Opinion
November 4, 1983
Appeal from the Erie Supreme Court, Kane, J.
Present — Hancock, Jr., J.P., Doerr, Boomer, Moule and Schnepp, JJ. (Order entered Oct. 18, 1983.)
Order unanimously affirmed, without costs. Memorandum: Petitioner, the Republican, Conservative and Liberal candidate, appeals from an order of Supreme Court, Erie County, dismissing his petition to enjoin the Erie County Board of Elections from conducting a drawing to determine ballot placement for the position of Associate Judge of the City Court of Buffalo. The court also vacated the temporary restraining order against the board and ordered, as soon as practicable, a drawing for ballot position to be held between the two Democratic candidates for the position. The board improperly allowed petitioner, a Republican candidate, to participate in the drawing for ballot position. Row A candidates are entitled to have their order on the ballot determined prior to the ordering of all other candidates (see Matter of Mintz v Cuomo, 45 N.Y.2d 918). Inasmuch as no objection was raised by the row A candidates to the court's order for a new drawing, we do not address this point. Contrary to petitioner's contention, he acquired no rights through operation of waiver or estoppel as a result of the unauthorized and improper drawing ( Matter of Gavigan v McCoy, 37 N.Y.2d 548, 552; Matter of McLaughlin v Berle, 71 A.D.2d 707, 708).