Matter of Kinowski v. McCoy

Matter of Kinowski v McCoy 2025 NY Slip Op 31503(U) April 29, 2025 Supreme Court, Saratoga County Docket Number: Index No. EF20251348 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. EF20251348 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 the Applicatio n of EDWARD D. KINOWS KI, DECISIO N AND ORDER P etitioner- Candidate Aggrieved , -against- RJI # 45-1-2025 -0523 Index #EF20251 348 ROBERT McCOY, Responde nt-Ca ndidate, -and-

SARATOGA COU TY BOARD OF ELECTIO NS, by JOSEPH SUHRAD A and CASSAND RA BAGRAM IAN CONSTIT UTING COMMIS SIONERS ,

Responde nts,

For an Order Pursuant to Sections 16-100, 16-102(1), (2) and 16-116 of the Elections Law, And CPLR Section 3001, Decla ring Invalid the Republica n Party Designati ng Petitions Purportin g To Nominate Robert McCoy as a Candidate for the Public Office of Town of Stillwate r Town Superviso r, In the State of New York, in the Primary Election to be Held June 24, 2025, a nd to Restrain the said Saratoga County Board of Elections from Printing a nd Placing the Name Robert McCoy on the Republica n Party line on Official Ballots of Such Primary and/or General Election.

Appeara nces:

Ada m Fusco, Esq. Fusco Law Office Attorneys for Petitioner -Aggrieve d Candida te Edwa rd D. Kinowski P.O. Box 7114 Albany, New York 12224

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Joel E. Abelove, Esq. Abelove Law, P .C. Attorney s for Respond ent-Can didate Rober t McCoy 1702a Central Avenue Albany, New York 12205

George P. Conway , Esq. Saratog a County Attorne y Attorney s for Respondent Saratog a County Board of Election s 40 McMast er Street Ballston Spa, New York 12020

Walsh, J .

The instant matter is brought on by Petition and Order to Show Cause under

Article 16 of the NYS Election Law, filed on April 14, 2025, and ma de returnab le on

April 24, 2025. A hearing was conducte d by the Court on April 24, 2025 and the

parties were directed to file any post-hea ring submiss ions to the Court by April 28,

2025 at 9:00 a.m. , which both parties have done. Petitioner-Cand idate Aggriev ed 1

Kinowsk i (Petition er) submits that Respond ent-Can didate engaged in fraudule nt

conduct in collectin g signatur es for designa ting petition s and must be stricken from

the ballot. Resp ondent-C a ndidate objects and submits that a sufficien t number of

valid signatur es have been presente d to secure access to the ballot in the primary

election to be conduct ed on June 24, 2025.

The parties stipulated that 145 valid sign atures were required to secure access

to the position of Town Supervisor for the Town of Stillwat er (see Election Law §6-

136) and that Respond ent-Can didate witnesse d each nominat in g petition on the

INDEX NO. EF20251348 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/29/2025

INDEX NO. EF20251348 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/29/2025

"A court will invalidate a designating petition where the challenge r

establishes, by clear and convincing evidence, 'that t he e ntire petition is permeated

with fraud or that the candidate part icipated in, or can be charged wit h knowledge

of, fraudulent activity.' Mattice v. Hammond, 131 AD3d 790 [3 rd Dept. 2015] , citing

Matter of VanSavage v. Jones, 120 AD3d 887, 888 [3 rd Dept. 2014]. F urt he r, "[w)here

a candidat e is involved in the fraud, the challen ger need not show that t he fra ud

permeated t he ent ire petition." Mattice at 790. In Mattice, the Third Departme nt

r uled that the candidate -subscribing witness signed t he witness attestation t hat he

personally witnessed each signature, when he did not, con stituted fraud a nd t h at,

regardless of the inte nt to deceive or defra ud, all of the candidate-witness' petitions

were required to be invalidated. In contrast, the Jones case involved a single inst ance

where a petition was passed around at a pizza shop , while the candidate-witness was

distracted talking to a nother patron. The Third Department in Jones found t h at t he

proof was lacking to show by clear and convincing evidence that the candidate-

witness knowingly accepted fraudulent signature s and did not "warrant invalidating

t he entire designating petition." Jones at 888.

Her e, th e fact pattern presented mirror s Mattice, wher e t he candidate-witness

permitted signatures to be applied to the pet ition outside of his prese nce and t he n

swor e th at he per sonally witnessed all such signatures. "[W]here a candidate's own

knowledge or activities are at issue, candidates are held to a higher standard under

the E lection Law than noncandidates. Absent permeation wit h fraud, a designating

petition may be invalidated where the candidate h as participated in or is ch ar geable

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wit h knowledge of the fraud." Matter of Felder v. Storobin, 100 Ad3d 11 [2 nd Dept.

2012], citing Matter of L avine v. I m broto , 98 AD3d 620 [2 nd Dept. 20 12] By clear and

convincing evide nce, Petitioner has shown t h at Respondent-Candidate engaged in

fraud, albeit, perhaps unintended, which requires that th e designating petitions for

McCoy for the public office of Town Supervisor of the Town of Stillwater as a

candidate for the Republican P arty be invalidated.

Accordingly, t he relief sought in Petitioner-Aggrieved Candidate Kinowski's

petition to invalidate the designating petitions of Respondent-Candidate McCoy is

granted and the Saratoga County Board of Elections shall be r estra ined from printing

and placing the na m e Robert McCoy on the Republican P arty line on a ny official

ballots of t he primary a nd/or general election for t he position of Supervisor for the

Town of Stillwater. This sh all constit ute the Decision a nd Or der of t he Court. No costs

are awarded to any party. The Court is hereby uploading the original Decision a nd

Order into t he NYSCEF system for filin g and entry by t he Coun ty Clerk. Petitioner 's

counsel is still responsible for serving notice of entry of t his Decision and Order in

accordance with the Local Protocols for Electronic Filing for Saratoga County.

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

Papers reviewed and considered:

Verified Petition, filed on April 14, 2025, wit h Attorney Verification and Exhibit A Page 5 of 6

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Attorney Affirmation in support of Verified Petition of Adam M. Fusco, Esq., dated April 14, 2025

Answer in a Special Proceeding on behalf of Respondent-Candidate, filed on April 23, 2025

Attorney Affirmation in s upport of Verified Petition of Adam M. Fusco, Esq., dated April 23, 2025

Affidavit of Judit h Bussing, sworn to April 13, 2025

Affidavit of Nancy Ras ner , sworn to April 14, 2025

Proof adduced at hearing conducted on April 24, 2025

Post-Hearing Mem orandum on behalf of Respondent-Candidate McCoy of Joel E. Abelove, Esq., filed on April 27, 2025

Letter/Correspondence to Judge in furth er support of Respondent-Candidate McCoy of Joel E. Abelove, Esq., filed on April 28, 2025 with Exhibit

Post-Hearing Memorandum Affirmation on behalf of Petitioner-Aggrieved Candidate Kinowski of Adam M. Fusco, Esq., filed on April 28, 2025

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Footnotes

[1] Consistent with its position during the proceedings, Respondent Saratoga County Board of Elections provided the s. required evidence, but did not take a position on th e relief requested in post-hearing submission Page 2 of 6 [* 2] 2 of 6 Republic an line that was submitt ed to constitu te his applicat ion to t he Saratog a County Board of Election s. Each petition containe d a jurat for the subscrib ing witness, which reads as follows: I , _ _ _ _ _ _ _ _, state : I am a duly qualified vote of t he State of New York and a m 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, (FILL IN NUMBE R) __ signatu res, subscrib ed the same in my presence on the dates above indicate d and identifie d himself or h er self to be t he individu al who signed this sheet. I underst and that this stateme nt will be accepted for a ll purpose s as the equivale nt of a n affid avit a nd, if it contains a materia l fa lse stateme nt , shall subject me to the sa me pena lties as if I had bee n duly sworn. (See NYS Election Law Section 6- 132) As a n aggrieve d candida te, Kinowsk i "was not required to file objection s and specifica tions to t he petition prior to commen cing [t he invalida tion] proceedi ng." Matter of Magee u. Camp, 253 AD2d 573 [3rd Dept. 1998]. On each petition , Responden t-Candi date filled in his name, a ddress and number of signatu res con tained on t he petition , and signed his n ame. Petitioner alleges that on at least two of the nominat ing petition s, a wife signed for her husband , outside the presence of the s ubscribi ng witness. Respond ent-Can didate testified a nd acknowledged that on each occasion , t he challenged voters took his clipboar d containi ng the petition s into t he house a nd re -emerge d with t he signatur es purporti n g to be those of their respecti ve spouses. Respondent-Can didate testified that he did not view this approac h to be incorrec t and that no fraud was intended. The Court credits Respondent-Can didate's testimony as fort hrigh t and cr edible, albeit misguid ed and in error. Page 3 of 6 [* 3] 3 of 6