Judge throws out fraud case against him

by Carolyn James

Saying he was pleased that the legal case brought against him by his political opponent was thrown out of court, but disappointed that he did not have the opportunity to prove the "baseless and defamatory" allegations made against him, Republican Frank Gargano was moving ahead with his campaign this week, he added, and intended to win another victory—this time at the polls November 8.

The case was filed in September 12 by Gargano’s Democratic opponent, Steven Stern, who charged that Gargano "stuffed the ballot box," in the Working Families primary held September 13. He charged that Gargano gathered absentee ballots from party members who were ineligible to vote that way. In his court papers, Stern said he had spoken to an number of those voters and was told by them that they were, in fact, available to vote at the polls on primary day.

Among other things, Gargano maintained that the papers submitted to the court did not contain any affidavits from the voters Stern allegedly spoke to, and that the allegations were unsubstantiated, something Stern said he was prepared to do when the case came before the court.

The case did not get that far, however, when on Thursday, September 29, State Supreme Court Associate Justice James Hudson ruled that Stern’s papers were not adequately served.

"A person should not be able to make baseless allegations defaming my character, and then not be forced to prove them before a judge," said Gargano, the Republican, Conservative and Independence Party candidate in the 16th legislative district.

Gargano may still have the opportunity to do that as Stern’s attorney said last week that he was refiling the case, which the judge threw out on the basis of an error in the paperwork made by another judge.

"The judge neglected to put a date in a box (on the paperwork), so the case was thrown out on a technicality and has been refiled," said Stern’s attorney, Daniel Pagano of York Town Heights. "Election law is very unforgiving."

"The mode of service utilized by the petitioners was not in strict compliance with the order to show cause and .....is a jurisdictional defect," said Hudson in his decision September 29 throwing out the case.

"When you file papers, as an attorney you make sure every ‘T’ is crossed and ever ‘I’ is dotted," said Gargano. "This was obviously poor lawyering on his (Stern’s) part. He is looking to use delay tactics and do whatever he can to harass and annoy me, but my campaign is moving forward."

Not so, said Stern who added that he noticed the judge's failure to include the date in the order to show cause and immediately refiled the case.

Pagano said that his client is prepared to subpoena the individuals he spoke to in order to support his allegations in the next round of court hearings, scheduled for some time this week.

Gargano’s attorney, Vincent Messina of Melville said from an attorney’s point of view "a win is a win," and that the important thing is that in the end those who voted in the Working Families primary September 13, have "their vote count and their voices heard."