STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

In the Matter of Diane Dwire,
Objector/Petitioner,
vs.

Joshua Riley and New York State Board of Elections,

Respondents,
Index No.:_____________

For a Judgment pursuant to Election Law §§6-132, 6-

and 134 invalidating the nomination of the Respondents
Joshua Riley as the candidate of the Democratic Party
for the public office of the United States House of
Representatives for the 22nd Congressional District of
New York in the General Election to be held on
November 8, 2022.

MEMORANDUM OF LAW IN SUPPORT OF

PETITIONER’S VERIFIED PETITION

COTE & VAN DYKE, LLP

Atorneys for Plaintiff
214 North State Street
Syracuse, New York 13203
Telephone: (315) 478-3074

JOSEPH S. COTE, III, ESQ.

of Counsel
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 PRELIMINARY STATEMENT

Petitioner, Diane Dwire, by and through her attorneys, submit this Memorandum of Law

in support of her Verified Petition, seeking, inter alia, an Order to Show Cause why this court

should not issue an Order directing BOE to invalidate the Designating Petition of Respondent

Candidate Joshua Riley to be a candidate of the Democratic Party for the public office of the

United States House of Representatives for the 22nd Congressional District of New York, and if

the BOE has made an administrative determination of validity prior to the conclusion of this

proceeding, overruling and setting aside the decision of the BOE and directing the BOE to

invalidate the Petition of Respondent Candidate Joshua Riley and directing the BOE to print

ballots for the June 28, 2022 Primary Election without the name of Joshua Riley appearing

thereon as a candidate for the United States House of Representatives for the 22nd Congressional

District of New York; An Order directing the BOE to produce to the Court on the return date of

this Verified Petition and Order to Show Cause, and all subsequent court dates, the original

Democratic Designating Petition of Respondent Candidate Joshua Riley, and all documents

constituting the records of proceeding by, of and before the BOE in relation to the petition of

Respondent Candidate Joshua Riley and the BOE’s action with respect thereto.

FACTUAL BACKGROUND

A statement of pertinent facts of this proceeding is set forth in the Verified Petition sworn

to by Diane Dwire, on April 19, 2022, with exhibits.

ARGUMENT

I. Respondent Candidate Riley’s Designating Petition is Permeated with Fraud

and Irregularities

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 “A candidate’s [entire] designating petition will be invalidated on the ground of fraud if

there is a showing that the entire petition is permeated with fraud” Matter of Felder v. Storobin,

100 A.D.3d 11, 15 (2nd Dept. 2012) In evaluating the legality during the process of obtaining the

law is well settled that:

In order for designating petitions to perform their lawful function,

it is essential that they be kept free from fraud. The Legislature
made definite the requirements with respect to them and any taint
of fraud would only serve to invalidate them. Persons signing
petition must do so in the presence of the subscribing witness who
must know them. The statute requires all subscribing witnesses to
swear ‘I know each of the voters whose names are subscribed to
the above sheet of the foregoing petition, and each of them
subscribed the same in my presence.’ In the eyes of the law, this
gives sanctity and credence to the petition. It must be construed
technically and strictly. Any deviation, omission or mistaken
allegation, however slight, will operate to invalidate the petition.
‘The principle of an honest authentication lies at the very
foundation of our electoral process. Persons who sign petitions
must do so in the presence of subscribing witness. The failure to
conform to this rule renders the petition invalid.’ Lebowitz v.
Barnes, 32 Misc. 2d 8, 9, 221 N.Y.S.2d 703, 705 (Sup. Ct. 1961)

In this instant matter, the evidence shows that Respondent Candidate’s Campaign

Manager Coby Eiss (“Campaign Manager”) and Respondent Candidate’s Campaign Field

Director Ryan Paolilli (“Field Director”), in acting as a subscribing witness under Election law

§6-132(2), and in violation thereof, did not personally witness and identify all of the signatures

to which they attested as a subscribing witness.

The affidavits establish the Campaign Manager Eiss and Field Director Paolilli had not

witnessed all the signatories signing the petition. (Exhibit C) As a result, those subscribing

witnesses are guilty of at least several acts of having committed Election Law fraud. That fraud

invalidates all the signatures on the designating petition sheets allegedly witnessed by Eiss and

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Paolilli, as they were the subscribing witnesses of approximately 1700 signatures on the Riley

designating petition. “[A] witness who swears falsely to a petition sheet, in the absence of

testimony by him, creates the danger of a declaration of invalidity as to all sheets subscribed by

him.” Bloom v Power, 21 Misc2d 885, 890(Kings 1959).

II. falsus in uno, falsus in omnibus 

In the case at bar thousands of signatures were filed with the Board of Elections so that

there was insufficient time for every signer to be interrogated on behalf of the objector to

ascertain if each had actually signed the petition in compliance with the statute or even to

interview every subscribing witness. In such circumstance, as a practicable matter the court may

weigh the credibility of the subscribing witnesses who were directly identified to determine

whether they had in fact witnessed all of the approximately 1700 signatures of their alleged

signers, thus this court may apply the principle of falsus in uno falsus in omnibus as was done

in Matter of Burns ( Sullivan) ( 199 Misc. 1005, affd. 278 App. Div. 102 3, affd. 303 N.Y. 601).

Fraud as to one is fraud to all, the principle of falsus in uno, falsus in omnibus applies to

invalidate all of the sheets of the subscribing witnesses who commit fraud. While the number of

remaining valid signature might nevertheless be numerically sufficient to list Riley on the ballot

the Courts have recognized that the “law allows a very limited time for checking of such petition

by opposing candidates. It follows, therefore, as a practical matter that the Court may weigh the

credibility of the subscribing witnesses [who solicited signatures] and where the Court finds

misrepresentations in multiple instances, as it finds here, and nothing is offered in rebuttal, it

may well indulge in the presumption that there were many other misrepresentations and

irregularities which time did not permit to be uncovered. Buchanan v. Espada, 230 A.D.2d 676,

677 (1st Dept. 1996) (citing Bloom v. Power, 21 Misc. 2d 855, 892 (Sup. Ct. 1959))

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 In this instant matter, a finding of fraud by the Respondent Candidate’s Campaign

Manager Eiss and Campaign Field Director Paolilli should lead the court to presume other

misrepresentations existed and should strike all those subscribed by the fraudulent actors to

sheets in the designating petition and judge the designating petition to be permeated with fraud.

Buchanan v. Espada, 230 AD2d 676, 677 (1st Dept. 1996) (“where the court finds

misrepresentations in numerous instances, as it finds here, and nothing is offered in rebuttal, it

may well indulge in the presumption that there were many other misrepresentations and

irregularities which time did not permit to be uncovered” citing Bloom v Power., 21 Misc. 2d

855, 893)

III. Candidate is Chargeable with Knowledge of Fraud and Irregularities

Even if this court were to find the candidate’s designating petition is not permeated with

fraud, the petition generally will be invalidated where the candidate has participated in or is

chargeable with knowledge of the fraud even if there is enough nonfraudulent signatures on the

remainder of the designating petition. Haygood v. Hardwick, 110 AD3d 711(2nd Dept. 2013) See

also Drace v. Sayegh, 43 AD3d 481(2nd Dept. 2007)

It has been found and emphasized by Buchanan that

It is not enough that the candidate simply profess ignorance

regarding both the identity of the persons responsible for amassing
the requisite signatures or the procedures employed to obtain them.
Even if this Court could accept Supreme Court’s finding “with
respect to the candidate’s noninvolvement in the permeating fraud
and irregularity”, it would nevertheless be “insufficient to
resuscitate this petition” (Matter of Proskin v. May, 40 N.Y.2d 829
(1976) The record on appeal simply does not support “a finding
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 830. The
most that can be said is that the candidate chose to ignore the fraud
and irregularity that permeated the petitioning process. Thus, the

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 Court concludes that the candidate “knew or had every reason to
know” that many of the signatures contained in his designating
petition were fraudulent. Bloom v. Power, 21 Misc. 2d 855, 893)

In this instant matter, there are ample evidence that both Respondent Candidate’s Campaign

Manager Eiss and Campaign Field Director Paolilli participated in the collection of signatures

that were not properly witnessed and thereafter caused the designating petition containing those

fraudulently witnesses signatures to be filed with the Board of Elections.

The Candidate’s Campaign Manager and Field Director together collected approximately

1700 signatures. The sheer number of signatures obtained by each these two campaign

representatives suggested they had not independently collected such a quantity of signatures

without the aid of others. This observation while dictated by common sense is not proof of fraud.

However, when efforts were made to interview alleged signatories of the designating petition the

suspicion of irregularity became proof of fraud.

Multiple individuals have signed affidavits that allege the Manager and Coordinator had

not actually witnessed the signatures being placed upon the petition. Under such circumstances

the entirety of the approximate 1700 signatures the two campaign representatives had collected

have been placed into doubt. Therefore, the circumstances compel the conclusion that the

designating petition is permeated with fraud. In the limited time available to investigate the

matter, the objector has demonstrated that several of the 1700 signatures on the petition were not

properly witnessed.  “It is well settled that, ‘where the court finds misrepresentations in

numerous instances, as it finds here, and nothing is [established] in rebuttal, it may well indulge

in the presumption that there were many other misrepresentations and irregularities which time

did not permit to be uncovered.’”  Saunders v. Mansouri, 194 AD3d 1490 (4th Dept. 2021) In

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Saunders, the Appellate Court reversed the decision of the lower court. The appellate court

found that indeed the acts of the subscribing witnesses were false and thus concluded “…the

designating petition is permeated with fraud and must be invalidated.” Saunders at 1492.

In addition, where a candidate's own knowledge or activities are at issue, candidates are

held to a higher standard under the Election Law than noncandidates. (See Flower v. D’Apice,

104 A.D.2d 578 (2nd Dept. 1984); see also Matter of Lavine v. Imbroto, 98 A.D.3d 620 (2nd Dept.

2012) In Flower, in addition to the fraudulent acts of the candidate, the trial court and appellate

court found that “fraud and irregularity so permeated the designating petition as a whole as to

call for its invalidation.” Flowers at 578.

It is not necessary to show that any specific number of instances of fraud or irregularity to

invalidate a designating petition. In Flowers the violations of the law regarding the collection of

signatures were committed by the candidate and two of his subscribing witnesses. In that case,

the witnesses failed to ask the signatories to identify themselves and were completed by someone

else. In that case a total of six allegedly improperly witnessed signatures have thus far been

uncovered. The Appellate Division and the Court of Appeals have agreed that such repeated

“fraudulent acts” and violations of law “warrant that [the candidate’s] name be stricken from the

ballot.” Flower at 578.

Here two of the several signatories to the designating petition testified by affidavit that

they signed the designating petition in their home with no witness present thus violating Election

Law of New York § 6-132. Several other signatories to the designating petition provided

affidavits confirming that although they signed the petition in the presence of a witness, however

the person who was actually present was not the person who signed as the witness on the

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petition. Therefore, there is no way of determining whether the person who actually witnessed

their signatures was even qualified to witness a designating petition.

IV. Candidate has Heightened Scrutiny Standard as a Lawyer

The candidate’s direct participation in the fraudulent activities is not necessary where the

allegedly fraudulent acts are ‘chargeable’ to the candidate. It has clearly been the case since

1959, when the Supreme Court, Kings County decided Bloom v. Power, 21 Misc.2d 885(Kings

Co. 1959), which held, in relevant part:

In the case at bar the candidate, a middle aged lawyer seeking high
judicial office, must be held to the highest degree of veracity.
These blank petition sheets were distributed by him personally to
relatives and friends. He was obligated to instruct them as to what
to do and what not to do. They were returned to him at his home or
his campaign headquarters where he was in constant attendance.
There, assisted by a small group of relatives and friends, he
scrutinized and processed these sheets. There he had opportunity to
check for forgeries, alterations, duplications, and irregularities, and
to strike them.

In this instant matter, Respondent Candidate Joshua Riley is likewise an experienced lawyer and

an experienced political operative, who is long employed as a staff member in the Senate of the

United States, and who reasonably could be expected have properly instructed his campaign

manager and campaign’s field director that when collecting signatures for the designating

petition, that they must, as a minimum, personally witness the placement of signatures by the

signatories of the designating petition.

Therefore, if a candidate's campaign’s representive is closely involved in obtaining the

fraudulent signatures, the candidate is charged with knowledge of the fraud.

The Supreme Court correctly determined that the testimony of

numerous witnesses at the hearing demonstrates many instances of

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 fraud in the obtaining of signatures for the designating petition.
We further agree with the Supreme Court that because the
candidate's campaign coordinator was closely involved in
obtaining the fraudulent signatures, the candidate should be
charged with knowledge of the fraud (see Matter of Buchanan v.
Espada,  88 N.Y.2d 973, 648 N.Y.S.2d 426, 671 N.E.2d
538). Accordingly, the Supreme Court properly invalidated
the petition.
Saitta v. Rivera, 264 A.D.2d 490, 491(2nd Dept. 1999)
Where there is evidence that the campaign’s paid staff is involved in the obtaining of

fraudulently witnessed signatures to the Designating Petition the fraud is chargeable to the

candidate despite any protestations made by the candidate that he personally did not obtain the

fraudulent signatures or have knowledge of the fraud. In short, the participation of the campaign

staff in the fraud is chargeable to the candidate. That is particularly true here where the

fraudulent actors have been paid and hold positions of authority as they represent the candidate.

CONCLUSION

For all of the foregoing reason, and for the reasons set forth in both the Verified Petition

of Diane Dwire, Petitioner requests relief, against the Respondents,

1. An Order directing BOE to invalidate the Designating Petition of Respondent Candidate

Joshua Riley to be a candidate of the Democratic Party for the public office of the United

States House of Representatives for the 22nd Congressional District of New York, and if

the BOE has made an administrative determination of validity prior to the conclusion of

this proceeding, overruling and setting aside the decision of the BOE and directing the

BOE to invalidate the Petition of Respondent Candidate Joshua Riley and directing the

BOE to print ballots for the June 28, 2022 Primary Election without the name of Joshua

Riley appearing thereon as a candidate for the United States House of Representatives for

the 22nd Congressional District of New York; and

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 2. An Order directing the BOE to produce to the Court on the return date of this Verified

Petition and Order to Show Cause, and all subsequent court dates, the original

Democratic Designating Petition of Respondent Candidate Joshua Riley, and all

documents constituting the records of proceeding by, of and before the BOE in relation to

the petition of Respondent Candidate Joshua Riley and the BOE’s action with respect

thereto; and

3. Granting such other, further and different relief as the Court may deem just and

appropriate, including costs and disbursements.

Dated: April 19, 2022

_____/s/ Joseph Cote____________

Joseph S. Cote, III, Esq.
Cote & Van Dyke, LLP
214 North State Street
Syracuse, New York 13203

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 CERTIFICATION PURSUANT TO RULE 202.8-b

Pursuant to Uniform Rules for the New York State Trial Courts Rule 202.8-b, Joseph S. Cote,

III, Esq. makes the following statement:

According to Microsoft Word’s word-count function, this document contains 2,610 words

excluding the parts of the documents exempted by 202.8-b(b).

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