Opinion
August 4, 1997
Appeal from the Supreme Court, Rockland County (Bergerman, J.),
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment declaring the appellant, Kenneth R. Ingenito, the candidate of the Conservative Party for the Office of County Legislator, District No. 1, Town of Stony Point, Rockland County.
Under the particular circumstances of this case, we conclude that the appellant could not have commenced a valid proceeding challenging the opportunity to ballot petition within the 14-day period set forth in Election Law § 16-102 (2). Furthermore, since the appellant subsequently received the nomination of the Conservative Party for the Office of County Legislator, District No. 1, Town of Stony Point, Rockland County, he could not have commenced a valid proceeding to challenge the results of the primary election within 10 days of that election pursuant to Election Law § 16-102 (2).
On September 19, 1997, the petitioner timely commenced this proceeding to challenge the results of the primary. Since the appellant timely served his answer in this proceeding, the merits of the petitioner's claims must be determined. As the Supreme Court properly found, absent a Wilson-Pakula authorization, the opportunity to ballot procedure is not available to the petitioner under the circumstances of this case ( see, Matter of Plunkett v. Mahoney, 76 N.Y.2d 848; Matter of Harden v. Board of Elections, 74 N.Y.2d 796, 797; Matter of Longo v. Loeffler, 242 A.D.2d 348). Accordingly, the petitioner's candidacy was invalid and a judgment should be entered declaring the appellant, Kenneth R. Ingenito, the candidate of the Conservative Party for the Office of County Legislator, District No. 1, Town of Stony Point, Rockland County.
Thompson, J.P., Pizzuto, Santucci and Joy, JJ., concur.