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In re Malone

Supreme Court of New York, Second Department

October 2, 2013

In the Matter of Dennis J. Malone, appellant,
v.
Rockland County Board of Elections, et al., respondents. Index No. 1799/13

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In a proceeding pursuant to Election Law § 16-106, inter alia, to invalidate certain absentee ballots cast in a primary election held on September 10, 2013, for the nomination of the Working Families Party as its candidate for the public office of Superintendent of Highways of the Town of Clarkstown, the petitioner appeals from a final order of the Supreme Court, Rockland County, dated September 24, 2013, which, after a hearing, in effect, granted the motion of the respondent Wayne T. Ballard to dismiss the petition, and dismissed the petition and the proceeding.

ORDERED that the final order is affirmed, without costs or disbursements.

The Supreme Court properly, in effect, granted the motion of the respondent Wayne T. Ballard to dismiss the petition. The allegations in the petition in support of the claim of fraud were not sufficiently specific (see CPLR 3016[b]; Matter of Robinson v Edwards, 54 A.D.3d 682, 683; Matter of Graham v Umane, 254 A.D.2d 359, 359), and the petition failed to allege that the absentee ballot applications at issue did not comply with Election Law § 8-400(3)(c)(i) (see Matter of Cohen v Suffolk County Bd. of Elections, 83 A.D.3d 1063). Thus, the respondents did not receive adequate notice of the allegations supporting the petition.

In any event, at the hearing the petitioner failed to submit any evidence to substantiate his claim that the collection of absentee ballots by the respondent Wayne T. Ballard was permeated by fraud (see generally Matter of Kolb v Casella, 270 A.D.2d 964, 965). Moreover, the absentee ballot application forms provided by the Rockland County Board of Elections and completed by voters sufficiently complied with the requirements of Election Law § 8-400 (see Election Law § 8-400[10]; see also Matter of Stewart v Chautauqua County Bd. of Elections, 14 N.Y.3d 139, 150-151; Matter of Panio v Sunderland, 4 N.Y.3d 123, 127-128).

CHAMBERS, J.P., HALL, AUSTIN and MILLER, JJ., concur.


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