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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, Docket #: 2012-07521 County Clerks Index #: 700013/2012

for an Order, Pursuant to Article 16 of the Election Law Denying the Invalidity of a Designating Petition. -----------------------------------------------------------------: RESPONDENT-RESPONDENT DAVID STOROBINS 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

Table of Contents Preliminary Statement .................................................................................................................. 1 Questions Presented....................................................................................................................... 4 Statement of Facts .......................................................................................................................... 6 A. Introduction................................................................................................................................. 6 B. Senator Storobins testimony on the gathering of the signatures was completely credible...................................................................................................................... 12 C. The testimony of Michail Issak supported Senator Storobins explanation of how his signature was gathered, which remains uncontradicted in every respect
.............................................................................................................................................................. 15

D. The testimony of the Petitioners expert lacked credibility in all respects. .... 15 E. The testimony of Anatoliy Smolyanskiy completely destroyed the experts credibility. ........................................................................................................................................ 22 Argument ......................................................................................................................................... 24 Point I: THE TESTIMONY OF WITNESSES, RESPONDENT STOROBIN AND MICHAIL ISSAK, SUPPORTS THE COURTS DECISION THAT NO FRAUD WAS COMMITTED WITH RESPECT TO THE COLLECTION OF THE ISSAK SIGNATURE AND THE PLACEMENT OF HILDA DANGERS PRINTED NAME UNDERNEATH SAID SIGNATURE. ........................................ 24 Point II: THE COURT EXERCISED PROPER DISCRETION AND CORRECTLY FOUND THAT MR. LUBERS 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 STOROBINS TESTIMONY ON THE ISSUES BEFORE IT WAS CREDIBLE, AND EXERCISED SOUND DISCRETION IN DOING SO. ............................................... 40

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 PETITIONERS FAILURE TO STATE THE FRAUD ALLEGATIONS WITH SPECIFICITY. ......................................................... 50 CONCLUSION ............................................................................................................................. 55

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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 ODonnell v. Ryan, 19 A.D.2d 781 (2d Dept. 1963).........................................29, 32 OToole v. DArpice, 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
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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

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Preliminary Statement Respondent-Respondent David Storobin (hereinafter, Respondent

Storobin or Senator Storobin), a Russian migr, 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 Russianspeaking 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-Appellants Petition to Invalidate. This Brief is further

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

Order of Justice Larry D. Martin, dated August 10, 2012, denying Respondents 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 persons 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, Storobins testimony as to how the mistakes were made was credible and while the Petitioner-Appellants allegations of fraud were unsubstantiated. The trial court further determined that Petitioner-Appellant did not prove by clear and convincing evidence that Respondent Storobins designating petition was the

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 Petitioners motion to dismiss, dated August 10, 2012 - which could not be filed with the County Clerks office as a CrossAppeal. 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-Appellants Brief. 2

subject of candidate fraud or otherwise permeated with fraud, and found the testimony of Petitioner-Appellants handwriting to be unconvincing.

Questions Presented Question 1. Was the testimony of Respondent, Storobin, Michail Issak, and other witnesses sufficiently credible to support the Trial Courts determination that no fraud was committed with respect to the collection of the Michail Issak signature and the placement of Hilda Dangers 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-Appelants forensic document examiners 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. Lubers testimony was insufficient.

Question 3. Did the Court exercise sound discretion when it held that Respondent Storobins testimony on the issues before it, including the issue as to whether he

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 petitioners failure to state the fraud allegations with specificity? Answer 5. The Court below incorrectly decided no.

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
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After hearing oral argument on the exceptions, the court modified the referees report to reduce the number of valid signatures in respondents designating petition to 1,457 valid signatures. As modified, the referees report was confirmed.
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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 Respondents 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,
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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, PetitionerAppellant 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-Appellants 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
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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 Respondents 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.

Immediately thereafter, State Senator Storobin first went to the address of Hilda Dangers 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 Dangers 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 10

happened when Mr. Storobin took the signature, the alleged fraud was never proven by clear and convincing evidence. In fact, the Petitioner-Appellants 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-Appellants 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
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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 Storobins 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 Storobins 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

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. 12

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 socalled 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. Dangers address.

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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 Storobins testimony that he did in fact personally witness the subject signature. Despite Senator Storobins 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 thats listed there. We went to other apartments in the building on the same floor to see if theres 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
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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 Storobins 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 Petitioners expert lacked credibility in all respects. The hearing court specifically found that the testimony of Mr. Luber, the

Petitioners expert forensic document examiner, regarding the five alleged


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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 known6 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
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Hereinafter, Order. 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. 16

including Supreme Court, Surrogates 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 OBrien Murray, PetitionerAppellant Felders Campaign Manager, pointed him to the documents they wished
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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. Storobins 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.
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Mr. Luber admitted that a persons 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 persons 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 2425). 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
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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. Smolyankiys 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 dont 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
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that specific signature, and the reason he thought it was fraudulent. As will be pointed out further, Mr. Smolyanskiys 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 Garcias 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.)
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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 wouldnt know. He couldnt know. He never spoke to any of the signers. (T. 338, Lines 1-3).

E.

The testimony of Anatoliy Smolyanskiy completely destroyed the experts 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 witnesss name being 83 years of age in crossexamination, which was also mistakenly confirmed by Mr. Luber. 22

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 Storobins witness Anatoliy Smolyanskiy completely contradicted Mr. Lubers testimony by stating that his signature was in fact genuine and was procured by Senator Storobin himself, and destroyed said witnesss credibility.

23

Argument POINT I: THE TESTIMONY OF WITNESSES, RESPONDENT STOROBIN AND MICHAIL ISSAK, SUPPORTS THE COURTS DECISION THAT NO FRAUD WAS COMMITTED WITH RESPECT TO THE COLLECTION OF THE ISSAK SIGNATURE AND THE PLACEMENT OF HILDA DANGERS 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-Appellants 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.

24

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 Storobins 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 Storobins 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

25

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 petitioners name from the ballot because petitioner lacked the required number of signatures. In the Keppert case, one sheet of petitioners 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 petitioners designating petition no longer contained the required number of valid signatures. The court only invalidated the one signature sheet at
26

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. Issaks 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. Issaks 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 Dangers apartment at some point before, during or after the signature was taken.8 The fact that he made a mistake when he

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 signers name and address were listed on a walking list of enrolled Republican voters carried by Eugene. He adds: Since Mr. Isaaks name was not on the walking list, that testimony was false. But it is actually the Petitioner-Appellants 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 27

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 Storobins 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 Dangers 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.) 28

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 Storobins 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 candidates 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.

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. 29

Nor is the court required to abandon common sense, as the PetitionerAppellant 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 PetitionerAppellant 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. 30

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 ODonnell 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 appellants name on the ballot after the court below found that several signatures collected by the candidate as a notary public were invalid and invalidated appellants 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
31

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 petitionThere 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:
32

[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 courts 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].

33

POINT II: THE COURT EXERCISED PROPER DISCRETION AND CORRECTLY FOUND THAT MR. LUBERS 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-Appellants purported expert, a forensic document examiner, it is hypocritically argued by the Petitioner-Appellant that Mr. Lubers 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-Appellants 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. Storobins sometimes awkward explanations, having everything to do

34

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-Appellants frivolous theories in this case, simply believed that these theories lacked any foundation while State Senator Storobins 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 PetitionerAppellant, in summation, that the differing signatures of Mr. Smolyanskiy were indeed his own and that petitioner-appellants 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.)

35

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-Appellants 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 Petitioners 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 courts decision denying a petition to invalidate a candidates 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 Courts
36

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-Appellants 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 PetitionerAppellant, 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 petitioners burden to demonstrate by clear and convincing evidence that
37

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

38

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)

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POINT III: THE COURT HELD THAT RESPONDENT STOROBINS TESTIMONY ON THE ISSUES BEFORE IT WAS CREDIBLE, AND EXERCISED SOUND DISCRETION IN DOING SO. A hearing courts 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. Issaks signature, Senator Storobin explains: That person didnt put down their name. Normally, if I didnt see the name, at some point I would fill in the name. In this case, it doesnt 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 cant really see [sic]. So I want to see who it was. I saw that it was, that theres 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 Storobins 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
40

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-Appellants 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.)

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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-Appellants 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,
42

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 PetitionerAppellant 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 courts 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,
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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?
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A: It wasnt the only signature we got at that time. I was walking with other volunteers that were getting different signatures. If they werent 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 crossexamination, 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
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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-Appellants 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. Lubers 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

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defend against the supplementary charges. The Petitioner-Appellant had from the filing of Respondents 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 PetitionerAppellant 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 Petitioner47

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 litigants 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.
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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 Respondents 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 Respondents designating petition. In In Re Volino, 87 A.D.3d 657, 58 [2d Dept. 2011], the Appellate Division, Second Department, affirmed the Supreme Courts 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 Courts 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].

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POINT VI: THIS MATTER SHOULD HAVE BEEN DISMISSED BY THE COURT PRIOR TO TRIAL FOR PETITIONERS FAILURE TO STATE THE FRAUD ALLEGATIONS WITH SPECIFICITY. Respondent Storobin moved to dismiss Petitioners 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 candidates 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.
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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 OToole v. DApice, 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 Petitioners "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
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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
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Affirmants 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 Petitioners 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 Petitioners 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.
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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 partys pleadings as a means to go forward. Rather, the standard has been repeatedly reiterated, by all the
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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 elses 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
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like Mr. Felder to repeatedly file unsubstantiated blunderbuss fraud claims without sanction. Senator Storobins 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 petitionerappellant 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
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be reversed, and costs and sanctions should be assessed against the PetitionerAppellant 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

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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 12point 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

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