Matter of Waugh v Nowicki

[*1] Matter of Waugh v Nowicki 2004 NY Slip Op 50880(U) Decided on August 5, 2004 Supreme Court, Nassau County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 5, 2004
Supreme Court, Nassau County

In the Matter of the Application of JAMES WAUGH, AND KATHY WILSON, CITIZEN OBJECTORS, Petitioners,

against

HENRYK NOWICKI, CANDIDATE, and CAROL BERMAN, NEIL W. KELLEHER, EVELYN J. AQUILA, HELENA MOSES DONOHUE, CONSTITUTING THE COMMISSIONERS OF THE NEW YORK STATE BOARD OF ELECTIONS, Respondents,



10349/04

Angela G. Iannacci, J.

motion by the respondent, Henry K. Nowicki, s/h/a Henryk Nowicki, for an order, inter alia, dismissing the petition pursuant to CPLR 3016[b], is determined as hereinafter provided:

A verified petition to invalidate the Conservative Party Designating Petition of the respondent candidate for office of State Senator from the 5th Senate District was filed by order to show cause on July 29, 2004. Paragraph 6 of the petition alleges in pertinent part that the subject designating petition is defective because it "contains signatures obtained through fraud and misrepresentation," "contains signatures which are forgeries," "contains false and fraudulent [*2]residency calculated to confuse the signers," and "is permeated with fraud."

The respondent moves to dismiss the fraud claims based upon the failure to plead with sufficient specificity as required by CPLR 3016[b]. That section provides that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." CPLR 3016[b] as well as the other pleading requirements of the CPLR apply to matters commenced pursuant to the Election Law (see Matter of Naples v Swiatek, 286 AD2d 567 [4th Dept. 2001]; Matter of Green v Mahr, 231 AD2d 480 [2d Dept. 1996]; see also Matter of Jannaccio v Bd. of Elections of City of New York, 297 AD2d 355 [2d Dept. 2002]; Matter of Magelaner v Jannaccio, 297 AD2d 355 [2d Dept. 2002]).

Here, the claims of fraud are not sufficiently specific so as to provide the respondent with notice of the claims being made. The fraud allegations are in vague and conclusory terms without any specification as to which signatures are fraudulent. In this case, where the entire petition only contains 159 signatures, certainly it would not have been too burdensome for the petitioners to identify which signatures were claimed to be fraudulent.

The petitioner's reliance upon Mazza v Bd. of Elections of the County of Albany (196 AD2d 679 [3d Dept. 1993]) is misplaced. In Mazza, the petition alleging fraud was supplemented by a affidavit which contained specific facts supporting the fraud claims. Here, there is no such affidavit.

Accordingly, that portion of the motion seeking dismissal of the fraud claims is granted and those claims are dismissed.

Furthermore, to the extent that the remaining claims in the petition are not rendered academic, and in light of the fact that the Board of Elections will apparently not be ruling on the petitioner's objections until August 9, 2004, a hearing shall be held on the remaining issues on August 10, 2004, at 9:30 a.m.

The respondent also seeks dismissal of the claim in the verified petition that the Designating Petition is invalid because the subscribing witnesses were not enrolled in the "Republican Party as is required by section 6-132 of the Election Law ". The respondent's claim is that section 6-132 of the Election Law is unconstitutional. That issue cannot be determined because the Attorney General of the State of New York must be notified when the constitutionality of a statute is raised (see Executive Law § 71; CPLR 1012). To the extent that this issue is not rendered academic by the above dismissal, the respondent is directed to notify the Attorney General of the State of New York at least one day prior to the hearing of the remaining claims in the petition.

Finally, if a hearing is necessary, the petitioners may submit subpoenas to be "so ordered" by the court and the subpoenas may be served by any method prescribed by the CPLR and any mailing aspect of the service may be effectuated through express or overnight mail.

This constitutes the decision and order of the court.

Dated: August 5 , 2004 Angela G. Iannacci, A.J.S.C.