Plunkett v. Mahoney (164 A.D.2d 976, 1990)

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 NY2d 807; cf., Matter of Grieco v Bader, 43 Misc 2d 245, affd 21 AD2d 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 NY2d 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 AD2d 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 NY2d 614; Matter of Walker v Salerno, 89 AD2d 1031, affd 57 NY2d 739).

All concur, except Boomer and Lowery, JJ., who dissent in part, in the following memorandum.

Boomer and Lowery, JJ. (dissenting).

The "opportunity to ballot” remedy fashioned in Matter of Hunting v Power (20 NY2d 680) should be used only in exceptional cases where the defects are technical in nature (Matter of Harden v Board of Elections, 74 NY2d 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 AD2d 1035; Byer, Election Law § 61 [1st ed]). (Appeal from order of Supreme Court, Erie County, Joslin, J.—Election Law.) Present—Callahan, J. P., Boomer, Balio, Davis and Lowery, JJ.