IN RE: Bernard Vaiselberg (2026)

Argued—September 25, 2026

DECISION & ORDER

W/

In a proceeding pursuant to Election Law § 16–102, inter alia, to set aside the results of a primary election held on June 23, 2026, for the nomination of the Republican Party as its candidate for the public office of State Senator for the 22nd Senatorial District and to direct that a new primary election be held for that nomination, the petitioner appeals from a final order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated August 5, 2026.  The final order, after a hearing, denied the petition and dismissed the proceeding.

ORDERED that the final order is affirmed, without costs or disbursements.

The petitioner commenced this proceeding pursuant to Election Law § 16–102, inter alia, to set aside the results of the primary election and to direct that a new primary election be held for the nomination of the Republican Party as its candidate for the public office of State Senator for the 22nd Senatorial District.  The petitioner asserted, among other things, that the respondent Board of Elections in the City of New York failed to retain reconciliation forms from 17 election districts, thus calling into question the validity of the approximately 144 ballots cast in those election districts.  After a hearing, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner appeals.

Pursuant to Election Law § 16–102(3), a court may direct the holding of a new primary election “where it finds there has been such fraud or irregularity as to render impossible a determination as to who rightfully was nominated or elected.”  Here, the Supreme Court properly determined that there were no irregularities with respect to the subject ballots (see Matter of Thompson v Board of Elections of County of Rockland, 287 A.D.2d 667, 667;  cf.  Matter of Komanoff v. Dodd, 114 A.D.2d 429, 430).  Thus, the petitioner failed to meet his burden of showing the existence of “irregularities” which “are sufficiently large in number to establish the probability” that the result of the election was affected (Matter of Ippolito v. Power, 22 N.Y.2d 594, 597;  see Election Law § 16–102[3];  Matter of Auerbach v Suffolk County Comm. of the Conservative Party, 171 AD3d 731, 736).  Accordingly, the court properly denied the petition and dismissed the proceeding.

The petitioner's remaining contentions are without merit.

CONNOLLY, J.P., BRATHWAITE NELSON, LOVE and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court