The following numbered papers read on the petition by the petitioner, pursuant to Article 16 of the Election Law, to invalidate a petition designating the respondent, David I. Weprin, as a candidate for the public office of Representative in the New York State Assembly from the 24th Assembly District in the upcoming primary election for the Democratic Party, which is to be held on June 28, 2022, and the separate motion by the respondent David I. Weprin, in effect, to dismiss the proceeding pursuant to CPLR 3211(a)(7) and (a)(8). Papers Numbered Petition — Order to Show Cause EF 1-5 Answer EF 10 Notice of Motion — Affidavits — Exhibits EF 11-14 Answering Affidavits — Exhibits EF 16, 18 Reply Affidavits EF 17 Upon the foregoing papers, it is ordered that the petition and motion are consolidated for the purpose of a single order and judgment and are determined as follows: This matter was heard at the call of the calendar of Part 33 on April 25 and 27, 2022. In support of his motion, Weprin contends that the petition fails to state a claim under the Election Law because the petition is a generalized “blunderbuss charge” that lacks the requisite specificity to support either a claim for fraud or an application to invalidate a designating petition. He further asserts that the court does not have personal jurisdiction over him because he was not served with a signed copy of the order to show cause. For the reasons that follow, Weprin’s motion is granted. As an initial matter, Weprin’s argument that the court lacks personal jurisdiction over him is without merit. Generally, an unexecuted order to show cause has no legal effect, and thus, personal jurisdiction over a respondent cannot be obtained where the respondent is not served with an executed order to show cause (see Matter of Fry v. Village of Tarrytown, 89 NY2d 714, 717 [1997]; Way v. Goord, 15 AD3d 741 [3d Dept 2005]). However, because an affidavit from a process server gives rise to the presumption of proper service (see Deutsche Bank Natl. Trust Co. v. O’King, 148 AD3d 776, 776 [2d Dept 2017]), a bare, unsubstantiated denial of service is insufficient to rebut this presumption (see HSBC Bank USA, N.A. v. Archibong, 157 AD3d 662, 662-663 [2d Dept 2018]). Here, affidavits of service were submitted with the petition, showing that the petition and order to show cause were duly served on Weprin, pursuant to CPLR 308(2), on April 21, 2022. Under these circumstances, the assertion by Weprin’s attorney that Weprin was not served with a signed copy of the order to show cause, without more, is insufficient to rebut the presumption of proper service. Moreover, Weprin’s argument challenging the sufficiency of the affidavits of service was improperly raised for the first time in his reply papers. Turning to the merits, the petition nevertheless fails to state a claim under the Election Law. “A candidate whose designating petition is being challenged has the right to be ‘sufficiently or fairly apprised of which signatures were being challenged and the grounds for those challenges’” (Matter of Berney v. Bosworth, 87 AD3d 948, 949 [2d Dept 2011], quoting Matter of Romaine v. Suffolk County Bd. of Elections, 65 AD3d 993, 994-995 [2d Dept 2009]; see Matter of O’Toole v. D’Apice, 112 AD2d 1078 [2d Dept 1985]). Thus, to properly state a cause of action under Election Law §16-102(1), a petition must “allege[ ] facts sufficient to establish the petitioner’s right to the particular relief sought and provide[ ] notice of the transactions and occurrences intended to be proven” (Matter of Pisani v. Kane, 87 AD3d 650, 651 [2d Dept 2011]; see Matter of Murray v. Suffolk County Bd. of Elections, 98 AD3d 624, 624-625 [2d Dept 2012]). Here, the allegations in the petition make generalized references to the signers of the designating petition, the signatures on the designating petition, and the subscribing witnesses. These allegations are insufficient to fairly appraise Weprin of the particular signatures that are being challenged and the grounds for these challenges (see Matter of Murray, 98 AD3d at 625; Matter of Hennessey v. DiCarlo, 21 AD3d 505, 506-507 [2d Dept 2005]). To this end, the petitioner’s reliance on various pages from Weprin’s designating petition, which collectively contain dozens of purported voter signatures, is insufficient, since the petition itself fails to specifically allege the signatures that are being challenged (see Matter of Berney, 87 AD3d 949). As Weprin correctly notes, the court should not be called upon to interpret the meaning and relevance of the petitioner’s exhibits. The petition further alleges that the designating petition “is permeated with fraud so as to vitiate it in its entirety,” and that Weprin was a party to this fraudulent conduct. Indeed, a designating petition will be invalidated on the ground of fraud only where it is shown that the entire petition is permeated with fraud, or alternatively, where the candidate has participated in or is chargeable with knowledge of the fraud (see Matter of Powell v. Tendy, 131 AD3d 645, 646 [2d Dept 2015]; Matter of Steinert v. Daly, 118 AD3d 808, 808-809 [2d Dept 2014]; Matter of Felder v. Storobin, 100 AD3d 11, 15-16 [2d Dept 2012]). However, fraud claims must be pleaded with requisite specificity (see CPLR 3016[b]). Here, the petitioner’s allegations of fraud are premised in large part on the same vague references to the signers of the designating petition, the signatures on the designating petition, and the subscribing witnesses. These allegations fail to plead fraud with requisite specificity (see Matter of Waugh v. Nowicki, 10 AD3d 437, 438 [2d Dept 2004]). In opposition to the motion, the petitioner relies on certain pages from Weprin’s designating petition, and contends that they contain forged voter signatures. Significantly, however, these pages were submitted after the initial return date for the proceeding, in violation, of this court’s Election Part Rules. These submissions are therefore precluded (see Matter of Wooten v. Barron, 242 AD2d 351, 352 [2d Dept 1997]; Matter of Rivera v. Ortiz, 207 AD2d 516, 516 [2d Dept 1994]). In any event, the petitioner’s opposition papers failed to otherwise cure the aforementioned defects in the petition. To the extent that, in hearing the matter, the petitioner identified one questionable signature as belonging to a deceased person,’ “a single instance of fraud by a candidate does not necessarily require the invalidation of an entire otherwise-sufficient designating petition as a matter of law” (Matter of Felder, 100 AD3d at 16). Accordingly, it is ORDERED and ADJUDGED that Weprin’s motion for an order dismissing the proceeding is granted. Accordingly, the petition is denied and the proceeding is dismissed. All other relief not expressly addressed herein is denied. Dated: April 28, 2022
