmidt

to this court by order of Hon. Sylvia Hinds-Radix, Administrative Judge for Civil Matters,

2nd Judicial District. On the same date, the referees' report was read into the record before

this court and petitioner raised certain exceptions to the report. After hearing oral argument

on these exceptions, the court modified the referee's report to reduce the number of valid

4The de-novo objections contained certain fraud allegations which were not reviewed bythe referees (such claims being beyond the scope oftheir review). Moreover, with the exceptionof the fraud allegation contained on line 10 ofpage 23 ofvolume KG1202199, petitioner failedto introduce any evidence before the court supporting these fraud claims in the de-novospecifications, thereby waiving any challenge to these signatures based upon fraud.

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signatures in respondent's designating petition to 1,457 valid signatures. As modified, the

referee's report was confirmed. On the same date, the court heard oral arguments on

respondent's aforementioned motion to dismiss the petition pursuant to CPLR 3016 (b).

Thereafter, the court denied the motion and commenced a trial on the fraud allegations set

forth in petitioner's petition and bill of particulars.

On or about August 9, 2012, as part ofhis offer ofproof at trial, petitioner submitted

a report by a forensic document examiner, Jeffrey H. Luber. This document listed certain

signatories throughout the petition volumes and alleged that their signatures on the petition

sheets did not match the signatures on their voter identification cards. However, with certain

exceptions discussed below, Mr. Luber's report addressed new signatures for which no

forgery, similarhandwriting, or fraud allegations had previouslybeen asserted in the petition,

bill ofparticulars, or de-novo specifications. Thus, the fraud allegations against individual

signatories which were raised for the first time in Mr. Luber's document are untimely and

in violation of the Rules of the Special Election Part. Consequently, the court will not

consider these fraud allegations as any such objections had been waived as of the July 30,

2012 initial return date.

With respect to those fraud allegations which had been previously raised in a timely

manner in the bill of particulars and de-novo specifications of objections, only seven

allegations are also listed in Mr. Luber's document. Specifically, Mr. Luber alleges that lines

7 and 8 on sheet 10 of volume KG1202199 (which were witnessed by subscribing witness

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Thomas Brice) were forgeries. In addition, Mr. Luber alleges that five of the signatures

taken by respondent Storobin as a subscribing witness were forgeries: specifically lines 6,

7 and 10 of sheet 23 of volume KG1202199, and lines 1 and 2 of sheet 29 of volume KG

1202201.

Turning first to petitioner's fraud allegations against subscribing witness Thomas

Brice and the four "similar handwriting" specifications set forth on sheet 10 ofdesignating

petition volume KG1202199 which was witnessed by Mr. Brice, the court initially notes that

petitioner's handwriting expert only opines that two of these signatures (on lines 7 and 8)

were in fact forgeries. With respect to these signatures, Mr. Luber testified that these

signatures, as well as lines 5 and 6 on this sheet were signed by the same individual and that

the signatures on line 7 and 8 differed from the signatures on the registration cards for these

voters. In contrast, Mr. Brice (who was called by respondent) testified that he observed four

different individuals sign these lines.

In weighing this evidence and judging the credibility ofthe witnesses, Mr. Luber and

Mr. Brice, the court finds that there were similarities between the subject signatures on lines

5-8. Further, the court found Mr. Brice's testimony to be less than credible. Nevertheless,

this is essentially a moot point. Deeming these four signatures to be fraudulent does not

serve as a basis for invalidating every petition sheet witnessed by Mr. Brice. Rather, these

isolated irregularities merely require the invalidation of the eight signatures on sheet 10 of

volume KG1202199 previously found to be valid (Matter ofRobinson v Edwards, 54 AD3d

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682, 683-684 [2008]). Given the fact that respondent has 457 more signatures than needed

for placement on the ballot, the invalidation ofthese eight signatures on the subject sheet is

inconsequential. Similarly, four fraudulent signatures in a petition containing over 2,000

signatures is patently insufficient to demonstrate that the petition is permeated with fraud

(Matter ofFinn v Sherwood, 87 AD3d 1044 [2011]; Ragusa v Roper, 286 AD2d 516 [2001],

Iv denied 96 NY2d 718 [2001]).

With respect to the fraud allegations against respondent Storobin, as a subscribing

witness, as previously noted, petitioner originally alleged that approximately 13 of the

signatures taken by respondent as a subscribing witness were fraudulent. However, Mr.

Luber's document only alleges that five ofthe signatures taken byrespondent were forgeries,

specifically lines 6, 7 and lOon sheet 23 of volume KG1202199 and lines 1 and 2 of sheet

29 of volume KG1202201. Adding these five fraud allegations to the allegation regarding

a deceased signatory on line 1 of sheet 30 in volume KG1202201, petitioner has alleged six

direct instances of fraud against respondent Storobin. Even if proven by clear and

convincing evidence, six instances of fraud involving individual signatories in a petition

containing over 2,000 signatures is insufficient to demonstrate that the entire petition is

permeated with fraud (see Matter ofFinn, 87 AD3d at 1044; Matter ofHarris v Duran, 76

AD3d 658 [2010]). That said, even when the designating petition is not permeated with

fraud, when the candidate has participated in or is chargeable with knowledge of the fraud,

the designating petition will generally be invalidated (see Matter of Volvino v Calvi, 87

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AD3d 657,658 [2011];Perez v Galarza, 21 AD3d 508, 509 [2005]; Fonvil v Michel, 308

AD2d 424 [2003]; Matter ofMcRae v Jennings, 307 AD2d 1012 [2003]; Ragusa v Roper,

286 AD2d 516 [2001]; Heitzner v Neglia, 196 AD2d 616 [1993]); MacDougall v Board of

Elections ofCity ofNew York, 133 AD2d 198 [1987]; see also Tapper v Sampel, 54 AD3d

435,436 [2008]; Drace v Sayegh, 43 AD3d 481 [2007]). Thus, the court must consider the

evidence presented at trial concerning the alleged fraudulent signatures taken by respondent

Storobin as a subscribing witness.

Here, petitioner challenges sheet 30, line 1 ofvolume KG 1202201 ofthe designating

petition which was witnessed by Storobin. The signature purporting to be that of "Hilda

Danger" appears on line 1. The court notes that a partially illegible signature appears on line

1 with the printed name of"Hilda Danger" set forth underneath the signature. In the address

section ofline 1, the address originally inserted (1569 Ocean Avenue) was crossed out and

changed to "1576 Ocean Parkway." Petitioner challenges the signature on the grounds that

the purported signatory, Hilda Danger, was deceased at the time the signature was allegedly

procured by Storobin. Petitioner, therefore, argues that Storobin's attestation that he

witnessed the subject signature was false and constitutes fraud thereby invalidating his entire

designating petition.

During the hearing, Storobin testified that he personallywitnessed all ofthe signatures

to which he attested as a subscribing witness. He explained that he used the names and

addresses of registered Republican voters that appeared on a "so-called" campaign "walk

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list" to collect signatures for his designating petition. He further explained that, with respect

to the approximately 24 signatures he procured, it was his standard practice to go to an

address that appeared oil the list, introduce himself as a candidate, inquire as to whether the

person was a registered Republican voter, and ifso, request that the person sign his petition.

With respect to Sheet 30, line 1 of petition volume KG1202201, Storobin testified that he

personally obtained and witnessed the signature that appears on that line, but that the space

underneath the signature (reserved for the printed name) was not filled out by the signatory.

Storobin admitted that when he later looked at the signature, using the "walk list" as a

reference, he mistakenly believed the signature to be that of "Hilda Danger" and assumed

he wrote down the wrong address. As a result, he printed the name "Hilda Danger"

underneath the signature that appeared on line 1 of sheet 30 and crossed out the original

address and replaced it with Ms. Danger's address. It was revealed during the hearing, and

not disputed, that Hilda Danger was deceased at the time that the signature on Sheet 30, line

1 was procured. Although he admitted to writing the wrong printed name on the petition

sheet, Storobin maintained that he did in fact witness the signature on line 1, which he later

discovered to be that of Michail Issak.

Storobin produced the testimony of Michail Issak, who corroborated Storobin's

testimony that he in fact procured the subject signature, despite his error in setting forth the

incorrect name and address ofthe signatory. Mr. Issak testified that the signature appearing

on sheet 30, line 1 was in fact his signature, and that he recalled Storobin coming to his

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apartment, introducing himself and asking him to sign the petition sheet.

Based upon a review of the evidence, the court finds that the petitioner has failed to

demonstrate by clear and convincing evidence that the procurement of this signature was

fraudulent. The court credits the testimony of both Storobin and Mr. Issak that the latter

signed his name on sheet 30, line 1 of the petition in the presence of Storobin, and that

Storobin mistakenly affixed the wrong printed name and address in his attempt to discern the

identity of the signature that appeared on that line. While Storobin's error regarding this

particular signature was careless, and shows questionable judgment, the court does not find

that such conduct constitutes evidence of any intentional fraud on his part (see Matter of

Berney v Ragusa, 76 AD3d 647 [2010], Iv. denied 15 NY3d 704 [2010]; Matter ofHarris v

Duran, 76 AD3d 658,659 [2010]; Matter ofPerez v Galarza, 21 AD3d 508,509[2005], Iv

denied 5 NY3d 706 [2005]; Matter ofMcHugh v Comella, 307 AD2d 1069, 1070 [2003], Iv

denied 100 NY2d 509 [2003]; see also Matter Bonner v Negron, 87 AD3d 737, 739-740

[2011]). "Any irregularity in this single signature does not render the entire petition

permeated with fraud"(Matter ofPerez, 21 AD3d at 509; Matter ofO'Donnell v Ryan, 19

AD2d 781 [1963], affd. 13 NY2d 885 [1963]).

With respect to the remaining allegations of fraud against respondent, Mr. Luber

testified at trial regarding the five following signatures: Volume KG1202199, sheet no. 23,

lines 6 (Carina Tretykov) 7 (Lydudmila Tretyakov), and 10 (Anatoliy Smolyanskiy) and

Volume KG1202201, sheet No. 29 lines 1 (Edith Garcia) and 2 (Amoldo Garcia). In

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particular, Mr. Luber testified that he had compared the signatures on the petition sheets to

the corresponding signatures contained on the voter registration records maintained by the

Board and determined that, within a reasonable degree of certainty, the signatures on the

petition sheets were not signed by the voters who signed the registration cards. Respondent

called one of these witness - Anatoliy Smolyanskiy - to testify.

The court finds that Mr. Luber's testimony is insufficient to demonstrate by clear and

convincing evidence that these signatures were fraudulently obtainedbyrespondent Storobin.

In this regard, the court finds respondent Storobin's testimony that he personally witnessed

all of the signatures to which he attested as a subscribing witness to be credible. Further,

Anatoliy Smolyanskiy credibly testified that he specifically recalled respondent Storobin

appearing at his residence and asking him to sign the designating petition. When shown the

signature on line 10 ofsheet 23 ofpetition volume KG 1202199, Mr. Smolyanskiy identified

the signature as being his own. Finally, when questioned regarding inconsistences between

the signature on the designating petition and the signature on his voter identification card,

Mr. Smolyanskiy credibly testified that he signed his name in two different manners and

demonstrated this to the court by signing his name on a piece of lined paper several times

(see Respondenfs Exh B).

With respect to the four remaining fraud allegations, neither petitionernor respondent

called the subject signatories to testify. However, it was petitioner's burden to demonstrate

by clear and convincing evidence that these signatures were fraudulent and the court finds

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that standing alone, Mr. Luber's testimony is insufficient to meet this heavy burden. In

particular, although there appeared to be certain differences between the signatures on the

petition sheets and the signatures on the corresponding voter identification cards, there were

substantial time gaps between the signature dates on these documents for all four signatories.

Specifically, the signature ofLyudmila Tretyakov (Volume KG1202199, sheet No. 23, line

7) that appears in the Board's records isl9 years old; Edith Garcia's signature (Volume

KG120201, sheet No. 29, line 1) is 28 years old; Arnaldo Garcia's signature (Volume

KG120201, sheet No. 29, line 2) is 20 years old, and Carina Tretykov's signature (Volume

KG120199; sheet No. 23, line 6) is 12 years old. Moreover, even ifit were established that

these signature lines were executed by someone other than the person identified in the

petition, no evidence has been introduced demonstrating that respondent Storobin was aware

of this so as to charge him with fraud. In this regard, the "court is mindful that those 'who

obtain signatures to designating petitions are not the agents ofall ofthe signers so as to make

those who are honest chargeable with knowledge that some of the signatures are forged or

fraudulent'" (Matter ofBuchanan v Espada, 230 AD2d 676,678 [1996] affd 88 NY2d 973

[1996] quotingMatter ofLefkowitz v Cohen, 262 App.Div. 452, 454 [1941] affd 286 NY 499

[1941]).

The cases upon which the petitioner relies are factually distinguishable from the case

herein. In Matter ofDrace v Sayegh (43 AD3d 481 [2007]), the candidate was a subscribing

witness on approximately 30 sheets ofhis 136 sheet designating petition. With respect to the

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pages subscribed by the candidate, during the hearing on the fraud allegations, one witness

testified that her purported signature on the petition sheet was not genuine, and that her father

had signed for her in the presence of the candidate. Another witness testified that the

candidate was not the person who procured his signature. In the present case, however, as

previously noted, the court found Mr. Luber's testimony regarding the five alleged forgeries

subscribed by Storobin unconvincing and questionable, at best. In fact, the only signatory

who was called to testify, Anatoliy Smolyanskiy, contradicted Mr. Luber's testimony by

stating that his signature was in fact genuine and was procured by Storobin himself.

Moreover, during his closing argument, petitioner's counsel even conceded that Mr.

Smolyanskiy's signature on the petition sheet subscribed by Storobin was his own. Notably,

with respect to the other four alleged forgeries, the petitioner did not call any of the

registered voters whose purported signature appears on the sheets witnessed by Storobin to

testify that he or she did not sign the petition, or that Storobin had not in fact witnessed their

signatures.

Similarlydistinguishable is Matter ofTapper v Sampel (54 AD3d435 [2008]). In that

case, the court found candidate fraud where testimony established that the candidate did not

personally witness and identify all signatures to which she attested as a subscribing witness,

and further that the candidate herself instructed witnesses to fill in information on others'

witness statements after the fact. Furthermore, during the hearing, the candidate conceded

that she intentionally submitted to the Board of Elections sheets ofher designating petition

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that contained witness statements which failed to comply with statutory requirement that the

witness attest to the number of signatures contained on each petition sheet. Such

circumstances are not presented herein.

The remaining cases upon which the petitioner relies are also factually distinguishable

(see Matter ofCirillo v Gardiner, 65 AD3d 638 [2009] [candidate participation found where

the testimony at the hearing revealed that a subscribing witness did not personally witness

and identify all ofthe signatures to which he attested and that the candidate had knowledge

of the fraudulent manner in which the signatures were procured ]; Matter ofLeonard v

Pradhan, 286 AD2d 459 [2001] [candidate fraud participation where nine purported

signatories testified that she or he had not signed the petition sheets to which the candidate

himself attested as a subscribing witness]).

The court finds that the facts of the instant case are more akin to what occurred in

Matter ofMcHugh v Comella, 307 AD2d 1069, 1070 [2003], Iv. denied 100 NY2d 509

[2003]. In McHugh, the respondent-candidate testified that she was informed that she had

neglected to sign as subscribing witness on one of the pages of her petition. The page was

presented to her while she was in a meeting. The respondent-eandidate testified that she

looked at the acknowledgment and signed it but did not look at the page, thinking that it was

one of the pages she had personally circulated. The Supreme Court characterized this as a

"dubious excuse, at best," and granted the petition to invalidate. This was reversed by the

Appellate Division which held "[t]he fraud which is alleged is the collection of forged

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signatures and there is simply no evidence that she personally forged a signature or had

knowledge that anyone else had forged a signature. The McHugh court further held that

"[u]nder the circumstances, we conclude "'that in no way, by action or omission to act, could

the candidate be said to be responsible for the fraud and irregularity'" (quoting Matter of

Buchanan v Espada, 230 AD2d 676,678 [1996], affd 88 NY2d 973,648 quoting Matter of

Proskin v May, 40 NY2d 829,831 [1976] [Cooke, J., dissenting]).

Similarly in Matter ofBonner v Negron, 87 AD3d 737, 739-740 [2011] the Supreme

Court's decision to invalidate signatures taken by a candidate, who was also a notary public

who had failed to administer the requisite oath, was reversed by the Second Department

which held that although respondent may not have acted in strict compliance with Election

Law § 6-132 (3) in collecting six ofthe signatures, "it has not been established that he acted

fraudulently or did anything that would warrant invalidating the entire designating petition"

(citationsD. The Bonner court noted that, similar to the instant case, there had "been no

finding that the subject six signatures were not authentic or that ... [the candidate] failed

personally to witness the subscription of any of the signatures to which he attested."

As a [mal matter, respondent's application for costs and sanctions is denied. Although

petitioner failed to meet his burden in seeking to invalidate respondent's designating petition,

it cannot be said that petitioner's claims were so frivolous and without merit so as to justify

such an award.

Accordingly, upon a review of the credible evidence during the hearing, the court

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finds that the petitioner has failed to meet his burden ofestablishing by clear and convincing

evidence that Storobin participated in or was chargeable with knowledge ofany fraudulent

activity (see Matter ofMeeks v Pruitt, 185 AD2d 961 [1992]; Matter ofCorrente v McNab,

96 AD2d 915 [1983]). It is hereby Ordered that the petition to invalidate respondent's

designating petition is dismissed.

EN T E R FORTHWITH,

J. S. C.

HON, LARRY MARTINJYi~~E~FTHeSUPREMECOURT

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