Smith v. Board of Elections

Appellate Division of the Supreme Court of New York

Smith v. Board of Elections

176 A.D.2d 841, 574 N.Y.S.2d 1016, 1991 N.Y. App. Div. LEXIS 13181

Appellate Division of the Supreme Court of the State of New York·Decided October 16, 1991·Published

Opinion

— In a proceeding, inter alia, to set aside the results of a primary election held on September 12, 1991, for the nomination of the Democratic Party for the public office of member of the New York City Council for the 31st Council District, the petitioner appeals from a judgment of the Supreme Court, Queens County (Graci, J.), dated October 9, 1991, which dismissed the petition.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, and a new primary election is ordered between the petitioner Malcolm A. Smith and the respondent Juanita E. Watkins.

We find that the petitioner has shown sufficient irregularities, both in number and nature, to establish the probability that the primary election would have turned out differently but for the irregularities (see, Matter of Ippolito v Power, 22 NY2d 594, 597-598; Matter of Fogarty v Wolf, 133 AD2d 794, 795; Matter of Nicolaysen v D’Apice, 100 AD2d 501, 502). There was also a defect in the procedure followed by the [842] Board of Elections to ensure that the absentee ballots were received in accordance with Election Law § 8-412 (see, Matter of Nicolaysen v D'Apice, supra). Mangano, P. J., Sullivan, Balletta and Miller, JJ., concur.

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— In a proceeding, inter alia, to set aside the results of a primary election held on September 12, 1991, for the nomination of the Democratic Party for the public office of member of the New York City Council for the 31st Council District, the petitioner appeals from a judgment of the Supreme Court, Queens County (Graci, J.), dated October 9, 1991, which dismissed the petition.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, and a new primary election is ordered between the petitioner Malcolm A. Smith and the respondent Juanita E. Watkins.

We find that the petitioner has shown sufficient irregularities, both in number and nature, to establish the probability that the primary election would have turned out differently but for the irregularities (see, Matter of Ippolito v Power, 22 NY2d 594, 597-598; Matter of Fogarty v Wolf, 133 AD2d 794, 795; Matter of Nicolaysen v D’Apice, 100 AD2d 501, 502). There was also a defect in the procedure followed by the [842] Board of Elections to ensure that the absentee ballots were received in accordance with Election Law § 8-412 (see, Matter of Nicolaysen v D'Apice, supra). Mangano, P. J., Sullivan, Balletta and Miller, JJ., concur.

Smith v. Board of Elections, 176 A.D.2d 841, 574 N.Y.S.2d 1016, 1991 N.Y. App. Div. LEXIS 13181 (N.Y. Ct. App. 1991).

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Opinion

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