In the Matter of Ivory L. Payne, Jr., Appellant, v. Ronald H. Fleming et al., Respondents

In the Matter of Ivory L. Payne, Jr., Appellant, v Ronald H. Fleming et al., Respondents. [730 NYS2d 466] [MAJORITY] —Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed this special proceeding brought pursuant to Election Law § 16-102 without conducting an evidentiary hearing. Petitioner commenced the proceeding seeking to invalidate the designating petitions of Ronald H. Fleming (respondent), a candidate in the Democratic Party for the office of City Council member of the City of Buffalo, Fillmore District, on the ground that they were the product of fraud. Petitioner, respondent’s opponent in the upcoming Democratic primary, contends that 15 signatures in respondent’s designating petitions were invalid because those 15 individuals did not sign the petitions in respondent’s presence, and petitioner attached affidavits from those persons in support of that contention. Petitioner’s challenges to the signatures represent less than 1% of all signatures obtained by respondent, and thus petitioner failed to meet his burden of proving that respondent’s designating petitions were thereby permeated with fraud (see, Matter of Rodriguez v Harris, 51 NY2d 737; cf., Matter of Proskin v May, 40 NY2d 829; see generally, Matter of Aronson v Power, 22 NY2d 759, 760). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Election Law.) Present — Pigott, Jr., P. J., Green, Pine, Wisner and Lawton, JJ.