Opinion
October 4, 1991
Appeal from the Supreme Court, Monroe County, Cornelius, J.
Present — Callahan, A.P.J., Denman, Green, Balio and Lawton, JJ. (Order entered Sept. 5, 1991.)
Order modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: The court has the discretion to order an "opportunity to ballot" as justice requires where a candidate's designation has been invalidated by a technical defect (Matter of Harden v. Board of Elections, 74 N.Y.2d 796; Matter of Hunting v. Power, 20 N.Y.2d 680). Here, petitioner challenged a candidate selected to fill a vacancy by the committee to fill vacancies because the same candidate had previously declined that position. This situation was not contemplated by section 6-148 Elec. of the Election Law. Thus, the court properly invalidated the designation of William D. Reilich as a candidate for the office of Monroe County Legislator for the Fifth District (see, Curtin v. Mahoney, 52 A.D.2d 716, 717; Matter of Nestler v Cohen, 242 App. Div. 726, appeal dismissed 265 N.Y. 576). Since this was not merely a technical defect, the court erred in providing an "opportunity to ballot" for that position (Matter of Plunkett v. Mahoney, 76 N.Y.2d 848; Matter of Harden v. Board of Elections, supra, at 797-798; Matter of Santoro v. Kujawa [appeal No. 2.], 133 A.D.2d 534, lv dismissed 70 N.Y.2d 724).
All concur, except Balio and Lawton, JJ., who dissent in part and vote to affirm for reasons stated in decision at Supreme Court, Cornelius, J.