Plunkett v. Mahoney

164 A.D.2d 976

Opinions

Order modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The Erie County Board of Elections properly invalidated the designating petition because the certificate of authorization was untimely filed (see, Matter of Fotopoulos v Board of Elections, 45 NY2d 807; cf., Matter of Grieco v Bader, 43 Misc 2d 245, affd 21 AD2d 751). Supreme Court erred, therefore, in authorizing the Committee on Vacancies to designate a substitute candidate.

Since the defect which required the invalidation was technical in nature, an "opportunity to ballot” is an appropriate alternative remedy (Matter of Harden v Board of Elections, 74 NY2d 796). The record discloses no evidence of impropriety and there is a clear demonstration by the Democratic Party to have a candidate (Matter of Venezia v Albanese, 153 AD2d 723). Here the petition contained three times the number of signatures required and a certificate of authorization was filed. The "opportunity to ballot” would provide the enrolled electorate an opportunity to express their choice at the polls (Matter of Harden v Board of Elections, supra; Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614; Matter of Walker v Salerno, 89 AD2d 1031, affd 57 NY2d 739).

All concur, except Boomer and Lowery, JJ., who dissent in part, in the following memorandum.