Tonawanda News

August 11, 2012

Witryol suit is dismissed

The Tonawanda News

Tonawanda News — A state supreme court justice has dismissed a lawsuit that challenged the integrity of nominating petitions filed by Working Families Party candidate Timothy Moriarity in the race for the state senate’s 62nd District. 

In a ruling issued late Friday, State Supreme Court Justice Catherine Nugent Panepinto determined that the suit brought by Democratic candidate Amy Hope Witryol should not be allowed to advance because the petitioners failed to “complete service on all necessary parties within the time period set forth” under state election law. 

As a result of the decision, petitions filed by North Tonawanda resident Timothy Moriarity are now considered valid, earning him a spot on the Working Families Party line in the September primary for the senate seat. He will face Witryol, the Working Families Party’s endorsed candidate. 

“Although we are disappointed, we were treated fairly and we respect the court’s decision,” Witryol’s attorney, Frank Housh, said in a statement released Friday evening following the judge’s ruling. 

In her lawsuit, Witryol alleged that Moriarity’s petitions were “permeated with fraud” and represented “an attempt by the Republican Party to nominate a candidate whose candidacy would improve the chances of the Republican Party nominee, (state Sen. George Maziarz, R-Newfane) in the general election.” The suit specifically took aim at the makeup of the committee on vacancies listed on the petitions, arguing that the petitions suggested all four committee members were registered with the Working Families Party when in reality only two were actual members of the party. 

The judge dismissed the case on procedural grounds, agreeing with Moriarity’s attorney, John Ciampoli, and Maziarz’s counsel, Henry Wojtaszek, that Witryol’s verified petition was not served properly or in a timely manner. 

Housh filed the verified petition alleging the fraud at 4:16 p.m. on July 26, the last day that the petition of designation was subject to complaint. Ciampoli argued that there was not enough time for all respondents to be properly served and that the state board of elections was not served on time because it received notification of the lawsuit a day late.

Housh admitted that the New York State Board of Elections had not been properly served in that the agency did not receive the petition until July 27.

“The board of elections was served late,” Housh said. “That’s true.”

But he argued that because the petition had been filed on time that the case should be allowed to go forward, in part because the board of elections is not a relevant party in the case.

“If you order the board of elections to [throw out Moriarity’s petition of designation] it doesn’t matter whether they are a party to this or not,” Housh told Panepinto.

Ciampoli disputed Housh’s claim that the board of elections is not a relevant party.

“If you issue an order telling them what to do then they are still entitled to due process,” Ciampoli said.

But Housh, again, disagreed.

“The board of elections is not a necessary party because they are not aggrieved and they have no authority to rule on this case,” Housh said. “Only this court does.”

The attorneys also argued the merit of the case. Ciampoli and Wojtaszek suggested that it should also be dismissed because Housh had provided no evidence of the alleged fraud and that all allegations were based on information and belief, which cannot be used in fraud cases.

To prove fraud, Housh would have had to provide lists of specific signatures and affidavits with those people claiming that they had never signed and would never sign a petition for that particular candidate, Ciampoli said. He described the Witryol suit as a “fishing expedition.”

“Simply put the fraud hasn’t been sufficiently plead,” Ciampoli said. “It’s not specific and we don’t know what it is.”

Ciampoli said that while Witryol and Housh may believe the alleged fraud to be real and that it was part of some larger Republican conspiracy to manipulate the minor party line, they failed to provide sufficient proof in their pleadings.

“I would suggest that maybe they really believe it, but there was a point in my life when I believed in Santa Claus and I really believed it,” Ciampoli said. “Now, I know better.” 

Ciampoli and Wojtaszek characterized Witryol’s claim as a frivolous waste of the court’s time and requested sanctions for fees and costs associated with their clients having to answer to it.

“It is my belief that this petition attempts to improperly use this court,” Ciampoli said. 

“We were forced to spend resources for no reason whatsoever,” Wojtaszek added.

In her decision, Panepinto declined to award any damages for legal costs and fees.

Housh argued that the fraud was not that signatures were forged but rather that county Republicans, who also carried petitions for Maziarz, had carried the petitions for Moriarity in his Working Families Party designation.

“Clearly there is evidence of a Republican attempt to control a minor party line,” Housh said. “We will show that in the hearing.”

Reached for comment following the judge’s ruling Friday evening, Witryol said she felt that it was improper for Wojtaszek and Ciampoli to make arguments based on merit at a hearing that was scheduled to argue on procedural issues. 

“The merits of the case have not been heard,” Witryol said. “This gives them license to spin this in their favor.”

She said the case highlights weaknesses in the state’s election system, which she said incumbents legislate to their advantage.

“The four members of the committee to fill vacancies had one thing in common - local name recognition that the candidate himself did not have,” she said. “The fraud in the petitions would have been very clear to the court had we been able to move on to a hearing. The Maziarz legal team essentially suggested that if you fraudulently appoint committee members and print them atop a petition, there would be no fraud. That means they could circulate petitions naming Abraham Lincoln or Andrew Cuomo to their committee in order to mislead signers. That’s not sensible.”