Gelb v. Board of Elections

748 N.E.2d 1069, 96 N.Y.2d 748, 725 N.Y.S.2d 273, 2001 N.Y. LEXIS 230

• Court: New York Court of Appeals
• Decided: February 20, 2001
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The certified question should not be answered in the circumstances of this case.

This Court previously accepted the following certified question from the United States Court of Appeals for the Second Circuit: “Is write-in voting available to an enrolled party voter in a contested primary election where no timely petition for opportunity to ballot has been filed?” (Gelb v Board of Elections, 224 F3d 149, 158; see also, Election Law § 6-164.)

Defendant Board of Elections of the City of New York and its named officials now concede that the certified question should be answered in the affirmative. In view of that concession, the question posed to us by the Second Circuit no longer presents this Court with a live controversy. Accordingly, in light of the change in legal position taken by defendants since the certification, and without passing on the legal correctness of that view, we conclude that it would be inappropriate for this Court to answer the question certified.

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and upon review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), certified question not answered, in a memorandum.