To be Argued by: Ezra B. Glaser

Time requested: 15 minutes

APPELLATE DIVISION OF THE SUPREME COURT

SECOND JUDICIAL DEPARTMENT

-----------------------------------------------------------------:

In the Matter of the Application of SIMCHA

FELDER,

Petitioner-Appellant,

– against –

DAVID STOROBIN,

Respondent-Respondent,

- AND -

THE BOARD OF ELECTIONS IN THE CITY OF

NEW YORK;

Respondent- Respondent,

for an Order, Pursuant to Article 16 of the Election

Law Denying the Invalidity of a Designating

Petition.

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Docket #:

2012-07521

County Clerk’s

Index #: 700013/2012

RESPONDENT-RESPONDENT DAVID STOROBIN’S

BRIEF IN OPPOSITION AND IN SUPPORT OF CROSS-APPEAL

Dated: New York, New York

August 29, 2012

By: ___________________________

Ezra B. Glaser, Esq.

CONDE & GLASER, LLP

Attorneys for Respondent-Respondent

DAVID STOROBIN

305 Broadway, Suite 801

New York, New York 10007

(212) 385-9300

To: Kantor, Davidoff, Wolfe, Mandelker, Twomey & Gallanty, P.C.

Attorneys for Petitioner-Candidate-Aggrieved Simcha Felder

51 East 42st Street, 17th

Floor

New York, NY 10017

Stephen Kitzinger, Esq.

Corporation Counsel of the City of New York

100 Church Street

New York, NY 10007

i

Table of Contents

Preliminary Statement .................................................................................................................. 1

Questions Presented ....................................................................................................................... 4

Statement of Facts .......................................................................................................................... 6

A. Introduction ................................................................................................................................. 6

B. Senator Storobin’s testimony on the gathering of the signatures was

completely credible...................................................................................................................... 12

C. The testimony of Michail Issak supported Senator Storobin’s explanation of

how his signature was gathered, which remains uncontradicted in every respect

.............................................................................................................................................................. 15

D. The testimony of the Petitioner’s expert lacked credibility in all respects. .... 15

E. The testimony of Anatoliy Smolyanskiy completely destroyed the expert’s

credibility. ........................................................................................................................................ 22

Argument ......................................................................................................................................... 24

Point I: THE TESTIMONY OF WITNESSES, RESPONDENT STOROBIN

AND MICHAIL ISSAK, SUPPORTS THE COURT’S DECISION THAT NO

FRAUD WAS COMMITTED WITH RESPECT TO THE COLLECTION OF

THE ISSAK SIGNATURE AND THE PLACEMENT OF HILDA DANGER’S

PRINTED NAME UNDERNEATH SAID SIGNATURE. ........................................ 24

Point II: THE COURT EXERCISED PROPER DISCRETION AND

CORRECTLY FOUND THAT MR. LUBER’S TESTIMONY WAS

ISSUFFICIENT TO DEMONSTRATE BY CLEAR AND CONVINCING

EVIDENCE THAT THE SIGNATURES AT ISSUE WERE FRADULENTLY

OBTAINED BY RESPONDENT STOROBIN............................................................... 34

Point III: THE COURT HELD THAT RESPONDENT STOROBIN’S

TESTIMONY ON THE ISSUES BEFORE IT WAS CREDIBLE, AND

EXERCISED SOUND DISCRETION IN DOING SO. ............................................... 40

ii

Point IV: THE PETITIONER-APPELLANT COMPLETELY

MISREPRESENTS THE USE OF A TEAM METHOD UTILIZED BY THE

RESPONDENT IN GATHERING SIGNATURES. ..................................................... 44

Point V: THE COURT CORRECTLY EXCLUDED EVIDENCE AND

TESTIMONY OF ADDITIONAL SIGNATURES NOT PREVIOUSLY

PARTICULARIZED IN THE PLEADINGS. .................................................................. 46

Point VI: THIS MATTER SHOULD HAVE BEEN DISMISSED BY THE

COURT PRIOR TO TRIAL FOR PETITIONER’S FAILURE TO STATE THE

FRAUD ALLEGATIONS WITH SPECIFICITY. ......................................................... 50

CONCLUSION ............................................................................................................................. 55

iii

TABLE OF AUTHORITIES

Case Law

Belak v. Rossi, 96 A.D.2d 1011 (3d Dept. 1983) ........................................ 47, 53, 54

Berney v. Ragusa, 76 A.D.3d 647 (2010) ............................................................. 29

Bonner v. Negron, 87 A.D.3d 737 (2d Dept. 2011) ............................................ 29

Cronk v. Ferencsik, 181 A.D.2d 754 (2d Dept. 1992) ......................................... 24

Drace v. Sayegh, 43 A.D.3d 481 (2d Dept. 2007) ....................................... 37, 38, 43

Flowers v. Wells, 57 A.D.2d 536 (2d Dept. 1977) ............................................ 46, 47

Harris v. Duran, 76 A.D.3d 658 (2010) ............................................................... 29

Hennessey v. DiCarlo, 21 A.D.3d 505 (2d Dept. 2004) ...................................... 51

Islamic Ctr. Of Harrison v. Islamic Science Found,

262 A.D.2d 362 (2d Dept. 1999) ......................................................................... 42

Keppert v. Tullo, 88 A.D.3d 826 (2d Dept. 2011) ............................................... 25

McGuirk v. Mugs Pub, 250 A.D.2d 824 (2d Dept. 1998) .................................. 42

McHugh v. Comella, 307 A.D.2d 1069 (3d Dept. 2003) .................................. 29, 31

Morini v. Scannapieco, 286 A.D.2d 459 (2d Dept. 2001) ..................... 38, 39, 42, 43

Naples v. Swiatek, 286 A.D.2d 567 (4th

Dept. 2001) ............................. 50, 52,53, 54

Perez v. Galarza, 21 A.D.3d 508 (2d Dept. 2005) ............................................. 29, 31

Oberle v. Caracappa, 133 A.D.2d 202 (2d Dept. 1987) .................................... 51, 52

O’Donnell v. Ryan, 19 A.D.2d 781 (2d Dept. 1963) ......................................... 29, 32

O’Toole v. D’Arpice, 112 A.D.2d 1078 (2d Dept. 1985) ................................. 50, 52

Robinson v. Edwards, 54 A.D.3d 682 (2d Dept. 2008) ......................... 49, 52, 53, 55

Rodriguez v. Harris, 51 N.Y.2d 737 (1980) ........................................................ 44

iv

Santiago v. Westchester County Bd. of Elections,

8 Misc.3d 1027A (Westchester County Supreme Court, 2005) .......................... 51

Sasson v. Kavadas, 2009 N.Y.Misc. 2199 (Index # 20318/09) ........................... 51

Tapper v. Sample, 54 A.D.3d 435 (2008) ............................................................ 38

In Re Volino, 87 A.D.3d 657(2d Dept. 2011) ............................................. 35, 42, 48

Waugh v. Nowicki, 10 A.D.3d 437 (2d Dept. 2004) .............................. 50,51, 52, 53

Wooten v. Barron, 242 A.D.2d 351 (2d Dept. 1997) .......................................... 53

Zunno v. Fein, 175 A.D.2d 935 (2d Dept. 1991) ................................................. 24

Statutes

CPLR § 3016(b) ........................................................................ 4,46,47,49, 50, 53,54

Election Law § 16-102 .................................................................................... 49,52

Election Law § 6-132(2) ...................................................................................... 25

Election Law § 6-132(3) ...................................................................................... 30

E.P.T.L. § 3.2-1(a)(4) ........................................................................................... 25

R.P.T.L. § 304 ...................................................................................................... 25

1

Preliminary Statement

Respondent-Respondent David Storobin (hereinafter, “Respondent

Storobin” or Senator Storobin), a Russian émigré, was elected State Senator of the

17th Senate District in Brooklyn on March 20, 2012. Senator Storobin arrived from

the Soviet Union in 1991 when he was twelve years old and is the first Russian-

speaking elected official to hold office in the State of New York. Respondent

Storobin won his election in an extraordinary upset of the Brooklyn political

machinery, winning his election by 13 votes. As is the case with this election law

proceeding, his previous opponent in a special election cried fraud and instituted a

proceeding after the election was over (which was also was found to have no merit

by Justice Martin).

Respondent Storobin, a candidate for the Republican Party nomination for

New York State Senate in the 17th

Senate District (the seat he presently holds),

submits this Brief in opposition to the Appeal filed by Petitioner-Appellant Felder,

the Democratic candidate for State Senate in the 17th Senate District from the

Order of the Supreme Court, Kings County (Martin, J.) of August 13, 2012,

dismissing the Petitioner-Appellant’s Petition to Invalidate. This Brief is further

being submitted in support of the Cross-Appeal filed by the Respondent to the

2

Order of Justice Larry D. Martin, dated August 10, 2012, denying Respondent’s

Motion to Dismiss this proceeding prior to the trial in this matter.1

The Storobin Petition contained 2,054 signatures, of which, 1457 were found

to be valid by the Board of Elections (457 more than were required to make a valid

and effective nomination). The within proceeding turned on whether Respondent

Storobin committed fraud in the collection of six specific signatures, and

specifically, whether he had merely made a careless mistakes as to one signature

underneath which he had printed in another person’s name. The hearing court

decided correctly after three days of testimony that the Respondent had indeed

been careless and made a mistake with regard to the one signature, while rejecting

the testimony of a forensic document examiner as to the five others. Taken at face

value, Storobin’s testimony as to how the mistakes were made was credible and

while the Petitioner-Appellant’s allegations of fraud were unsubstantiated. The

trial court further determined that Petitioner-Appellant did not prove by clear and

convincing evidence that Respondent Storobin’s designating petition was the

1 It is to be noted that the papers were filed as a “Notice of Appeal” based on the fact that

Petitioner-Appellant was appealing the final order of the court, dated August 13, 2012 dismissing

the Petition, while Respondent was appealing the order denying Petitioner’s motion to dismiss,

dated August 10, 2012 - which could not be filed with the County Clerk’s office as a Cross-

Appeal. However, both Petitioner-Appellant and Respondent, with the permission of the court,

agreed that the motion would be treated as a Cross-Appeal, and would be treated in the

Petitioner-Appellant’s Brief.

3

subject of candidate fraud or otherwise “permeated with fraud,” and found the

testimony of Petitioner-Appellant’s handwriting to be unconvincing.

4

Questions Presented

Question 1. Was the testimony of Respondent, Storobin, Michail Issak, and other

witnesses sufficiently credible to support the Trial Court’s determination that no

fraud was committed with respect to the collection of the Michail Issak signature

and the placement of Hilda Danger’s printed name underneath said signature?

Answer 1. The Trial court determined that there was credible evidence to

support a finding that no fraud was committed by Respondent Storobin.

Question 2. Did the Trial court exercise sound discretion and correctly find that

Petitioner-Appelant’s forensic document examiner’s testimony was insufficient to

demonstrate by clear and convincing evidence that the signatures at issue were

fraudulently obtained?

Answer 2. The Trial court found correctly found that Mr. Luber’s testimony was

insufficient.

Question 3. Did the Court exercise sound discretion when it held that Respondent

Storobin’s testimony on the issues before it, including the issue as to whether he

5

fraudulently collected certain signatures or otherwise had knowledge of fraud in

his designating petition, was credible?

Answer 3. The Trial court exercised sound discretion in finding that Respondent

Storobin was credible with respect to the issues before it.

Question 4. Did the Trial court correctly exclude evidence and testimony with

regard to additional signatures not previously particularized in the pleadings?

Answer 4. The Trial Court correctly excluded the additional signatures, as there

was no notice to the Respondent within the requisite time frame pursuant to CPLR

§3016 or the rules of the Special Election Part.

Question 5. Should this matter have been dismissed by the court prior to trial for

petitioner’s failure to state the fraud allegations with specificity?

Answer 5. The Court below incorrectly decided “no.”

6

Statement of Facts

A. Introduction

On July 12, 2012, a petition containing 2,054 signatures2 was filed with the

New York City Board of Elections designating Respondent Storobin as a candidate

for the Republican party nomination for the public office of New York State

Senator for the 17th Senate District, in the Republican primary election to be held

on September 13, 2012. Should he gain the nomination of the Republican Party,

Senator Storobin will be a candidate in the general election to be held on

November 6, 2012 (hereinafter, the “Storobin Petition”).

After this filing, general objections and specific objections were filed with

the Board of Election by citizen-objector Theodor Ditchek on behalf of Democratic

Candidate Simcha Felder, which were ultimately rejected by the Board of

Elections as a prima facie matter for failure to file proof of service.

On July 24, 2012, the within action was brought by Order to Show Cause in

the Supreme Court as a Petition to Invalidate the designating petition of David

Storobin as an Election Law Proceeding pursuant to Article 16 of the Election

Law, wherein the Petitioner-Appellant, Felder, claimed to be a “Candidate

2 After hearing oral argument on the exceptions, the court modified the referee’s

report to reduce the number of valid signatures in respondent’s designating petition

to 1,457 valid signatures. As modified, the referee’s report was confirmed.

7

Aggrieved.” The Petition to Invalidate made various boilerplate claims of fraud –

including fraudulent conduct by Respondent Storobin in his capacity as a

subscribing witness, knowledge of fraud within the Petition and “permeation of

fraud” in the attempt to invalidate the Respondent’s designating petition.

The Respondent thereafter initiated a Petition to Validate by Order to Show

Cause, which was filed with the court on July 25, 2012, and duly served upon the

citizen objector, Theodor Ditchek (prior to the prima facie ruling on the part of the

Board of Elections) claiming that the designating petition of Senator Storobin was

in all respects proper and valid. An Answer to the Petition to Invalidate was also

timely served and filed with the court on the return date prior to the calendar call.

Within said Answer, the Respondent alleged as an affirmative defense that the

proceeding should be dismissed on the ground that the Petition served on July 24,

2012 did not allege fraud with particularity, and that the alleged defect could not be

cured nunc pro tunc. The answer also contained a counterclaim seeking an order

validating the Storobin Petition.

Your Affirmant made an oral motion to dismiss the within action on the first

return date of the proceeding before Justice Schmidt and presented a brief in

support of said motion to the Court which had already been served on the

Appellants. It is unclear as to what the Petitioner-Appellant refers to when it is

claimed a motion to dismiss was not made. This is absolutely factually inaccurate,

8

as an order denying the motion was signed on August 10, 2012, and the Court

decided to take testimony on the issue of the alleged fraud. The basis for the

motion to dismiss was that the Petition to Invalidate failed to specify the fraud

allegations against the Respondent with particularity and also failed to “incorporate

by reference” the Specifications of Objections or any other offer of proof filed with

the Board of Elections within the Petition to Invalidate. Four days later, Petitioner-

Appellant served an amended petition claiming it was being served as of right

pursuant to CPLR § 3025(a).

The Court below (Schmidt, J.) proceeded on two tracks. First it directed that

a de novo line by line examination of the Storobin Petition proceed under the

auspices of its special referees. Days later, the court assigned the proceeding for all

purposes to Justice Larry D. Martin.

Before, during and after the filing of the Petitioner-Appellant’s Petition to

Invalidate, the Petitioner himself and through his legal and campaign surrogates

made various claims – in the press, legal papers and in argument before the court,

where it was alleged that a signature collected by Respondent Storobin himself

belonged to a deceased voter was thus fraudulently collected by the candidate. Her

perhaps interesting name – “Hilda Danger” – was touted openly and publicly with

such a loud refrain, it took on the life of a science fiction episode. “Danger, Will

Robinson. Danger. Hilda Danger.” Rather than letting this poor woman rest in

9

peace, the Felder campaign repeatedly reiterated that a the candidate himself – an

attorney and current State Senator, was out and about collecting the names of dead

people on his petition.

When Respondent, Senator Storobin, was first contacted by the press

concerning the signature at issue, he and members of his campaign were instructed

by Your Affirmant to immediately go to the location where the signature was

collected and gain an understanding as to what occurred prior to the submission of

the designating petition. What was known from the document was that a signature

had been placed on the first line of a petition sheet on July 6; no other petition

signatures were collected on that sheet; an illegible signature appeared in the space

provided; the handwritten name of Hilda Danger had been placed underneath the

signature in the Respondent’s own handwriting; and two numbers of the street

address 1569 Ocean Avenue had been crossed off, while another street address,

1576 Ocean Avenue, had been placed above it. While the Petitioner-Appellant

repeatedly states that the first number had been obliterated, this is blatantly

incorrect. Indeed, the original address is completely noticeable and there clearly

was no effort to hide the original address.

10

Immediately thereafter, State Senator Storobin first went to the address of

Hilda Danger’s apartment (T. 180, Lines 7-153), and then to the home of the actual

signer of the Petition, one, Michail Issak (T. 157, Lines 1-10) – who confirmed to

Senator Storobin that he had been to his apartment. Mr. Isaak identified his

signature on the Petition as his own, stated that he knew of him as a State Senator

and that he had stated that he was a Republican when he signed it. (T. 177, Lines

21-24 and T. 182, Lines 9-13). In further discussion, Senator Storobin learned that

Mr. Issak was not actually a citizen – and thus, not a Republican voter. There was

simply a misunderstanding as to his identification of being a Republican and

identifying with the Republican Party.

On the first return date of all of the election law cases in Kings County,

when Your Affirmant raised the objection of the “boilerplate” and “blunderbuss”

nature of the fraud charges the signature appearing above Hilda Danger’s name

was discussed specifically. It was reported that the signature had not been

fraudulently presented; that the name of the signer was known to Your Affirmant;

that the signer was willing to testify; and that Senator Storobin did indeed sign

truthfully when he acknowledged that each of signatures were signed in his

presence and identified themselves as members of the Republican Party when he

took the signature. Despite all of the wild speculation as to what may have

3 Indicates pages of the trial transcript

11

happened when Mr. Storobin took the signature, the alleged fraud was never

proven by clear and convincing evidence. In fact, the Petitioner-Appellant’s entire

claim regarding intentional fraud on the part of Respondent Storobin was

thoroughly debunked with the testimony of Mr. Issak, who stated that he did sign

the petition and lent credence to the innocence of the mistake made by Respondent

Storobin.

As to the remaining issues presented at the trial – there was no basis to find

that any of the five signatures gathered by Respondent Storobin were in any way

fraudulent, as alleged by the Petitioner-Appellant. The trial court found that there

was no indication that any of those signatures were fraudulent, as alleged by the

Petitioner, or that the petition was permeated with fraud. It is to be noted that one

of the five signatures that the Petitioner-Appellant contends as being fraudulent –

that of Edith Garcia, belongs to a duly-enrolled voter of the Democratic Party.

Accordingly, it is the Petitioner-Appellant’s contention that Senator Storobin was

risking both his law license and his State Senate seat by fraudulently signing the

name of a Democratic voter who would never be counted on his Petition. Indeed,

in describing the “scienter” of the Respondent, the Petitioner would have us

believe that he deviously wrote the name of Hilda Danger with knowledge that she

was not the signer, the name of another Democratic voter, and committed some

type of fraud on four other signers, whose signatures on the Petition sheets and the

12

signatures on the corresponding voter identification cards, were taken some 12 to

28 years apart4.

Needless to say, Respondent Storobin would not have risked his entire

designating petition and legal career in doing this – even with the testimony of a

high-priced handwriting expert on this small sampling of signatures in a petition

that contained almost five hundred extra valid signatures to qualify for the ballot.

He simply did not need this handful of signers to make it on the ballot. Nor is

there any basis to support the wild theories that Respondent Storobin’s petition

gatherers committed fraud, or that he had knowledge of any fraud. This again is

simply a matter of wild speculation on the part of the Petitioner-Appellant, with no

basis in fact.

B. Senator Storobin’s testimony on the gathering of the signatures was

completely credible.

Respondent Storobin testified that he was a State Senator and an attorney

admitted to practice in New York. (T. 79, lines 14-17). He was a witness to

approximately thirty signatures on the Storobin Petition: six on July 3, 2012; 17 on

July 6, 2012; and seven on July 7, 2012. Ten of these signatures appeared on Sheet

4 The Court on Page 12 of its decision specifically wrote, “Moreover, even if it were established

that these signatures were executed by someone other than the person identified in the petition,

no evidence has been introduced demonstrating that respondent Storobin was aware of this so as

to charge him with fraud.”

13

23 and six signatures on Sheet 47 of Vol. KG1202199 (“Vol. 199”), while one

signature appeared on Sheet 30 of Vol. KG1202201 (“Vol. 201”).

During the hearing, Storobin testified that he personally witnessed all of the

signatures to which he attested as a subscribing witness. He explained that he used

the names and addresses of registered Republican voters that appeared on a “so-

called” campaign “walk list” to collect signatures for his designating petition. He

further explained that, with respect to the approximately 24 signatures he procured,

it was his standard practice to go to the address that appeared on the list, introduce

himself as a candidate, inquire as to whether the person was a registered

Republican voter, and if so, requested that the person sign the petition.

With respect to Sheet 30, line 1 of the petition volume KG1202201,

Strorobin testified that he personally obtained and witnessed the signature that

appears on that line, but that the space underneath the signature (reserved for the

printed name) was not filled out by the signatory. Storobin admitted that when he

later looked at the signature, using the “walk list” as a reference, he mistakenly

believed the signature to be that of “Hilda Danger,” printed in her name underneath

the signature and crossed out the original address and replaced it with Ms.

Danger’s address.

14

It was revealed during the hearing, and not disputed, that Hilda Danger was

deceased at the time that the signature on was procured. Although Respondent

Storobin admitted to writing the wrong printed name on the petition sheet, Storobin

maintained that he did in fact witness the signature on line 1 of the page, which he

later discovered to be that of Michail Issak.

Respondent Storobin procured the testimony of Michail Issak, who

corroborated Storobin’s testimony that he did in fact personally witness the subject

signature. Despite Senator Storobin’s error in setting forth the incorrect name and

address of the signatory, Mr. Issak testified that the signature appearing on Sheet

30, line 1 was in fact his signature, and that he recalled Storobin coming to his

apartment, introducing himself and asking him to sign the petition sheet. (T. 255,

lines 1-4, 11-13).

Storobin also testified that once he and his campaign were alerted to the

mistake on Sheet 30, line 1, he investigated the reason for the mistake. As stated

during his testimony at trial:

Q. And can you tell me what steps you took to investigate?

A. What steps we took?

Q. What steps you took?

A. Okay, well, we went to that same address that’s listed there. We went to

other apartments in the building on the same floor to see if there’s a mistake

with what the what-you-may-call-it, with the apartment number. And we

went to apartment 1F on the same building block to see if an address was

15

messed up. Because sometimes you walk into the building and you just walk

into the wrong building. [T. 157, lines1-10]

C. The testimony of Michail Issak supported Senator Storobin’s

explanation of how his signature was gathered, which remains

uncontradicted in every respect.

Michael Issak testified that it was Storobin, who was the person that came to

his apartment and collected his signature, (T. 254, line 25) and that he did indeed

sign his signature for him. He further testified that he met Storobin in the building,

when he stopped by his apartment (T. 255, lines1-4). He testified that his

signature was on the first line of the petition sheet at issue. (T. 255, lines 11-13).

Mr. Issak identified Storobin in the Courtroom as the person who came for his

signature (T. 255 lines 24,25 and T. 256 line 1). Mr. Issak told Senator Storbin

that he was a Republican. He also stated in his direct testimony that he specifically

told Senator Storobin that he was affiliated with the Republican Party, and that

Senator Storobin mentioned that he was a Republican too “some while ago.” (T.

256 line 25 and T. 257 lines 1-3).

D. The testimony of the Petitioner’s expert lacked credibility in all

respects.

The hearing court specifically found that the testimony of Mr. Luber, the

Petitioner’s “expert” forensic document examiner, regarding the five alleged

16

forgeries subscribed by Senator Storobin, to be “unconvincing and questionable at

best.” (Order dated August 13, 20125, P.13)

Indeed, Mr. Luber testified in direct testimony that “it may be possible to

make that examination,” when asked whether he would be able to compare a

“known”6 handwriting sample with a writing sample and form an opinion as to

whether they were written by the same person. (T. 13, line 8 through T. 14, line

12). This would be done based on habit patterns of writers consistent with such

features as “height relationships between letters, letter construction, connecting

strokes between letters, pen lifts between writings.” (T. 14, lines 16-22). He was

initially asked to compare machine copied petition sheets versus machine copies of

voter registration cards (T. 291, lines 4-6); he later examined the original petitions,

as well as the original voter registration cards. (T. 291, lines 4-6). The only

equipment Mr. Luber used was a hand magnifier which magnifies at approximately

four times enlargement. (T. 291, Lines 12-14). In other words, he was equally

equipped to conduct his “experiment” as a grade school student conducting a

science project with a magnifying glass.

On Cross-Examination, Mr. Luber testified that he testifies in Suffolk,

Nassau, Queens, Bronx and Bloom County courts as a handwriting expert –

5 Hereinafter, “Order.”

6 It is still not clear how the signature on the voter registration card is a “known” writing sample

while the signatur on the designating petition is not.

17

including Supreme Court, Surrogate’s Court and various lower courts, and has also

testified in New Jersey and Connecticut courts. In every case but those cases

venued in Suffolk County, he receives a minimum of $2,600.00 every time he

testifies. (T. 304, line 3). In this case, based on his examination of records at the

Board of Elections, conversations with attorneys, preparation of his report and

testimony, Mr. Luber received $13,760.00 for his handling of the case. (T. 305,

line 15).

At no point during his testimony did Mr. Luber ever specifically note how

the height relationships between letter, pen lifts, letter construction or connecting

strokes between letters differed in comparing petition signatures to the buff cards.

In fact, he admitted that he did not refer to habit patterns, or pen lifts or any other

test to determine how he identified the authenticity of a signature. (T. 311, lines

18-25). He also never produced the original or copies of voter registration cards

during his examination for the court to compare with the signatures on the Petition;

nor did he refer to any notes that he took in regard to the signatures – even though

he said that he took notes that were not available in court. (T. 314, Lines 15-18).

Only certified copies of the five voter registration cards at issue were produced

after the Petitioner rested for the court to compare with the petition signatures.

Mr. Luber testified that Mr. Mandelker and O’Brien Murray, Petitioner-

Appellant Felder’s Campaign Manager, pointed him to the documents they wished

18

for him to examine in the claims of candidate fraud. (T. 306, Lines 12-13). He did

not know whether he examined each and every line of Mr. Storobin’s Petition, (T.

306, Line 24), but he knew that he examined approximately 400-500 signatures.

(T. 307, lines 8-9). While he examined some machine copies of signatures from

voter registration cards and some originals, he did not distinguish how many

machine copies and originals he reviewed in his report. (T. 308, line 24, through

T. 309, Line 5). However, the normal range of variation, or “norm” with which to

compare signatures was off of the voter registration cards.

The differences Mr. Luber found between the Petition sheets and the voter

registration cards which he determined not to be genuine were “great and glaring,”

but he did not assign any type of numerical value to these differences. (T. 309, line

22 through T. 310, line 3). Nor did Mr. Luber make any mention of any normal

range variation in his report (T. 310, Lines 8-10). Mr. Luber stated that it was “not

necessarily” the case that a forensic document examiner would need a sufficient

amount of known writing samples to compare to the questioned writings, (T. 315

lines 22-25), then stated that as many as one or two “could be sufficient” (T. 315,

Line 9), and then stated, perhaps with some sarcasm, that as many as 50 signatures

would be helpful (T. 315, lines 7-14). It was only to be taken at face value that

just because the handwriting sample varied greatly from the initial voter

registration card, according to his testimony, that it was so.

19

Mr. Luber admitted that a person’s handwriting habits could change over

time (T. 315, Line 19), that handwriting can change as a person gets older (T. 315,

line 24 through T. 316, line 2); that a person’s signature may vary if he or she signs

quickly rather than slowly (T. 319, Lines 22-24); that a signature on a slanted piece

of paper on a desk might appear differently than a signature signed on a clipboard

(T. 320, Lines 3-5) . He further stated that exemplars of a signature and questioned

writings should be compared contemporaneously with the other “if it is possible.”

(T. 316, Lines 7-14). In this case, virtually none of the exemplars and questioned

writings were signed within two years of one another (T. 316, Lines 21-22); some

of the signatures he examined were over 10 years old; some were over 20 years old

(T. 316, Lines 24-25). In fact, as the court found with regard to the signatures

collected by Respondent Storobin, the exemplars ranged between 12 years and 28

years old. (Order, Page 12). Some of the signatures could have been provided by

elderly people (T. 317, Lines 19-20); they could have been provided by people

with carpal tunnel syndrome or some other medical condition (T. 317, Lines 24-

25). He did not mention any of these possibilities in his report. (T. 318, Lines 5-9).

Mr. Luber stated he would rather be examining signatures at a lab than at the

Board of Elections. (T. 318, Lines 10-13). If he had certain equipment, like a

stereomicroscope, he might be able to examine some finer features of the writing.

(T. 318, Line 25 through T. 319, Line 3). Some people with long names, for

20

example, might abbreviate their names. (T. 320, Lines 12-15). But it is “not at all”

the case that most people abbreviate their names at times. (T. 320, Lines 18-19).

Mr. Luber stated that even though people “may” abbreviate their names from time

to time, we just needed to look at the voter registration cards to see, from the one

and only exemplar of the handwriting he examined, that they did not in this case –

even though he failed to have the voter registration cards in court. (T. 320, Line 20

through T. 321, Line 8.).

Mr. Luber never called any of the signers to the Petition. He stated he would

“never do that,” and did not know whether he could do that. (T. 327, Line 16

through T. 328, Line 7). Mr. Luber just believed that the differences in the

signatures were “so glaring” that no such comparison needed to be made. (T. 328,

lines 14-16).

With respect to Mr. Anatoliy Smolyankiy, Mr. Luber was incredibly sure

that the same person who signed Mr. Smolyankiy’s registration card did not sign

the Petition. At trial Mr. Luber stated, “it is a scrawled name on both the

registration card and the voter poll card.” (T. 331, Line 2). To the question as to

whether Mr. Smolyanskiy, age 83, could not finish signing because of his age, he

responded very clearly and arrogantly: “Oh, I don’t know about that. His voter

poll card was a very smooth and fluent and scrawled signature, and it looked

nothing like his signature.” (Page 331, Lines 10-12). He “absolutely” remembered

21

that specific signature, and the reason he thought it was fraudulent. As will be

pointed out further, Mr. Smolyanskiy’s testimony in court destroyed any

credibility on the part of the handwriting expert.

Edith Garcia registered to vote on July 26, 1984 – the only exemplar Mr.

Luber compared to the signature on the petition. As such, the registration card was

signed 28 years before the signature was affixed to the Storobin petition. (T. 332,

Lines 16-17.) Ms. Garcia is not even a registered Republican, but Mr. Luber did

not notice that on the registration card – he was merely looking at signatures. (T.

332, Lines 19-25.) It was not even important for him to look at any other part of

the card. (T. 333, Lines 2-6.) As a forensic document examiner, he has “no idea”

why a person that would be committing fraud on a petition would sign an utterly

useless name of a Democratic voter on a Republican petition. (T. 333, lines 7-11.)

Arnaldo Garcia’s registration card was signed in 1992, 20 years ago. (T.

333, Lines 16-19). Sonya Gelikman was 87 years old (T. 334, Line 4), while Boris

Gelikman was 89 years old (T. 336, Lines 14-16). He did not know the ages of

either of those signers while testifying, but he stated he always considers age in his

examination. (T. 334, Lines 7-13). With regard to the Gelikman signatures, Mr.

Luber reversed himself as to which signatures were “smooth and fluent” as

opposed to signatures that were sloppily written in comparing the registration cards

to the petition sheets. (T. 334, Line 16 through T. 335, Line 18.)

22

In every case of a challenged signature, Mr. Luber did not know who put the

names of the signer. Mr. Luber did not know whether the people that signed the

Petition identified themselves as the voters in the household (T. 337, lines 5-14).

He did not know what was said when the Petition sheets were signed (T. 337, lines

15-17). As the court acknowledged at T. 337, Line 19: “He was not there. He

wouldn’t know. He couldn’t know.” He never spoke to any of the signers. (T.

338, Lines 1-3).

E. The testimony of Anatoliy Smolyanskiy completely destroyed the

expert’s credibility.

Anatoliy Smolyanskiy, 78 years old,7 testified that there came a time when

he actually met David Storobin and that he signed a petition on behalf of David

Storobin (T. 383, Lines 1-6). Mr. Smolyanskiy identified David Storobin as the

person within the Courtroom that had collected his signature, and at the time that

he collected the signature, David Storobin was with another person. (T. 383, Lines

7-16). Mr. Smolyanskiy identified his signature on the Petition. (T. 383, line 22).

Mr. Smolyanskiy also testified that he sometimes signs his last name before his

first name. (T. 384, Lines 9-25 and T. 385, lines 1-3), as he did on the petition

sheet.

7 Your Affirmant mistakenly stated said witness’s name being 83 years of age in cross-

examination, which was also mistakenly confirmed by Mr. Luber.

23

Mr. Smolyanskiy also identified his signature on the buff card and once

again testified that sometimes he signs his signature a different way. (T. 385, Lines

11-23) He also testified that he signed his name a little differently four years ago

when he signed his buff card than the way he signed it on the Petition on July 6,

2012 (T. 387, Lines 15-19).

On Cross-Examination, he was asked to provide several different signatures

– including the way that he signed his voter registration card and the way he signed

his petition. Mr. Smolyanskiy provided signatures that were identical to both his

voter registration card and the way he signed the Petition – as was recognized by

the Attorney for the Petitioner during summation. It is respectfully submitted that

Respondent Storobin’s witness Anatoliy Smolyanskiy completely contradicted Mr.

Luber’s testimony by stating that his signature was in fact genuine and was

procured by Senator Storobin himself, and destroyed said witness’s credibility.

24

Argument

POINT I: THE TESTIMONY OF WITNESSES, RESPONDENT STOROBIN AND MICHAIL ISSAK, SUPPORTS THE COURT’S DECISION THAT NO FRAUD WAS COMMITTED WITH RESPECT TO THE COLLECTION OF THE ISSAK SIGNATURE AND THE PLACEMENT OF HILDA DANGER’S PRINTED NAME UNDERNEATH SAID SIGNATURE.

The Attorneys for the Petitioner virtually weave together a standard out of

whole cloth for a candidate collecting signatures for his petition that simply does

not exist. The fact is that State Senator Storobin has a constitutional right to

collect signatures for his designating petition, he has the same obligations to sign

truthfully on his witnesses statement, and he does not have any enhanced standard

for conducting investigations when there is a misunderstanding or where a signer

told him he was a registered voter, even though he was not.

On Page 24, paragraph 2 of the Petitioner-Appellant’s Brief, the blatantly

untrue and fraudulent claim is presented that

Even if his testimony were to be taken at face value, Respondent

Storobin admitted that his representation in a document that he knew

was the equivalent of an affidavit for all purposes, that Hilda Danger

had signed Sheet 30 in his presence, was made in reckless disregard of

the truth.

Of course, Respondent Storobin never stated anything of the sort. This

representation is a far more glaringly inaccurate one by an attorney than any

mistaken representation that Senator Storobin made in any manner on his

designating petition.

25

The Statement of Witness at the bottom of each page of the Storobin Petition

reads as follows:

I am a duly-qualified voter of the State of New York and am an

enrolled voter of the Republican Party. Each of the individuals whose

names are subscribed to this Petition containing ___ signatures

subscribed the same in my presence on the dates above indicated and

identified himself or herself to be the individual that signed this sheet.

I understand that this statement will be accepted for all purposes as the

equivalent of an affidavit, and if it contains a material false

statement, shall subject me to the same penalties as if I had been duly

sworn.

Indeed, Mr. Storobin did state that each one of the signatories signed in his

presence. Senator Storobin’s testimony is completely consistent with that of

Michail Issak in that he came to his door with a volunteer, spoke to Mr. Issak for

some period of time, Mr. Issak identified himself as a Republican voter, and

Senator Storobin gathered his signature. The signature was clearly collected in

Senator Storobin’s presence.

The Petitioner-Appellant hearkens back with fond reminiscence of the days

that a witness statement would be collected by an officer qualified to administer

oaths, prior to the passage of a 1954 law. Indeed, we should be thankful that the

days of Tammany Hall politicians hiring officers (constables, according to Mr.

Mandelkar in summation) are no longer here. Now, candidates without the money

required to do that sort of signature-gathering or lacking power to have such a

26

signatory collect signatures for a grassroots campaign is not a bar to running for

office.

The Petitioner-Appellant likens the signature on a designating petition to a

will or a deed evidencing a transaction or occurrence, stating that like the

attestation of a Will or deed, “the completion of a subscribing witness statement is

a substantive act, without the completion of which, a Will would not be accepted

for filing (citing E.P.T.L. §3.2-1(a)(4); a deed will not be recorded (citing R.P.T.L

§ 304); and the signatures on a designating petition will not be considered valid

(citing Election Law § 6-132(2)).”

This case is greatly distinguishable from the case of Keppert v. Tullo, 88

A.D.3d 826, 27 (2d Dept. 2011), cited by petitioner in support of this position,

where the Appellate Division, Second Department directed the Suffolk County

Board of Elections to remove the petitioner’s name from the ballot because

petitioner lacked the required number of signatures. In the Keppert case, one sheet

of petitioner’s designating petition did not state the number of signatures witnessed

in the witness statement. The court held “where, as here, the witness statement of a

designating petition sheet does not state the number of signatures witnessed, all

signatures on the subject sheet are invalid.” Once the signature sheet was found

invalid the petitioner’s designating petition no longer contained the required

number of valid signatures. The court only invalidated the one signature sheet at

27

issue, and not the petition as a whole based on the failure to state the number of

signatures in the witness statement. The petition as a whole was invalidated

because the petitioner did not obtain the required number of signatures due to this

one sheet.

To focus on Mr. Issak’s signature alone for the moment, there are virtually

countless scenarios for why Mr. Issak appears as the only signature on the sheet at

issue – including that Senator Storobin witnessed other signatures earlier in the

day, stopped, and went back to a building where there were other registered voters.

He could have been out of sheets when he met with a witness to continue

petitioning later in the day. Such possibilities were in fact testified to by Senator

Storobin. There are also countless scenarios for why Senator Storobin gathered Mr.

Issak’s signature even though he did not appear on the “walk lists.”

Equally likely, Senator Storobin could have believed he was at Apartment

1F at 1576 Ocean Parkway – Hilda Danger’s apartment – at some point before,

during or after the signature was taken.8 The fact that he made a mistake when he

8 Petitioner-Appellant states, in its appellate brief, that “Respondent Storobin had testified that he

had gone specifically to the apartment of the single signer of Sheet 30 because the signer’s name

and address were listed on a walking list of enrolled Republican voters carried by Eugene.” He

adds: Since Mr. Isaak’s name was not on the walking list, that testimony was false.” But it is

actually the Petitioner-Appellant’s rendition of the testimony that is actually false. Specifically,

Senator Storobin stated, at Page 159, Lines 7-15 of the transcript:

Um, because I had, well, the person that I was, who was walking with, who had

the walking list, he had this apartment in this building and said we walk into this

28

later placed a printed name under the signed name of a person identifying himself

as being a member of the party is neither illegal, nor at all relevant in the context of

fraud allegations. Simply put, Senator Storobin, even as a candidate has the right

to make a mistake – as almost all petition-gatherers sometimes do.

While the Attorney for the Petitioner-Appellant argues to the court that

Respondent Storobin knew that Mr. Issak was not a citizen, it is simply contrary to

the testimony of both Senator Storobin and the signer and is not at all supported by

anything in the record. The witness to the signature, at the point that Mr. Issak

stated that he is a Republican, is not required to conduct an investigation. He need

not check for a green card; he need not go to the INS to verify information; he is

not required to scour through voluminous records prior to the submission of a

signature that does not appear on the registration books. After Mr. Issak stated that

he was a Republican, Senator Storobin was under no further obligation.

Rather, the fact that Michail Issak did sign Senator Storobin’s designating

petition – a fact completely confirmed when asked by Judge Martin to sign a paper

place and knock on the door. And then that's how I knew this was the place to

be… I followed the person with whom I was -- (answer interrupted).

His testimony then seems to indicate that he might have thought, incorrectly, that he was in Hilda

Danger’s building at the time the signature was gathered:

Actually, can I say at the time that I doubt it was the wrong building. At the time

that I doubt that, I thought it was. Because it turned out to have been the wrong

address written down [sic]. The new one that was written down [sic]. (T. 159,

lines 24-25, and T. 160, lines 1-2.)

29

at the end of his testimony that was completely identical to the signature on the

designating petition – is a clear indication that no fraud of any kind was committed

with respect to the fact that Mr. Issak truly signed in Senator Storobin’s presence.

It is equally the case that the witness to a signature is entitled to make

mistakes without a battery of high-priced attorneys engaging in wild speculation as

to a candidate’s “scienter” without any basis. Senator Storobin, while acting as a

witness is not held to a higher standard of other witnesses9 – rather, the Petitioner

must show by clear and convincing evidence that a knowing misrepresentation was

committed. The fact that Senator Storobin witnessed the signature late in the day

and that he filled in blank spaces when he returned to the headquarters is

something that makes sense, and again – remains uncontradicted in every respect.

It makes sense that he did not remember all voters he met during the course of the

day; it makes sense that he filled in missing portions of the petition sheet later,

after collection; it makes sense that the Senator can forget the voter he spoke to,

male or female, look at the signature, look at the apartment number, and then print

in the name of a voter and fix an address.

9 That is, a candidate committing fraud is clearly held to a different standard than regular

witnesses, but as a witness to signatures, he is simply one of several people witnessing the

signing of names for his campaign nomination and exercising his First Amendment right to

participate. He is no different than the several other novice signature-gatherers in the Storobin

campaign who in fact know very little about election law.

30

Nor is the court required to abandon common sense, as the Petitioner-

Appellant clearly suggests, in stating that the court should not consider what would

constitute completely unreasonable actions on the part of the Respondent – as a

sitting State Senator and attorney. Rather, his actions show that he is a novice in

collecting petition signatures, and far from a professional petition-gatherer or an

expert in the election law. He was not under any obligation to fix an address when

he thought it was wrong; he was not under an obligation to print in the name of the

petition-signer on any of the sheets. The fact that he did shows that he went

beyond any legal obligation in the attempt to be meticulous. 10

And the notion that

he would risk his State Senate seat, his entire petition and his legal career for the

small number of signatures that are being claimed as fraudulent by the Petitioner-

Appellant is simply and utterly absurd.

Furthermore, the Justice Martin stated the following in his decision:

“the court does not find that such conduct constitutes evidence of any

intentional fraud on his part (see Matter of Berney v. Ragusa, 76 AD3d 647

[2010], lv. denied 15 NY3d 704 [2010]; Matter of Harris v. Duran, 76 AD3d

658, 659 [2010]; Matter of Perez v. Galarza, 21 AD3d 508, 509 [2005], lv

denied 5 NY3d 706 [2005]; Matter of McHugh v. Comella, 307 AD2d 1069,

1070 [2003], lv denied 100 NY2d 509 [2003]; see also Matter of Bonner v.

10

The Petitioner-Appellant repeatedly parrots that the printed name of Hilda Danger was placed

underneath the signature of Mr. Isaak after he signed it. It is also unquestionably the case that

there was never any obligation for any witness to print in any names. But Senator Storobin,

according to his practice and procedure, printed in every name of every signer except for one –

the name of Edith Garcia – an enrolled Democrat that the Petitioner also claims was fraudulent.

But there is one, and only one reason that this name was never printed in by him – because she is

a registered Democrat, and he was unable to locate the name after she signed the Petition which

did not appear on the Republican voter lists.

31

Negron, 87 AD3d 737, 739-740 [2011]). ‘Any irregularity in this single

signature does not render the entire petition permeated with fraud’ (Matter of

Perez, 21 AD3d at 509; Matter of O’Donnell v. Ryan, 19 AD2d 781 [1963],

affd. 13 NY2d 885 [1963]).” (Order, page 10.)

In the case of In Re Bonner, 87 A.D.3d 737-38 [2d Dept 2011], the

Appellate Division, Second Department, reversed the order of the Supreme Court,

Suffolk County, and directed the Suffolk County Board of Elections to place the

appellant’s name on the ballot after the court below found that several signatures

collected by the candidate as a notary public were invalid and invalidated

appellant’s entire designating petition stating, holding “that his conduct with regard

to the signatures to which he attested in his capacity as a notary public constituted

fraud in the procurement of the signatures.” Id. at 738.

The Appellate Division found that while petitioner presented testimony that

appellant had witnessed six of the signatures on his designating petition as a notary

public without administering an oath, petitioner failed to establish that all of the

signatures obtained by appellant as a notary public were invalid. Furthermore, the

Appellate Division found that “even if all of the signatures to which [appellant]

attested in his capacity as a notary public were invalidated, there remain 575

signatures on the designating petition left unchallenged by the petitioned that

cannot be invalidated for failure to comply with Election Law § 6-132(3) and,

hence, more than the 500 required by the Election Law.” Id. at 739. Unlike here,

the Respondent knowingly failed to comply with the Election Law with his failure

32

to administer an oath, and unlike in this case, was not the result of one isolated

mistake. Nevertheless, it did not constitute knowing and intentional fraud by clear

and convincing evidence.

The Appellate Division found held:

“[a]lthough [appellant] may not have acted in strict compliance with

Election Law § 6-132(3) in collecting six of the signatures, ‘it has not been

established that he acted fraudulently or did anything that would warrant

invalidating the entire designating petition’…There has been no finding that

the subject six signatures were not authentic or that [appellant] failed

personally to witness the subscription of any of the signatures to which he

attested.” Id. at 739-740.

In McHugh v. Comella, 307 A.D.2d 1069, 70 [3d Dept 2003], the Appellate

Division, Third Department found that a proceeding to invalidate a designating

petition should have been dismissed by the Supreme Court because the respondent

could not have been said to be responsible for the fraud or irregularity found on the

designating petition in regard to a page which respondent signed as a subscribing

witness. In McHugh, the respondent was informed that she had neglected to sign as

a subscribing witness on one of her pages of her petition. Respondent was in a

meeting at the time that she received the petition page to sign, and testified that

“she looked at the acknowledgement and signed it but did not look at the page,

thinking it was one of the pages she had personally circulated.” It was, just as in

this case, the result of one mistake.

The Appellate Division stated:

33

“[w]hile Supreme Court characterized this as a ‘dubious excuse, at best,’ we

do not view such characterization as a rejection of respondent's testimony as

inherently incredible. The fraud which is alleged is the collection of forged

signatures and there is simply no evidence that she personally forged a

signature or had knowledge that anyone else had forged a signature. Under

the circumstances, we conclude ‘that in no way, by action or omission to act,

could the candidate be said to be responsible for the fraud and irregularity.'"

Id. at 1071.

In Matter Of Perez v. Galarza, 21 A.D.3d 508, 09 [2d Dept 2005], the

Appellate Division, Second Department affirmed the trial court’s decision denying

a petition to invalidate and dismissed the proceeding when only one witness out of

the nine that petitioner presented “testified that the subscribing witness was not

with the candidate when she signed the designating petition,” and there was no

evidence presented establishing that the candidate participated in or was

chargeable with knowledge of any fraud. “Any irregularity in this single signature

does not render the entire petition permeated with fraud.”

“[O]nly one of the signatures on the designating petition is vulnerable and

may be deemed to be invalid. The remaining signatures, however, are free

from all irregularity or claim of fraud, and are admittedly valid. The

irregularities incident to the one challenged signature are in no way

connected with the remaining signatures. Whatever wrongdoing there was,

permeated only the one signature, not the entire petition. Since the number

of remaining valid signatures is sufficient, the designating petition must be

held to be good.” Matter Of O'Donnell v. Ryan, 19 A.D.2d 781 [2d Dept

1963].

34

POINT II: THE COURT EXERCISED PROPER DISCRETION AND CORRECTLY FOUND THAT MR. LUBER’S TESTIMONY WAS ISSUFFICIENT TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT THE SIGNATURES AT ISSUE WERE FRADULENTLY OBTAINED BY RESPONDENT STOROBIN.

Despite the testimony of Anatoliy Smolyanskiy, which virtually decimated

the credibility of the Petitioner-Appellant’s purported expert, a forensic document

examiner, it is hypocritically argued by the Petitioner-Appellant that Mr. Luber’s

testimony was “uncontradicted” on four of the signatures. This would only be

correct if this court were to believe that the Respondent is required to have located

each one of the other four other petition signers to directly contradict the testimony

of the Petitioner-Appellant’s handwriting expert in Court.

Yet the notion that the Court did not specifically address the issue of

credibility of Mr. Luber, or that his credibility was not completely impeached by

cross-examination, is completely false.

The trial court, of course, has the right and the power to consider the

credibility of any interested witness, including an expert. The court, in fact, did

consider the credibility of the handwriting expert, and concluded that his testimony

was “unconvincing and questionable at best.” (Order Page 13) . The court further

held that the testimony that Respondent Storobin did actually witness each of the

signatures to which he attested was credible. The Petitioner-Appellant, in poking

fun at Mr. Storobin’s sometimes awkward explanations, having everything to do

35

with his Russian accent and the fact that he did not remember certain things that

occurred in the petitioning process, including the names of his petition-gatherers,

was something to be considered by the trial court. But the trial court, in

considering each of the Petitioner-Appellant’s frivolous theories in this case,

simply believed that these theories lacked any foundation while State Senator

Storobin’s explanations were ultimately credible.

The Court found that Anatoliy Smolyanskiy also credibly testified that he

specifically recalled Senator Storobin appearing at his residence and asking him to

sign the Petition. He identified the signature on the Petition as being his own,

stated that he signed his name in two different manners and demonstrated this to

the court by signing his name on a piece of lined paper several times in two

different ways. Ultimately, it was also admitted by the Attorney for the Petitioner-

Appellant, in summation, that the differing signatures of Mr. Smolyanskiy were

indeed his own and that petitioner-appellant’s handwriting expert was wrong. Mr.

Mandelker, the Attorney for the Petitioner, stated as follows:

I want to go to the five signatures that we challenged with Mr. Luber's

testimony and the one thing that we saw from the testimony of Mr.

Smolyanskiy is that the way he signed on the buff card and the way he

signed on the petition were two completely different ways which is why I

had him sign both ways on the exhibit, whatever exhibit, four for

identification, became when it came in. And much to my surprise, two very

disparate methods of signing were by the same person. (T. 410, lines 22-25

and T. 411, lines 1-6.)

36

Mr. Mandelker seems shocked and amazed to have learned, in this trial – for

the first time – that people sign their names differently over the course of years.

Yet completely ignored in the Petitioner-Appellant’s brief is the assuredness with

which Mr. Luber testified that the signature on the Petition was not the signature of

Mr. Smolyanskiy.

Moreover, the court correctly held that it is the Petitioner’s burden to

demonstrate by clear and convincing evidence that the four remaining signatures

were fraudulent. Even though there were some differences between the petition

sheets and the registration cards, the court held that the substantial time gaps

between the signature dates and the voter registration cards could explain these

differences. Specifically, the court discussed the age of the signatures on the voter

identification cards: the signature of Lyudmila Tretyakov was 19 years old; the

signature of Edith Garcia, a registered Democrat, was 28 years old; the signature of

Arnaldo Garcia was 20 years old; and the signature of Carina Tretyakov was 12

years old. (Order page 12).

In the case of In Re Volino, 87 A.D.3d 657, 58 [2d Dept 2011], the

Appellate Division, Second Department, affirmed the lower court’s decision

denying a petition to invalidate a candidate’s designating petition, holding that

“petitioners did not sustain their burden of establishing, prima facie, that the

signatures on the designating petition of [respondent] were permeated with

fraud or that [respondent] participated in or is chargeable with knowledge of

such fraud. Accordingly, there is no reason to disturb the Supreme Court’s

37

determination denying the petition to invalidate the designating petition and

dismissing the proceeding.”

Again, the absurdity of the argument that the Edith Garcia was fraudulently

placed on the petition should be considered: without the presence of her name on

the walking lists, the Respondent, either directly or through surrogates, would have

had to attain Democratic Party walk lists, find that she is a registered Democratic

voter, and fraudulently place the name of a signature that would not even be

counted on the petition sheet. Then, Senator Storobin would have to decide – apart

from his practice and procedure of printing every name on the Petition – to leave

the “printed name” portion blank on the Petition sheet, and leaving it to look

different from every single signature collected by the Respondent.

It simply cannot be stated with any real credibility that the Respondent must

decimate the credibility of the Petitioner-Appellant’s handwriting expert on each

and every aspect of his testimony and allegations, as was the case with Mr.

Anatoliy Smolyanksiy and as is true for Edith Garcia. In fact, the Petitioner-

Appellant, also, could have called any of the signers to the Petition to testify that

their actual signatures are not present – if only it were true. This was pointed out

during cross-examination of Mr. Luber, and was specifically addressed by Justice

Martin in the decision of the court in this matter at Page 11:

With respect to the four remaining fraud allegations, neither petitioner nor

respondent called the subject signatories to testify. However, it was

petitioner’s burden to demonstrate by clear and convincing evidence that

38

these signatures were fraudulent and the court finds that standing alone, Mr.

Luber’s testimony is insufficient to meet this heavy burden.

Additionally, no evidence was adduced in any manner whatsoever that if the

signatures were executed by someone other than the voter on the walk lists, that

Senator Storobin had any knowledge of this. As the court noted:

Even if it were established that these signature lines were executed by

someone other than the person identified in the petition, no evidence has

been introduced that Respondent Storobin was aware of this so as to charge

him with fraud. In this regard, the “court is mindful that those ‘who obtain

signatures to designating petitions are not the agents of the signers so as to

make those who are honest chargeable with knowledge that some of the

signatures are forged or fraudulent. (Order, page 12).

The trial court found that this case is easily distinguishable from many of the

cases in which a court removed a candidate from the ballot for candidate fraud.

In Drace v. Sayegh, 43 A.D.3d 481, 82 [2d Dept. 2007], the Appellate

Division affirmed the order of the Supreme Court removing appellant’s name from

the ballot. The appellant-candidate was a subscribing witness on approximately 30

of the 136 sheet designating petition. The court found that the petitioners made a

prima facie showing that appellant participated in procuring signatures for his

designating petition fraudulently because petitioners had introduced the testimony

of two witnesses that stated their signatures were either not genuine on the

designating petition or their signature was not procured by the appellant. “A

hearing court's assessment of credibility,” it was held, “is entitled to substantial

39

deference as it had the advantage of hearing and seeing the witnesses” (see Matter

of Morini v Scannapieco, 286 AD2d 459, 460 [2001]).

In contrast to Drace, petitioner-appellant produced no witnesses whose

signatures were placed on the designating petition. Petitioner-appellant only

provided a handwriting expert who was discredited by the testimony of Mr.

Smolyanskiy, who in turn demonstrated to the court that he did in fact sign the

designating petition and frequently signed his name in different ways.

In Matter of Tapper v. Sample, 54 A.D.3d 435 [2008], the court found

candidate fraud when testimony was presented showing that the appellant directed

subscribing witnesses to fill in information in the subscribing witness statements

for other witnesses, that the appellant signed subscribing witnesses statements for

petition sheets which she did not in fact witness, and that the appellant admitted

that she submitted nonconforming witness statements to the Board of Elections.

As the trial court stated in its opinion, “[s]uch circumstances are not present

herein.” (Order, page 14)

40

POINT III: THE COURT HELD THAT RESPONDENT STOROBIN’S TESTIMONY ON THE ISSUES BEFORE IT WAS CREDIBLE, AND EXERCISED SOUND DISCRETION IN DOING SO.

“A hearing court’s assessment of the credibility of witnesses is entitled to

substantial deference, as it had the advantage of hearing and seeing the witnesses.”

Matter of Morini v. Scannapieco, 286 A.D.2d 459 [2d. Dept. 2001].

At page 148 of the trial transcript, with regard to Mr. Issak’s signature,

Senator Storobin explains:

That person didn’t put down their name. Normally, if I didn’t see the name,

at some point I would fill in the name. In this case, it doesn’t look like

anything that you could actually respond [sic]. The, except for the fact that

the first letter looks like something of an H and then like scribble, you can’t

really see [sic]. So I want to see who it was. I saw that it was, that there’s a

person by the name of Hilda Danger, also starts with an H, who lives at, on

the same block where I went door to door. I looked her address, and I saw

that she lived at 1576 [sic]. And I figured that must be the person, because

she is in Apartment 1F, just as the address here wrote, it is Apartment 1F in

a building on the same block where I went. It looks like it begins with an H.

[T. 148, lines 14-25 and T. 149 lines, 1-3]

This testimony is completely uncontradicted.

The Attorney for the Petitioner-Appellant repeatedly refers with derision

toward Respondent Storobin’s forgetfulness and repeatedly reminds the court that

Senator Storobin is both an elected official and an attorney. The fact is, however,

that the trial court considered the quality of the witness and the credibility of all the

witnesses, and found Senator Storobin completely credible. Pointing to his human

foibles – whether it be forgetfulness or lacking knowledge about the petitioning

41

process – is part of the discretion that was within the power and discretion of the

trial court to consider.

As an initial matter, it is once again to be averred that the Senator can be

forgetful and that is not a crime, or the basis to knock him off the ballot. Being

forgetful about names or the petition process is not evidence of wrongdoing,

competence or any malfeasance whatsoever. It is simply a personal issue that some

people have to deal – which at many times is inappropriately made fun of as a

matter of course by the Petitioner-Appellant’s attorney, while attempting to argue

that Senator Storobin is not forgetful at all but rather straying from the truth.

The fact that Senator Storobin is forgetful is clear. He could not even

remember the name of his Campaign Manager who was sitting with him in the

courtroom, and he only remembered the name of two of his volunteers – one being

his mother. With regard to the petitioning process itself, it is also clear that he

knew very little about how petitions were created, or collected. For example, in

answer to the question as to who decided what forms of the petition he would

appear on, he stated:

I have no idea. I mean, we obviously, certain things like Doug Hiken [Dov

Hikind] and Joseph Hayon, they are in two different assembly districts, so

they can't appear in the same petition. Because these are two separate

neighborhoods. But as to who decided the exact details, I have no idea. (T.

84, lines 22-25 and T. 85, lines 1-4.)

42

There are also repeated references both by Respondent Storobin and his

petition coordinator, Joseph Kornbluh, to the fact that the Senator was kept

insulated from the process of collecting signatures and that he was not aware of

many of the rules for petitioning. So, as often as the Petitioner-Appellant wishes to

keep reiterating that Senator Storobin is both an elected official and an attorney, it

does not change the fact that he and his campaign workers were novices at the

petition process; that he spoke with an accent when he testified; that he actually

had trouble remembering the names of volunteers, places he had been to, and the

actual voters that signed his petition. This is further clarified when we consider the

fact that every signature line but one had a name printed below or near the actual

signature. This was something that Senator Storobin, as a novice candidate, and

his campaign workers, thought of as necessary. And, of course, the very signature

where no name was printed underneath – that belonging to Edith Garcia – could

not be acquired, as it did not appear on a Republican walk list. So here, again, we

must leap to the illogical conclusion that because the Petitioner-Appellant’s

handwriting expert stated this signature was fraudulent, fraudulently placing her

name on the petition was part of a great and grand scheme of fraud – even though

the signature never would have counted.

Equally credible is the explanation for why Senator Storobin crossed off the

original house number that appeared on the petition sheet signed by Michael Issak,

43

and that the signer was male. He may not have seen a great number of voters at

their door that day, but, as he stated, he saw many constituents during the course of

the day. In once again attacking the “scienter” of the Respondent, the Petitioner-

Appellant simply ignores the frenzied atmosphere of petition collection.

But again, the issue of the credibility of Respondent Storobin is simply an

issue within the sound discretion of the trial court. It is, of course, a fundamental

part of our court process to allow substantial deference to the sound discretion of

the trial courts on the issue of the credibility of witnesses. In election law matters

specifically, the courts have repeatedly held that a trial court’s assessment on the

credibility of witnesses should be entitled “substantial deference.” In Matter of

Morini v Scannapieco, 286 AD2d 459 (Second Dept., 2001), where the hearing

court held that signatures collected for an opportunity to ballot petition were

properly notarized and dismissed the proceeding, the Second Department held:

A hearing court's assessment of the credibility of witnesses is entitled to

substantial deference, as it had the advantage of hearing and seeing the

witnesses (citing McGuirk v. Mugs Pub, 250 A.D.2d 824; Islamic Ctr. of

Harrison v. Islamic Science Found., 262 A.D.2d 362) … We perceive no

reason to disturb its determination on appeal.

Similarly, in Matter of Volino et al., Appellants, v. Carlo, 87 A.D.3d 657 (2d

Dept., 2011) the Second Department upheld the determination that, in a petition to

invalidate, the Petitioner did not sustain its burden of proving, by clear and

convincing evidence, that the candidate had participated in fraud. “Accordingly,”

44

the court held, “there is no reason to disturb the Supreme Court's determination

denying the petition to invalidate the designating petition and dismissing the

proceeding.”

In Drace v. Sayegh, 43 A.D.3d 481 (2d Dept., 2007), the Second Department

actually upheld the determination of the trial court where a candidate had been

removed from the ballot for fraud, where the trial court credited the testimony of

two witnesses whose signatures appeared on the designating petition over what the

court considered to be the contradictory testimony of the candidate. Again, the

court held that the assessment of credibility by the court is entitled to substantial

deference (citing Matter of Morini v Scannapieco).

POINT IV: THE PETITIONER-APPELLANT COMPLETELY MISREPRESENTS THE USE OF A TEAM METHOD UTILIZED BY THE RESPONDENT IN GATHERING SIGNATURES.

The Petitioner-Appellant also completely misrepresents a standard for

attaching fraud to the candidate, where he met petition gatherers who were not all

designated to witness the Petition statement, as knowledge of a fraudulent scheme

to collect signatures – and thus, a product of candidate fraud. In discussing the

Hilda Danger signature, the Petitioner-Appellant discusses the following quotation

as the “grand slam” moment of this fraudulent scheme:

Q: So just to be clear, as you sit here today, your testimony is that when you

completed the subscribing witness statement on sheet 30, you had no

recollection that several hours earlier, a man had signed the only sheet you

witnessed as a single signature? Is that your testimony?

45

A: It wasn’t the only signature we got at that time. I was walking with other

volunteers that were getting different signatures. If they weren’t the ones

getting, so they were the ones witnessing. (T. 194, lines 6-19)

There is no extraordinary revelation in this testimony whatsoever. In fact,

the Petitioner-Appellant admits within its brief that petition-gatherers can meet in

groups, and collect petition signatures in groups. Citing Rodriguez v. Harris, 51

N.Y. 2d 737, it is noted that “while a ‘team’ method of gathering signatures is not

per se improper or irregular, those signing the petition must be in the presence of

the individual acting as the witness and the witness must actually see the person

signing the page.” Indeed, there is no evidence that this is not exactly what

occurred. The one “getting” the signature is, by definition, the person soliciting

the voter and asking for the signature of the person on the walking lists. The

person witnessing the signature is the registered voter who actually makes sure to

see the person sign the Petition. The fact is that when this “revelation” was made,

the Attorney for the Petitioner-Appellant did not elicit further testimony on cross-

examination, nor was there any argument on this topic or any further testimony

adduced from other signature-gatherers. It was only saved for summation, which

is the one and only time it was mentioned that anything inappropriate occurred in

meeting teams of volunteers.

Indeed, a person “getting” the signature can be another registered voter in

the district; he or she can be a resident from another state; he or she can be a

46

member of another party; he or she can be a non-citizen; he or she can be of an age

less than the minimum requirement for voting. It is a method of approaching

voters that may make people safer; it also can be a way of approaching voters in

their native languages to make them identify with a candidate. There is no

requirement of any kind that a person soliciting a signature be of any background

at all. It is only necessary, once again, that the witness see the person affixing his

signature when she is doing so.

POINT V: THE COURT CORRECTLY EXCLUDED EVIDENCE AND TESTIMONY OF ADDITIONAL SIGNATURES NOT PREVIOUSLY PARTICULARIZED IN THE PLEADINGS.

Very little time will be spent, in the context of these papers, discussing the

additional signatures within the report of forensic document examiner Jeffrey

Luber which were not allowed to be raised by the Petitioner-Appellant during the

hearing at issue. The additional signatures were neither included in the Petition to

Invalidate, the Amended Petition to Validate, the Petitioner-Appellant’s Bill of

Particulars or any other offer of proof. The court had found that the inclusion of

these additional fraud charges – which were provided merely two days prior to Mr.

Luber’s testimony within his report – to be insufficient and prejudicial. Indeed, it

cannot reasonably be argued that the additional fraud allegations within the Luber

report were alleged in any manner prior to the expiration of the statutory period, or

that the Respondent received proper notice of these allegations to sufficiently

47

defend against the supplementary charges. The Petitioner-Appellant had from the

filing of Respondent’s designating petition, the objections period and the time prior

to the filing of the Petition to Invalidate to conduct investigations and properly

apprise the Respondent of any fraud allegations. To now add witnesses and

numerous signatures without such notice, the court ruled, was improper –under

CPLR §3016(b) and the expeditious rules of the Special Election Part.

The Petitioner-Appellant raises completely inapplicable case law to support

the position that he may supplement his petition based merely on the basis of the

fact that the Respondent filed a Petition to Validate prior to the time that the

general objections filed with the Board of Elections were deemed invalid. Citing

Matter of Flowers v. Wells, 57 A.D.2d 536 (2d Dept. 1977), the Petitioner-

Appellant argues that by filing a Petition to Validate, the Respondent placed the

validity of every signature in his petition at issue. In Flowers, a petition for school

board member was invalidated under a provision of the Education Law that

provides that a valid elector may only sign one petition, where the subject petition

contained 42 signatures of people that had previously signed another petition. The

court determined: “the fact that the objections to the previously signed names was

not made before the board of elections did not preclude the objectors to raising it

before Special Term” in an election law proceeding brought by the candidate. This

is completely distinguishable from the facts of this case, where the Petitioner-

48

Appellant was required by CPLR 3016(b), the rules of the Special Election Part

and prevalent case law to provide sufficient detail of fraud allegations prior to the

expiration of the statutory period.

In fact, the Petitioner-Appellant raised the case of Matter of Belak v. Rossi,

96 A.D.2d 1011 (3d Dept. 1983) as support for the proposition that the filing of a

Petition to Invalidate had the effect of placing the entire petition before the court

with regard to this precise issue, where the court upheld a lower court

determination denying a litigant’s right to challenge signatures that had not been

previously raised. Discussing Flowers specifically, the court in Belak held that

“while Petitioner is correct in his contention that Special Term has jurisdiction to

hear objections to signatures other than those objected to before the Board of

Elections, fundamental notions of due process require that a candidate be given

some notice of which signatures on his petition are being challenged.” The court

further held, with respect to the case before the court:

“We find no error in Special Term/s decision denying the opportunity to

challenge any signatures not challenged before the Board of Elections since

a fair reading of the pleadings does not give notice that any other signatures

were being contested.”

As such, it should be clarified that the Petitioner-Appellant seeks cover

under a standard applying to line-by-line challenges; not fraud allegations which

again, must meet the requirements of CPLR 3016(b) and the Special Election Part

Rules.

49

Lastly, it appears that the Attorney for the Petitioner-Appellant has done a

complete about-face as it relates to the issue of permeation of fraud within the

Respondent’s designating petition by now arguing that the excluded testimony

regarding the signatures of two witnesses would create a permeation case (after

virtually abandoning the argument in summation). It is beyond question that

merely adding the anticipated testimony by the forensic document examiner

regarding two witnesses, who collected a handful of signatures cannot, as a matter

of law, invalidate the Respondent’s designating petition.

In In Re Volino, 87 A.D.3d 657, 58 [2d Dept. 2011], the Appellate Division,

Second Department, affirmed the Supreme Court’s decision denying a petition to

invalidate a designating petition, holding that

“petitioners did not sustain their burden of establishing, prima facie, that the

signatures on the designating petition of [respondent] were permeated with

fraud or that [respondent] participated in or is chargeable with knowledge of

such fraud. Accordingly, there is no reason to disturb the Supreme Court’s

determination denying the petition to invalidate the designating petition and

dismissing the proceeding… [W]here the irregularities in the petition are not

found by clear and convincing evidence to have been the result of fraud,

only the invalid signatures or improperly subscribed designating sheets

should be stricken.” Robinson v. Edwards, 54 A.D.3d 682, 83-84 [2d Dept

2008].

50

POINT VI: THIS MATTER SHOULD HAVE BEEN DISMISSED BY THE COURT PRIOR TO TRIAL FOR PETITIONER’S FAILURE TO STATE THE FRAUD ALLEGATIONS WITH SPECIFICITY.

Respondent Storobin moved to dismiss Petitioner’s fraud allegations on the

grounds that they were not pled with the requisite specificity within the statute of

limitations period. It is undisputed that under §16-102 of the Election Law, a

judicial proceeding with respect to a Designating Petition must be commenced

within 14 days after the last day for the filing of said petition. It is further

undisputed that the last day for filing a Petition to Invalidate a Designating Petition

was July 26, 2012. This final day to file election law challenges is widely accepted

by the courts as constituting an inviolable statute of limitations for the purpose of

serving legal documents apprising a candidate of specific violations of the Election

Law within a Petition to Invalidate, particularly as it relates to fraud allegations

against a candidate’s petition. This standard is derived from CPLR §3016 (b),

which provides:

Where a cause of action or defense is based upon misrepresentation, fraud,

mistake, willful default, breach of trust or undue influence, the

circumstances constituting the wrong shall be stated in detail.

It is respectfully submitted that the hearing court erred in finding that the

Petition to Invalidate, coupled with the service of a Bill of Particulars on July 26,

2012 (the last day for the institution of an Election Law proceeding) provided

sufficient notice with the fraud allegations made against the Respondent, Storobin.

51

Hence, this matter should have been dismissed by the hearing court prior to the

holding of a trial on fraud allegations, as the Petitioner failed to give Respondent

Storobin proper notice with the obligatory specificity within the required time

period under CPLR §3016(b).

In the case of O’Toole v. D’Apice, 112 A.D.2d 1078 (2d Dept. 1985), the

Second Department dismissed a Petition to Invalidate the Designating Petition

submitted for a candidate in Republican and Conservative Party elections, where

the Court found the Petitioner’s "blunderbuss charge" failed to set forth any facts

which would place the respondent candidate on notice of irregularities or errors in

the designating petition. A line of case law followed dismissing Petitions to

Invalidate on the basis of the failure to provide notice of fraud charges in the

initiating papers. See generally, Matter of Naples v. Swiatek, 286 A.D.2d 567

(Fourth Dept. 2001). In Matter of Waugh v. Nowicki, 10 A.D.3d 437 (2d Dept.

2004), the Second Department held that the Petitioner failed to plead fraud claims

within a Petition to Invalidate with the required specificity of CPLR §3016(b); and

that furthermore, the specifications of objections that the invalidating petition

“incorporated by reference” were insufficiently detailed to apprise the respondent

candidate of the allegations being made against his designating petition.

The incorporation by reference of certain fraud charges within a Petition to

Invalidate has served as the “saving grace” for the dismissal of fraud charges

52

within various proceedings brought under Article 16 of the Election Law – words

that are absent from the present Petition to Invalidate. The failure to include these

words constitutes a clearly fatal flaw. As such, the fraud allegations in the Petition

to Invalidate must be considered “blunderbuss” charges, and the matter should be

dismissed in its entirety.

In Matter of Oberle v. Caracappa, 133 A.D.2d 202 (2d Dept. 1987), the

Court held that it was reversible error to dismiss a Petition to Invalidate,

specifically where the pleadings and specifications “combined together possessed

the required specificity.” In Matter of Sasson v. Kavadas, 2009 N.Y. Misc. 2199

(Index #: 20318/09), Judge Satterfield, Queens County, reiterated the standard that

“it is beyond cavil that a claim of fraud [in an election matter] must be pled with

specificity.” However, in the latter case, it was held that the pleadings and

specification combined together possessed the “required specificity,” and were

sufficient "to apprise the candidate of the allegations being made against [his]

designating petition," citing Robinson v. Edwards, 54 A.D.3d 682 (2d Dept. 2008),

Hennessey v. DiCarlo, 21 A.D.3d 505 (2d Dept. 2005), Waugh v. Nowicki, 10

A.D.3d 437 (2d Dept. 2004), Oberle, 133 A.D.2d 202. This standard was upheld

by the Second Department on appeal. Matter of Sasson v. Kavadas, 65 A.D.3d 995

(2d Dept. 2008). In Matter of Santiago v. Westchester County Board of Elections,

8 Misc. 3d 1027A (Westchester County Supreme Court, 2005). In that case, Your

53

Affirmant’s Petition to Invalidate did not “incorporate by reference” the allegations

in the Specifications of Objections. “Where a pleading alleges a cause of action in

fraud,” Judge DeBella wrote, “greater particularity is required and in the fast-paced

world of Election Law proceedings the failure to provide sufficient detail of the

alleged fraud will result in dismissal unless those statements are coupled with the

incorporation by reference of proper specifications and objections” (citing O'Toole,

112 A.D.2d 1078; Naples, 286 A.D2d 567; Waugh, 10 A.D.3d 437; Oberle, 133

A.D.2d 202; and Matter of Mazza v. Bd. Of Elections of County of Albany, 196

A.D.2d 679 (3d Dept. 1993).

There is, of course, a reason that the Petitioner’s Specifications of

Objections were not incorporated by reference into the Petition to Invalidate – no

valid objections existed prior to the expiration of the Statute of Limitations, since

the New York City Board of Elections rejected them as a prima facie matter.

It is perhaps based on the fact that Kings County is, upon information and

belief, one of a handful of counties that has maintained a system for allowing the

filing of a Bill of Particulars on the return date of a Petition to Invalidate in an

Election Law matter that serves as the basis for the Petitioner’s belief that he can

further particularize his fraud claims after the final day to institute the proceeding

under §16-102 of the Election Law. This viewpoint was dealt a severe blow, in part

based on the outcome of a Brooklyn Election Law case, Matter of Robinson v.

54

Edwards, 54 A.D.3d 682 (2d Dept. 2008). The Second Department, reversing the

finding of Judge Schmidt, held that the subject Petition to Invalidate “failed to

plead the fraud claims with the requisite specificity” of CPLR §3016 (citing

Waugh, 10 A.D3d 437; Naples, 286 A.D.2d 567; and Matter of Wooten v Barron,

242 AD2d 351, 352 (2d Dept. 1997). A distinct and separate aspect of the decision

held that in addition, the Petitioners' bill of particulars was “insufficiently detailed

to apprise the candidate of the allegations being made against her Designating

Petition.”

It should be noted that the legal requirement for alleging fraud with

specificity is much more than a mere preference of the courts in election law

proceedings. It is clearly an issue of due process, as codified within CPLR §3106,

mandating that notice be provided where fraud is claimed in a civil proceeding –

again, prior to the expiration of the Statute of Limitations.

In Matter of Belak v. Rossi, 96 A.D.2d 1011 (3d Dept. 1983), the court

specifically held that “fundamental notions of due process require that a candidate

be given some notice of which signatures on his petition are being challenged.”

This is not a matter to be “liberally construed” to allow candidates to file frivolous

election law challenges and then utilize the device of a Bill of Particulars – a

device specifically formulated to amplify a party’s pleadings – as a means to go

forward. Rather, the standard has been repeatedly reiterated, by all the

55

departments (see generally, Naples, 286 A.D.2d 567; Belak, 96 A.D.2d 1011) –

resulting in the recent decision in Robinson v. Edwards, 54 A.D.3d 682. It is the

position of Your Affirmant that Robinson virtually deals the death blow to

frivolous election challenges, like this one, where the Respondent has not been

properly apprised of fraud allegations against him prior to the expiration of the

statutory period. The fraud claims, under CPLR §3016(b), simply cannot be

supplemented after this period has elapsed based on a blunderbuss petition –

particularly where the fraud claims have not been incorporated by reference in a

Petition to Invalidate.

CONCLUSION

Petitioner-Appellant in this case engages in the time-old tradition of

attacking his opponent through the election law process rather than at the ballot

box. It is not that Petitioner or his lawyers actually believe that they have “proven”

their case against Senator Storobin; or that they believe that he knowingly or

intentionally submitted a signature with someone else’s name printed underneath;

or that he did not collect five signatures that their handsomely-paid handwriting

expert said were fraudulently placed on the sheets by someone else. They filed

their proceeding and their Appeal, calling a candidate a fraud, to tie him up in court

and force him to spend thousands of dollars on legal fees because they can. They

know they can do this because, over time, the courts have allowed candidates just

56

like Mr. Felder to repeatedly file unsubstantiated blunderbuss fraud claims without

sanction.

Senator Storobin’s only “crime” was to win in a Special Election that he was

not supposed to win. The only fraud in this proceeding is the one being

perpetrated by the Petitioner-Appellant and his lawyers. It is about time that the

courts in this state start to tell candidates that they cannot do this – not only by

upholding the lower court decision in this case, but also striking down the frivolous

election law system that has grown up in distinct counties in New York State,

though a process of “supplementation” of pleadings through a bills of particulars

and other devices that are contrary to New York case law. In the alternative, it is

respectfully submitted that the Petitioner-Appellant be sanctioned for frivolous

motion practice and the filing of a frivolous appeal.

And it is respectfully submitted that this court should allow the petitioner-

appellant and the respondent to go forward in an election before the voters, allow

the issues of importance to oters to be settled at the ballot box, and utterly reject

the position that these matters should be settled before the courts, without elections

within an undemocratic and antiquated election law process.

WHEREFOR, for all of the foregoing reasons, the decision of the trial court

dismissing the Petition to Invalidate should be affirmed in all respects, the decision

to allow the Petitioner-Appellant to go forward with his fraud claims at trial should

57

be reversed, and costs and sanctions should be assessed against the Petitioner-

Appellant for filing a frivolous Appeal.

Dated: New York, New York

August 29, 2012

By: __________________________

Ezra B. Glaser, Esq.

CONDE & GLASER, LLP

Attorneys for Respondent-Respondent

DAVID STOROBIN

305 Broadway, Suite 801

New York, New York 10007

(212) 385-9300

CERTIFICATION OF COMPLIANCE

The within Brief in Opposition and in Support of the Cross-Appeal for

Respondent-Respondent, DAVID STOROBIN, was processed using

Microsoft Word, Times Roman typeface, 14-point type in regular text and 12-

point type in footnotes, and the number of words comprising the Brief, as

indicated by the word processing system, exclusive of Table of Contents,

Table of Authorities and Certificate of Compliance is: 13,696.

Dated: New York, New York

August 29, 2012

By: __________________________

Ezra B. Glaser, Esq.

CONDE & GLASER, LLP

Attorneys for Respondent-Respondent

DAVID STOROBIN

305 Broadway, Suite 801

New York, New York 10007

(212) 385-9300