IN RE: Thomas R. DiBUONO et al.

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Supreme Court, Westchester County, New York.

IN RE: Thomas R. DiBUONO et al., as Candidates for the Public Office of Town Councilman of the Town of Harrison, et al., Petitioners, v. Carolee SUNDERLAND et al., as Commissioners Constituting the Westchester County Board of Elections, et al., Respondents.

Decided: December 29, 1997

Guy T. Parisi, White Plains, for petitioners. E.A. Dominianni and Ronald B. Bianchi, White Plains, for respondents.

Petitioners move for an order, pursuant to article 78 of the CPLR, i.e. CPLR 7803 subd. (1) invalidating and declaring null and void the general election held on November 4, 1997 in the Town of Harrison, Westchester County for the public offices of Town Clerk and Town Councilman and directing the respondent Board of Elections of the County of Westchester to conduct a new general election in the Town of Harrison for the public offices of Town Councilman and Town Clerk and directing the Westchester County Sheriff's Office to oversee all aspects of the voting process for such new general election and enjoining respondent public officers elect from taking the oath of office for the aforementioned public offices on January 1, 1998 or thereafter.

Upon the foregoing papers it is hereby ORDERED that the motion is denied and the petition is dismissed without costs.

 The instant article 78 proceeding arises out of the general election held in the Town of Harrison, N.Y. on November 4, 1997.   It is undisputed that:  1) a voting machine bearing serial number 125483 recorded 92 more votes for the Town Supervisor's race than it had recorded voters entering the voting booth;  and 2) a voting machine bearing serial number 135735 had recorded 107 more votes for the Town Supervisor's race than it had recorded voters entering the voting booth.   Based upon these undisputed facts alone, petitioners contend that this Court as a matter of law must invalidate the general election for the public offices of Town Clerk and Town Councilman and direct the Board of Elections to conduct a new general election for such offices.   The Court notes that neither petitioners nor respondents contest the result in the Town Supervisor race-the only race where so-called “spurious” votes were recorded.   The Court is not even being asked to set aside the Town Supervisor's race where the irregularity did occur, but rather the Town Clerk and Town Councilman races where there were no irregularities.   The Court further notes that upon argument of the instant motion petitioners and respondents stipulated that there were no factual questions and the only issue before the Court was one of law, i.e., whether the “spurious” votes in the Town Supervisor race invalidated the election for Town Councilman and Town Clerk.  (See also, Petitioners' Memorandum of Law, page 6.) This Court is of the opinion that where, as here, allegations of electoral fraud are made the matter must involve questions of fact.   However, because of the stipulation of the parties the Court will answer the question of law submitted to it.   It is well-settled that “in an election case, a proceeding pursuant to article 78 of the CPLR is the proper vehicle where there is no disputed fact question.”   (Matter of Filiberto v. Roosevelt Fire District, 75 A.D.2d 572, 573, 426 N.Y.S.2d 551 citing Matter of Mapes v. Swezey, 278 App.Div. 959, 105 N.Y.S.2d 489;  See also, Morris v. Cahill, 96 A.D.2d 88, 90-91, 469 N.Y.S.2d 231 citing Matter of Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422;  Matter of Cullum v. O'Mara, 43 A.D.2d 140, 350 N.Y.S.2d 162, affd. 33 N.Y.2d 357, 352 N.Y.S.2d 924, 308 N.E.2d 442;  and Matter of Brescia v. Mugridge, 52 Misc.2d 859, 276 N.Y.S.2d 947, affd. 29 A.D.2d 632, 285 N.Y.S.2d 569.)

It is uncontroverted that, as to the machines in question, the total votes cast for all candidates for Town Clerk and Town Councilman, in their respective races, did not exceed the total votes expected based upon the recorded number of voters.   Thus, there is no evidence of “spurious votes” in the races for Town Clerk and Town Councilman.   Nevertheless, despite a lack of any proof of “spurious votes” with respect to the election for Town Clerk and Town Councilman, petitioners assert that, as a matter of law, the existence of “spurious” votes in the Town Supervisor's race necessitates the invalidation of the election for Town Clerk and Town Councilman.   Petitioners have failed to provide a single case or statute to support its claim that the mere existence of “spurious” votes in one race must, as a matter of law, invalidate the election in other races.   Further, the Court in conducting its own research was unable to find a case or statute that supports petitioner's legal position.   Courts are reluctant to set aside a general election. As stated in Ginenthal v. D'Apice, 137 Misc.2d 849, 850, 522 N.Y.S.2d 431, “ ‘The right of suffrage is one of the most valuable and sacred rights which the Constitution has conferred upon the citizen of the state.’  (People ex rel. Stapleton v. Bell, 119 N.Y. 175, 178, 23 N.E. 533.)   It shall be given the highest respect, especially by our courts, and shall not be compromised, or allowed to be diminished.   It follows, therefore, that courts are without power to disenfranchise a single voter (Matter of Creedon, 264 N.Y. 40, 43, 189 N.E. 773), as well they should be, (sic) and where ‘voters did everything required of them by law and the ballots were cast by them in conformity with the law,․ any irregularity․ does not render them void’ ”.  (Matter of Mullen v. Heffernan, 193 Misc. 334, 338-339, 84 N.Y.S.2d 571, affd. 274 App.Div. 972, 85 N.Y.S.2d 301, affd. 298 N.Y. 785, 83 N.E.2d 473).  Accordingly, in answering the question of law presented, this Court holds that the mere existence of an irregularity in the Town Supervisor race is insufficient, as a matter of law, to invalidate the general election for the offices of Town Clerk and Town Councilman.

ORAZIO R. BELLANTONI, Justice.

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