The opinion
Matter of Kinowski v McCoy
2025 NY Slip Op 31503(U)
April 29, 2025
Supreme Court, Saratoga County
Docket Number: Index No. EF20251348
Judge: James E. Walsh
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INDEX NO. EF20251348
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/29/2025
SUPREM E COURT OF THE STATE OF NEW YORK
COUNTY OF SARATO GA
In the Matter of the Applicatio n of
EDWARD D. KINOWS KI, DECISIO N AND
ORDER
P etitioner- Candidate Aggrieved ,
-against- RJI # 45-1-2025 -0523
Index #EF20251 348
ROBERT McCOY,
Responde nt-Ca ndidate,
-and-
SARATOGA COU TY BOARD OF ELECTIO NS, by
JOSEPH SUHRAD A and CASSAND RA BAGRAM IAN
CONSTIT UTING COMMIS SIONERS ,
Responde nts,
For an Order Pursuant to Sections 16-100,
16-102(1), (2) and 16-116 of the Elections Law,
And CPLR Section 3001, Decla ring Invalid the
Republica n Party Designati ng Petitions Purportin g
To Nominate Robert McCoy as a Candidate for the
Public Office of Town of Stillwate r Town Superviso r,
In the State of New York, in the Primary Election to be
Held June 24, 2025, a nd to Restrain the said Saratoga
County Board of Elections from Printing a nd Placing the
Name Robert McCoy on the Republica n Party line on
Official Ballots of Such Primary and/or General Election.
Appeara nces:
Ada m Fusco, Esq.
Fusco Law Office
Attorneys for Petitioner -Aggrieve d Candida te Edwa rd D. Kinowski
P.O. Box 7114
Albany, New York 12224
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Joel E. Abelove, Esq.
Abelove Law, P .C.
Attorney s for Respond ent-Can didate Rober t McCoy
1702a Central Avenue
Albany, New York 12205
George P. Conway , Esq.
Saratog a County Attorne y
Attorney s for Respondent Saratog a County Board of Election s
40 McMast er Street
Ballston Spa, New York 12020
Walsh, J .
The instant matter is brought on by Petition and Order to Show Cause under
Article 16 of the NYS Election Law, filed on April 14, 2025, and ma de returnab le on
April 24, 2025. A hearing was conducte d by the Court on April 24, 2025 and the
parties were directed to file any post-hea ring submiss ions to the Court by April 28,
2025 at 9:00 a.m. , which both parties have done. Petitioner-Cand idate Aggriev ed
1
Kinowsk i (Petition er) submits that Respond ent-Can didate engaged in fraudule nt
conduct in collectin g signatur es for designa ting petition s and must be stricken from
the ballot. Resp ondent-C a ndidate objects and submits that a sufficien t number of
valid signatur es have been presente d to secure access to the ballot in the primary
election to be conduct ed on June 24, 2025.
The parties stipulated that 145 valid sign atures were required to secure access
to the position of Town Supervisor for the Town of Stillwat er (see Election Law §6-
136) and that Respond ent-Can didate witnesse d each nominat in g petition on the
1 Consistent with its position during the proceedings, Respondent Saratoga County Board of Elections provided the
s.
required evidence, but did not take a position on th e relief requested in post-hearing submission
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Republic an line that was submitt ed to constitu te his applicat ion to t he Saratog a
County Board of Election s. Each petition containe d a jurat for the subscrib ing
witness, which reads as follows:
I , _ _ _ _ _ _ _ _, state : I am a duly qualified vote of t he State of
New York and a m an enrolled voter of the Republi can Party . I now
reside at (residen ce address) _ _ _ __ _ _ . Each of the individu als
whose names are subscrib ed to this petition sheet containi ng, (FILL IN
NUMBE R) __ signatu res, subscrib ed the same in my presence on the
dates above indicate d and identifie d himself or h er self to be t he
individu al who signed this sheet. I underst and that this stateme nt will
be accepted for a ll purpose s as the equivale nt of a n affid avit a nd, if it
contains a materia l fa lse stateme nt , shall subject me to the sa me
pena lties as if I had bee n duly sworn. (See NYS Election Law Section 6-
132)
As a n aggrieve d candida te, Kinowsk i "was not required to file objection s and
specifica tions to t he petition prior to commen cing [t he invalida tion] proceedi ng."
Matter of Magee u. Camp, 253 AD2d 573 [3rd Dept. 1998].
On each petition , Responden t-Candi date filled in his name, a ddress and
number of signatu res con tained on t he petition , and signed his n ame. Petitioner
alleges that on at least two of the nominat ing petition s, a wife signed for her husband ,
outside the presence of the s ubscribi ng witness. Respond ent-Can didate testified a nd
acknowledged that on each occasion , t he challenged voters took his clipboar d
containi ng the petition s into t he house a nd re -emerge d with t he signatur es
purporti n g to be those of their respecti ve spouses. Respondent-Can didate testified
that he did not view this approac h to be incorrec t and that no fraud was intended.
The Court credits Respondent-Can didate's testimony as fort hrigh t and cr edible,
albeit misguid ed and in error.
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"A court will invalidate a designating petition where the challenge r
establishes, by clear and convincing evidence, 'that t he e ntire petition is permeated
with fraud or that the candidate part icipated in, or can be charged wit h knowledge
of, fraudulent activity.' Mattice v. Hammond, 131 AD3d 790 [3 rd Dept. 2015] , citing
Matter of VanSavage v. Jones, 120 AD3d 887, 888 [3 rd Dept. 2014]. F urt he r, "[w)here
a candidat e is involved in the fraud, the challen ger need not show that t he fra ud
permeated t he ent ire petition." Mattice at 790. In Mattice, the Third Departme nt
r uled that the candidate -subscribing witness signed t he witness attestation t hat he
personally witnessed each signature, when he did not, con stituted fraud a nd t h at,
regardless of the inte nt to deceive or defra ud, all of the candidate-witness' petitions
were required to be invalidated. In contrast, the Jones case involved a single inst ance
where a petition was passed around at a pizza shop , while the candidate-witness was
distracted talking to a nother patron. The Third Department in Jones found t h at t he
proof was lacking to show by clear and convincing evidence that the candidate-
witness knowingly accepted fraudulent signature s and did not "warrant invalidating
t he entire designating petition." Jones at 888.
Her e, th e fact pattern presented mirror s Mattice, wher e t he candidate-witness
permitted signatures to be applied to the pet ition outside of his prese nce and t he n
swor e th at he per sonally witnessed all such signatures. "[W]here a candidate's own
knowledge or activities are at issue, candidates are held to a higher standard under
the E lection Law than noncandidates. Absent permeation wit h fraud, a designating
petition may be invalidated where the candidate h as participated in or is ch ar geable
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wit h knowledge of the fraud." Matter of Felder v. Storobin, 100 Ad3d 11 [2 nd Dept.
2012], citing Matter of L avine v. I m broto , 98 AD3d 620 [2 nd Dept. 20 12] By clear and
convincing evide nce, Petitioner has shown t h at Respondent-Candidate engaged in
fraud, albeit, perhaps unintended, which requires that th e designating petitions for
McCoy for the public office of Town Supervisor of the Town of Stillwater as a
candidate for the Republican P arty be invalidated.
Accordingly, t he relief sought in Petitioner-Aggrieved Candidate Kinowski's
petition to invalidate the designating petitions of Respondent-Candidate McCoy is
granted and the Saratoga County Board of Elections shall be r estra ined from printing
and placing the na m e Robert McCoy on the Republican P arty line on a ny official
ballots of t he primary a nd/or general election for t he position of Supervisor for the
Town of Stillwater. This sh all constit ute the Decision a nd Or der of t he Court. No costs
are awarded to any party. The Court is hereby uploading the original Decision a nd
Order into t he NYSCEF system for filin g and entry by t he Coun ty Clerk. Petitioner 's
counsel is still responsible for serving notice of entry of t his Decision and Order in
accordance with the Local Protocols for Electronic Filing for Saratoga County.
Signed at Ballston Spa, New York
this 29th day of April, 2025
Papers reviewed and considered:
Verified Petition, filed on April 14, 2025, wit h Attorney Verification and Exhibit A
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Attorney Affirmation in support of Verified Petition of Adam M. Fusco, Esq., dated
April 14, 2025
Answer in a Special Proceeding on behalf of Respondent-Candidate, filed on April 23,
2025
Attorney Affirmation in s upport of Verified Petition of Adam M. Fusco, Esq., dated
April 23, 2025
Affidavit of Judit h Bussing, sworn to April 13, 2025
Affidavit of Nancy Ras ner , sworn to April 14, 2025
Proof adduced at hearing conducted on April 24, 2025
Post-Hearing Mem orandum on behalf of Respondent-Candidate McCoy of Joel E.
Abelove, Esq., filed on April 27, 2025
Letter/Correspondence to Judge in furth er support of Respondent-Candidate McCoy
of Joel E. Abelove, Esq., filed on April 28, 2025 with Exhibit
Post-Hearing Memorandum Affirmation on behalf of Petitioner-Aggrieved Candidate
Kinowski of Adam M. Fusco, Esq., filed on April 28, 2025
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