STATE OF NEW YORK To Be Argued By

SUPREME COURT, APPELLATE DIVISION Lynelle K. Bosworth, Esq.

THIRD DEPARTMENT Time Requested: 15 min.
_______________________________________________________________________

BRIAN S. McGRATH, Candidate,

Respondent-Appellant,

-against-

ADAM L. ODETT and MARY DASNO¸ and Citizen Objectors, and

KENNETH BLANKENBUSH, as Candidate Aggrieved

Objectors/Petitioners-Appellees,

-against -

James A. Walsh, Douglas A. Kellner,

Evelyn J. Aquila, and Gregory P. Peterson,
COMMISSIONERS CONSTITUTING THE
NEW YORK STATE BOARD OF ELECTIONS,

Respondents-Appellees.

APPELLANT BRIEF
rd
3 Dept. Index No. 510204; Sup. Court Index No. 4979-10

KATHLEEN O’KEEFE, Esq.

By: LYNELLE K. BOSWORTH, Esq.,
Of Counsel
Attorneys for Respondent-Appellant
65 Anthony Drive
Earlton, NY 12058
C (518) 222-0108
F (518) 291-4522
 TABLE OF CONTENTS

QUESTIONS PRESENTED ………………………………………………………….…. 3

STATEMENT OF FACTS …..…………………………………….................................. 4

ARGUMENT ……………………………………………………………………………. 5

I. THE PETITION FILED BY APPELLANT MCGRATH IS SUFFICIENTLY

INFORMATIVE TO PROVIDE NOTICE OF THE OFFICE SOUGHT AND TO
PRECLUDE ANY REASONABLE PROBABILITY OF CONFUSING OR
DECEIVING ANY SIGNER, VOTER OR THE BOARD OF
ELECTIONS.………………………………………………………….……… 5

A. Appellant’s designating petition is valid…………………..………….. 5

B. Rights of voters should be preserved.…………………..…..………… 8

II. THE COURT BELOW SHOULD HAVE GRANTED APPELLANT-

RESPONDENT’S MOTION TO DISMISS….………………………………. 10

CONCLUSION …………………………………………………….………………….. 11

2
 QUESTIONS PRESENTED

1. Whether the information provided in Respondent-Appellant’s Designating Petition is

sufficiently informative to preclude any reasonable probability of confusing or deceiving the

signers, voters or board of elections as to the office sought.

The Supreme Court rejected Respondent-Appellant’s argument that sufficient

information is provided.

2. Whether the failure of Petitioners-Respondents to correctly designate Mr. McGrath’s

address was substantially prejudicial such as to invalidate the verified petition on its face.

The Supreme Court rejected Respondent-Appellant’s argument that the failure of

Petitioners-Respondents to correctly designate Mr. McGrath’s address was substantially

prejudicial such as to invalidate the verified petition on its face.

3
 STATEMENT OF FACTS

Petitioners-Respondents (hereinafter Respondents) Adam Odett and Mary Dasno, citizen

objectors, and Kenneth Blankenbush, as a candidate aggrieved, commenced this proceeding

pursuant to Election Law §§ 16-100, 16-102 and 16-116 against James A. Walsh, Douglas A.

Kellner, Evelyn J. Aquila, and Gregory P. Peterson, as Commissioners of the New York State

Board of Elections and against Brian S. McGrath (hereinafter Appellant or McGrath), candidate

for the public office of Member of the New York State Assembly, 122nd Assembly District, to

declare invalid the petition filed with the New York State Board of Elections designating Mr.

McGrath as a candidate for Member of the New York State Assembly, 122nd District, at the

September 14, 2010 Democratic Party Primary Election. Thereafter, Respondents attempted to

serve an Amended Verified Petition. Subsequently, McGrath made a motion to dismiss the

Verified Petition in the above proceeding as prejudicial, untimely and void for failure to properly

verify the petition. Respondents then served a notice of cross-motion which sought leave to file

and serve an Amended Verified Petition. Oral arguments were held on August 6, 2010 before

the Honorable Henry F. Zwack. A decision and order dated August 6, 2010 was issued denying

Appellant's motion to dismiss holding that the cross-motion was moot, granting Respondents’

request for relief and declaring Mr. McGrath's designating petition invalid. This appeal ensued.

4
 ARGUMENT

I. RESPONDENTS HAVE FAILED TO MEET THEIR BURDEN TO

SHOW THAT THE DESIGNATING PETITION FILED BY
APPELLANT MCGRATH IS NOT SUFFICIENTLY INFORMATIVE
TO PROVIDE NOTICE OF THE OFFICE SOUGHT AND TO
PRECLUDE ANY REASONABLE PROBABILITY OF CONFUSING
OR DECEIVING THE SIGNERS, VOTERS OR THE BOARD OF
ELECTIONS.

A. Appellant’s designating petition is valid.

The courts should review a challenge to the designating petition with care because, if

the challenge is sustained, the result will be to deny voters a choice in the election and, as is

the case here, leave a major ballot party line blank.

A designating petition “shall be presumptively valid if it is in proper form...” (Election

Law § 6-154[1]). On a designating petition, the name of the office which a candidate is seeking

to occupy “may be described in various ways” as long as it is “‘sufficiently informative … so as

to preclude any reasonable probability of confusing or deceiving the signers, voters or board of

elections’” (Matter of Dunlea v New York State Bd. of Elections, 275 AD2d 589, 590 [2000];

see also, Matter of Dipple v Devine, 218 AD2d 918, 918-919 [1995], lv denied, 86 NY2d 704

[1995] [quoting, Matter of Donnelly v McNab, 83 AD2d 896 (1981), lv denied, 54 NY2d 603

(1981)]; Matter of Bliss v Nobles, 297 AD2d 457, 458 [2002]; Matter of Jocobson v

Schermerhorn, 104 AD2d 534 [1984]; Matter of Denn v Mahoney, 64 A.D.2d 1007, 1008

[1978]). Further, Election Law § 6-134(10) states that the law “shall be liberally construed, not

inconsistent with substantial compliance.”

Here, Respondents failed to make any showing that the designating petition filed by

McGrath is not sufficiently informative, precluding any reasonable probability of confusion or

5
deception. Such designating petition meets the standard established by the Election Law and the

case law.

McGrath’s petition is sufficient, stating under the heading “Public Office”: “New York

State Assembly – 122nd District.” The petition thus sets forth both the “public office” sought,

i.e., the “New York State Assembly,” and the political or geographic subdivision, i.e., 122nd

District, to be represented, as required (Election Law § 6-132 [1]).

Cases where the petitions have been declared invalid can be distinguished from the facts

here. In Denn, the Court invalidated a designating petition which specified only “147 Assembly

District” (Denn, 64 AD2d at 1008). The information provided in Denn is strictly geographic and

thus deemed insufficient. In Dunlea, the Court invalidated a petition for describing the office

sought as “State of New York 108th Assembly District” (Dunlea, 275 AD2d at 589). While more

information is provided than in Denn, taken alone, “State of New York” does not adequately

describe the office sought, as a person cannot be a candidate for New York State. McGrath’s

petition, in comparison, clearly states the office for which he was a candidate, as well as the

geographic district: “New York State Assembly – 122nd District.” Taken on its own “New York

State Assembly” sufficiently describes the office sought by McGrath. The remainder of the title

adequately provides geographic information. Therefore, the information provided by McGrath is

reasonably informative as to be sufficient under the standard set by the courts.

In Matter of James Lozano (253 AD2d 569, 570 [1998]), it was contended that the

designating petitions of eight candidates for judicial delegate should be invalidated because the

term “convention” was not included in the description for party position sought. The petitions

stated “Delegate 3rd Judicial District 102 A.D.”, “Delegate 3rd Judicial District 104 A.D.”,

“Delegate 3rd Judicial District 106 A.D.”, “Delegate 3rd Judicial District 107 A.D” (id).

6
Although the basis of the challenge was similar to the challenge here, namely, that the position

description, “Delegate 3rd Judicial District” was not sufficiently clear, the court upheld the

candidates designating petitions (id). Here, McGrath’s designating petition states, directly under

the heading “Public Office,” “New York State Assembly,” which is sufficiently informative such

as to avoid any confusion.

Turning to the issue of precluding confusion or deception, here, there is no danger of

confusing or deceiving the voters or signers by the information provided by McGrath’s petition.

Respondents offered no proof or evidence whatsoever to the court below to support their claim

of voter confusion. There are only conclusory statements by counsel to the supposed confusion.

The information provided and circumstances surrounding McGrath’s designating petition are

strikingly different from prior cases in which a designating petition has been invalidated under

the Election Law. In Matter of Hayes v New York State Bd. of Elections (32 AD3d 660, 661

[2006]), the designating petition was invalidated for setting forth only the geographic

subdivision, “127th Assembly District.” This Court held the petition was not sufficiently

informative “[b]ecause both a Member of Assembly and a delegate to the judicial convention are

selected from the 127th Assembly District, simply denoting the geographic territory without

reference to the title of the public office or position sought” there was a reasonable probability of

confusion or deception since signers could not discern the office being sought by looking at the

petition ( id [emphasis added]). Similarly, in Matter of Bliss v Nobles (297 AD2d 457, 458

[2002]), this Court invalidated the designating petition stating “Assembly District 115” because

signers could not discern from referencing the petition, which public office was being sought, the

Court noting that more than one public office – member of Assembly and judicial delegate –

7
were elected from the 115th Assembly District. The petition in Bliss again made no reference to

the public office actually sought, but only to geographic territory to be represented (id).

Respondents object to the absence of one word- “Member” -from McGrath’s designating

petition, alleging that this so-called omission is confusing. However, McGrath’s petition sets

forth both the public office sought “Public Office: New York State Assembly…” and the

geographic area to be represented: - 122nd District. The harm sought to be protected against - the

confusion of the voters, as well as petition signers or the Board of Elections- is simply not

present here and Respondents have made no demonstration of any. Further, the facts in the

present case vary greatly from those cases relied on by the court below. In both the Hayes and

Dunlea cases, the courts emphasized the fact that alternate races were taking place

simultaneously which could have lead to voter or signer confusion. Unlike those cases, no other

race is taking place in the 122nd Assembly District Primary on September 14, 2010. There is no

reasonable probability of confusion or deception as to the office sought here, it is the election for

the New York State Assembly from the 122nd Assembly District.

B. Rights of voters should be preserved.

The right to vote is guaranteed by the New York State Constitution, and significantly, the

Constitution proscribes disenfranchisement (NY Const, art I, § 1). It is the right of every voter to

be safeguarded against disenfranchisement and to have his or her intent implemented wherever

reasonably possible (Matter of Weinberger v Jackson, 28 AD2d 559 [2nd Dept. 1967], aff’d,19

NY2d 995 [1967]).

The rights of the voter has always been the ultimate purpose of the election law.

Assuming arguendo, that McGrath’s petition can be construed to contain a trivial defect, as held

8
in Application of Savoia (65 NYS2d 18, 20 [1936]), such trivial defects in a designating petition

should be deemed inconsequential and be permitted. Here, the rights of the Democratic Party

voters in the 122nd Assembly District to have a candidate appear on the Democratic Party line

must be the first and foremost concern and this Court must act to protect said rights if no harm

can be established. To do otherwise would disenfranchise voters of the Democratic Party in the

general election to be held on November 2, 2010 for the mere absence of one word.

The Election Reform Act of 1992 was enacted to advance the public policy objectives of

preserving the rights of candidates, while seeking to prevent the disenfranchising of voters, by

ensuring that harmless mistakes in a designating petition would no longer result in the end of a

candidate’s campaign (Matter of Cozzolino v Columbia County Board of Elections, 218 AD2d

921, 923 [1995], lv denied, 86 NY2d 704 [1995]). To that end, in Matter of Acosta v Previte, et

al (39 NY2d 720 [1976]), it was alleged that there was fraud involved in the collection of

signatures for a designating petition. The court stated that it would be “excessive to punish both

the candidates and the voters by excluding the candidates from the primary election.” The court

below had stated that the “petitioners had the burden of proving the invalidity of the designating

petition” (Matter of Acosta v Previte, (51 AD2d 960 [1976]). The Court of Appeals affirmed,

stating further that “petitioners did not sustain their burden of proving the invalidity of the

petition, either by proof of permeating fraud or of such other irregularities as to nullify it” (id.

[emphasis added]). Here, Respondents have not met the burden of proving the invalidity of

McGrath’s petition.

9
 II. THE COURT BELOW SHOULD HAVE GRANTED APPELLANT-
RESPONDENT’S MOTION TO DISMISS

While CPLR §3026 provides that pleadings shall be liberally construed, the failure of the

Respondents to correctly designate Mr. McGrath’s address acts as a substantial prejudice.

Respondents concedes that the address used in the verified petition is not Mr. McGrath’s address.

Failure to correctly identify a candidate’s address creates substantial prejudice to the candidate’s

quest for public office. The public knowledge that his or her campaign is under legal challenge

chills supporters, encourages detractors, and makes fundraising difficult. Since Mr. McGrath’s

address is completely wrong in the challenging petition, even as to the locality, the public is

misled and great prejudice inures to Mr. McGrath. The fact that Respondents’ verified petition

contains an inaccurate residential address for McGrath and then contends inaccuracy in the

description of the office sought and incorrect address as a basis for invalidation of McGrath’s

designating petition makes Respondents’ own error doubly galling. Further, Respondents’

attempts to correct this error by serving an amended pleading and then seeking leave to serve an

amended pleading, underscores the recognition of the substantial prejudice to Mr. McGrath.

Although liberal construction of pleadings is the general rule, a court cannot knowingly disregard

a defect which is prejudicial to the opposing party (DiMauro v Metropolitan Suburban Bus

Authority, 105 AD2d 236, 240 [1984]).

Election Law §16-102 provides that a proceeding with respect to a designating petition

shall be instituted within fourteen days after the last day to file the petition. If the court finds that

the failure of Respondents-Petitioners to correctly designate Mr. McGrath’s address was

substantially prejudicial such as to invalidate the verified petition on its face, the court must

dismiss it as the amended verified petition was not timely served.

10
 CONCLUSION

As the foregoing analysis demonstrates, Appellant McGrath’s designating petition is

sufficiently informative so as to preclude any reasonable probability of confusing or deceiving

signers, voters or board of elections. The position sought, New York State Assembly, is clearly

and informatively set forth, as its geographic designation, the 122nd Assembly District. There are

no other elections at issue, thereby dismissing any confusion or deception of the electorate. The

case law relied upon by Respondents does not have similar fact patterns and therefore, should not

be dispositive. The only way to prevent voter disenfranchisement would be rule Appellant

McGrath’s designating petition valid, clear and sufficient. Accordingly, the Court should reverse

the Supreme Court’s decision and hold that McGrath’s Democratic Party designating petition for

the 122nd Assembly District seat is valid.

Finally, if the court finds that the failure of Respondents-Petitioners to correctly designate

Mr. McGrath’s address was substantially prejudicial such as to invalidate the verified petition on

its face, the court must dismiss it in its entirety.

Respectfully submitted,

____________________________

Kathleen O’Keefe, Esq.

By: Lynelle K. Bosworth, Esq.,
Of Counsel
Attorneys for Respondent-
Appellant, Brian S. McGrath
65 Anthony Drive
Earlton, New York 12058
(518) 222-0108

11