Opinion
Argued October 22, 2008.
Decided October 23, 2008.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered October 17, 2008. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, Orange County (Joseph G. Owen, J.), entered in a proceeding pursuant to Election Law § 16-102, which, after a hearing, in effect, had granted that branch of cross petitioner Robert A. Onofry's motion to dismiss the petition pursuant to CPLR 3211 (a) (7), dismissed the petition and granted that branch of the cross petition to declare Robert A. Onofry the rightfully nominated candidate of the Independence Party for the public office of Surrogate, County of Orange, in the primary election held on September 9, 2008, (2) granted that branch of the petition to set aside the results of the primary election, and to direct that a new primary election be held, (3) denied that branch of the cross petition to declare cross petitioner the rightfully nominated candidate, (4) denied that branch of the cross petitioner's motion to dismiss the petition and (5) directed the Orange County Board of Elections to hold a new primary election for that nomination. The following question was certified by the Appellate Division: "Was the decision and order of this Court properly made?"
In a primary election held on September 9, 2008, to nominate the candidate of the Independence Party for the public office of Surrogate, County of Orange, the voting machines in eight election districts where no members of the Independence Party signed in to vote recorded a total of seven votes for cross petitioner Robert A. Onofry and a total of two votes for petitioner Stephen R. Hunter. In seven other election districts where at least one member of the Independence Party did sign in to vote, there were 17 more votes recorded by the voting machines than Independence Party voter signatures. Including the irregular votes and three challenged absentee ballots, cross petitioner received 222 votes and petitioner received 213 votes.
Matter of Hunter v Orange County Bd. of Elections, 55 AD3d 760, reversed.
Vincent J. Messina, Jr., Central Islip, for appellant. Jonathan G. Jacobson, New Windsor, for Stephen R. Hunter, respondent.
David L. Darwin, County Attorney, Goshen ( Sharon Worthy-Spiegl of counsel), for Orange County Board of Elections, respondent.
John Ciampoli, Albany, for Orange County Interim County Organization of the New York State Independence Party and another, amici curiae.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COUBT
Order reversed, without costs, and matter remitted to Supreme Court, Orange County, with directions to dismiss the proceeding. Under the circumstances of this case, it would be impossible, if this Court were to entertain the merits, to render meaningful relief in compliance with the Election Law.