DECISION AND JUDGMENT Petitioner and respondent Les Macura have each filed designating petitions with respondent Washington County Board of Elections (hereinafter the Board of Elections) seeking the Republican Party nomination for Town Council in the Town of Kingsbury, Washington County, while respondent William Haessly has filed a designating petition seeking the Republican Party nomination for Town Supervisor. Petitioner, Haessly and Macura are all members of the Town of Kingsbury Republican Committee (hereinafter the Republican Committee), and petitioner and Haessly currently serve on Town Council. Presently before the Court is petitioner’s application seeking to invalidate the designating petitions of Macura and Haessly (see Election Law §6-102).1 Turning first to that aspect of the application seeking to invalidate Macura’s designating petition, this petition lists both petitioner and Macura as candidates for Town Council. Petitioner, however, contends that he never consented to his name being included on the petition and it must therefore be invalidated as fraudulent. “[U]nder certain circumstances, the inclusion of an individual on a designating petition without his or her consent has been found to require invalidation of the entire petition” (Matter of Ruck v. Greene County Bd. of Elections, 65 AD3d 808, 809 [3d Dept 2009]; see Matter of Green v. McNab, 96 AD2d 918, 918-919 [2d Dept 1983], affd 60 NY2d 600 [1983]; Matter of Richardson v. Luizzo, 64 AD2d 942, 943 [2d Dept 1978], affd 45 NY2d 789 [1978]). That being said, this “result is not mandated in every case where the consent of a candidate was not obtained” (Matter of Ruck v. Greene County Bd. of Elections, 65 AD3d at 809; see Matter of Grumbach v. Orange County Bd. of Elections, 43 AD3d 477, 477 [3d Dept 2007]). Petitioner has the burden of demonstrating by clear and convincing evidence that the inclusion of his or her name rendered the designating petition “so permeated with fraud [that it must] be invalidated” (Matter of Grumbach v. Orange County Bd. of Elections, 43 AD3d at 477; see Matter of Bishop v. Leahey, 194 AD3d 1250, 1251-1252 [2021]; Matter of Thomas v. Simon, 57 NY2d 744, 745 [1982]). In this regard, where petitioner establishes that the inclusion of his or her name was intentional and designed to mislead others, then the petition is properly invalidated (see Matter of Ariola v. Maio, 195 AD3d 888, 889-890 [2d Dept 2021]; Matter of Lynch v. Duffy, 172 AD3d 1370, 1373 [2d Dept 2019]; Matter of Richardson v. Luizzo, 64 AD2d at 943). Here, petitioner alleges that only he was endorsed by the Republican Committee to run for Town Council, and that Macura was “rejected.” Petitioner thus circulated and filed his own designating petition, which included only his name. According to petitioner, the designating petition circulated and filed by Macura included petitioner’s name to make it appear that the two were running together — when in fact they were not. Petitioner alleges that he “is running against Les Macura” — which allegation initially led this Court to believe that only one seat on Town Council is open in this year’s election. That being said, Haessly submitted an affidavit in opposition to the requested relief indicating that “[t]here are two (2) Republican nominee slots available for the Town Council race,” which was confirmed by the parties during oral argument. As such, petitioner and Macura will not be running against one another — at least not in a Republican primary. It is unclear whether a third or even fourth candidate will be running for Town Council, as the Democratic Election Inspector for Kingsbury testified on the record during oral argument that the Town’s Democratic Committee has not yet held its caucus.2 In the event more candidates do enter the race, then petitioner and Macura will be running against one another for two seats in the General Election. Under the circumstances, the Court finds that petitioner has demonstrated by clear and convincing evidence that Macura included petitioner’s name on the designating petition — without petitioner’s consent — in an effort to mislead voters into thinking that the two of them were running together and were both endorsed by the Republican Committee. Macura appears to concede that he did not receive the Republican Committee’s endorsement, and he does not dispute that he was aware that petitioner was circulating his own designating petition for Town Council.3 Indeed, this is not a case of “inadvertent error with no intent ‘to mislead or confuse’” (Matter of Ruck v. Greene County Bd. of Elections, 65 AD3d at 810). Rather, the only conceivable reason Macura would have included petitioner’s name on his designating petition was a belief that it would somehow benefit him and make voters more likely to sign it. As the Court observed during oral argument, there is no way to know how Macura’s designating petition was presented to voters, but there is an obvious difference between requesting a signature on “our petition” and requesting a signature on “my petition.” The Court finds Matter of Richardson v. Luizzo (supra) to be instructive. There the Second Department found as follows: “The entire designating petition should have been invalidated. A fraud was committed on the enrolled voters of the party when the names of various candidates were placed on the designating petition without their consent. The petition was misleading in that it suggested that the various candidates listed together intended to run together” (id. at 943; compare Matter of Grumbach v. Orange County Bd. of Elections, 43 AD3d at 477). Here, Macura’s designating petition was misleading because it suggested that he and petitioner intended to run together — which they do not. Also instructive is Matter of Grumbach v. Orange County Bd. of Elections (supra), which is distinguishable. There the Third Department found as follows: “[T]he inclusion of David S. Bell’s name on the designating petition, without his consent, did not amount to a fraud on the signatories because he had already consented to run for the public office of Superintendent of Highways on the endorsed Republican slate of candidates with Neuhaus and Jamieson” (id. at 477). While petitioner has consented to run for Town Council, he has not consented — as evidenced by the filing of this application — to running for Town Council with Macura, who was not endorsed by the Republican Committee. Briefly, to the extent respondents contend that the promoter of a designating petition need not obtain a potential candidate’s consent before placing him or her on the petition because Election Law §6-146 (1) provides a mechanism for declining the designation, the Court finds such contention to be without merit — especially where, as here, petitioner is in fact a candidate for the position but does not wish to be listed alongside another candidate for the position in the same designating petition. It must also be noted that such contention is contrary to the cases discussed hereinabove. Petitioner’s application is therefore granted to the extent that Macura’s designating petition is invalidated as fraudulent. Turning now to Haessly’s designating petition, although petitioner indicates that he is seeking to invalidate this designating petition, there are no allegations directed to it and a copy of the designating petition has not been provided. It must also be noted that there was no discussion with regard to this designating petition during oral argument. It appears that Haessly was only named as a respondent because he assisted in circulating Macura’s designating petition. The Court therefore denies petitioner’s application insofar as Haessly’s designating petition is concerned. Based upon the foregoing, the application is granted to the extent that Macura’s designating petition is invalidated as fraudulent, and the application is otherwise denied. Therefore, having considered NYSCEF document Nos. 1 through 5, 11, and 16 through 22, and having heard oral argument on May 1, 2023 with Michael A. Brandi, Esq. appearing on behalf of petitioner, Roger A. Wickes, Esq. appearing on behalf of respondent Washington County Board of Elections, and Benjamin F. Neidl, Esq. appearing on behalf of respondents William Haessly and Les Macura, it is hereby ORDERED AND ADJUDGED that the application is granted to the extent that Macura’s designating petition is invalidated as fraudulent and the application is otherwise denied. The original of this Decision and Judgment has been e-filed by the Court. Counsel for the petitioner is hereby directed to serve the e-filed Decision and Judgment with notice of entry upon respondents in accordance with CPLR 5513. Dated: May 1, 2023
