Opinion
January 31, 1992
Appeal from the Supreme Court, Oneida County, Grow, J.
Present — Callahan, J.P., Green, Pine, Lawton and Davis, JJ. (Order entered Jan. 10, 1992.)
Order unanimously affirmed without costs. Memorandum: Supreme Court did not err in declaring a purported recanvass on November 22, 1991 null and void. The election took place on November 5, 1991, at which time 50 affidavit ballots were voted. Those ballots were returned, unopened, to the Board of Elections (Election Law § 9-104 [b]; §§ 9-124, 9-209). On November 7th, the Board of Elections conducted a recanvass at which time the election commissioners ratified a staff decision that the 50 affidavit ballots would not be opened or counted. On November 21st, the Board of Elections gave notice that on November 22nd it would review the affidavit ballots. At that time the affidavit ballots were opened and counted.
The actions taken on November 22nd cannot be regarded either as a timely canvass under Election Law § 9-209, which has a time limit of 10 days, or as a timely recanvass under Election Law § 9-208, which has a time limit of 15 days. The time limits set forth in the Election Law are clear and unambiguous and cannot be changed by the court (Matter of Pillion v. Lawley, 277 App. Div. 101 7).
Furthermore, the Board of Elections failed to provide the mandatory five days' notice of the November 22nd meeting (Election Law § 9-209 [b]). Without such notice the canvass was invalid (cf., Matter of Cregg v. Fisselbrand, 22 A.D.2d 342, 344-345, affd 15 N.Y.2d 748 [notice requirement in Election Law § 274 (1) (now § 9-208) mandatory]).