Plunkett v. Mahoney

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.

The "opportunity to ballot” remedy fashioned in Matter of Hunting v Power ( 20 NY2d 680 ) should be used only in exceptional cases where the defects are technical in nature (Matter of Harden v Board of Elections, 74 NY2d 796 ). We disagree with the majority that the failure to file the certificate of authorization timely is a technical defect (see, Matter of Mundt v Lomenzo, 34 AD2d 1035 ; Byer, Election Law § 61 [1st ed]). (Appeal from order of Supreme Court, Erie County, Joslin, J.—Election Law.) Present—Callahan, J. P., Boomer, Balio, Davis and Lowery, JJ.