Doherty v. Mahoney

59 A.D.2d 824

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1977
• Docket: Appeal No. 2
• Status: Published

Opinion

Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: We agree with Special Term’s determination that there was showing of irregularities in sufficiently large "number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes” to warrant a new primary election (Matter of Ippolito v Power, 22 NY2d 594, 597, 598; Matter of Santucci v Power, 33 AD2d 517, affd 25 NY2d 897.) There is no authority, however, for the court’s direction that the new election for these three city-wide offices of councilman at large be limited to three council districts or to only two of the seven candidates (Santucci v Power, supra; Matter of Branagan v Todd, 19 AD2d 337, affd 13 NY2d 888; see Election Law, § 330, subd 2). Reliance on Matter of Daubner v Dinkins (33 NY2d 649) for such an order is misplaced (see Matter of Silver v Feuer, 35 NY2d 758, 760). Accordingly, the new election should include all seven candidates and be held city-wide. (Appeal from order of Erie Supreme Court —Election Law.) Present—Marsh, P. J., Moule, Dillon, Hancock and Goldman, JJ. (Decided Oct. 11, 1977.)