Opinion
August 23, 1990
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Callahan, J.P., Boomer, Balio, Davis and Lowery, JJ.
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 N.Y.2d 807; cf., Matter of Grieco v Bader, 43 Misc.2d 245, affd 21 A.D.2d 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 N.Y.2d 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 A.D.2d 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 N.Y.2d 614; Matter of Walker v Salerno, 89 A.D.2d 1031, affd 57 N.Y.2d 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 N.Y.2d 680) should be used only in exceptional cases where the defects are technical in nature (Matter of Harden v Board of Elections, 74 N.Y.2d 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 A.D.2d 1035; Byer, Election Law § 61 [1st ed]).