Matter of Stern v Garfinkle

2005 NYSlipOp 07727

October 19, 2005

Appellate Division, Second Department

In the Matter of Steven H. Stern, Appellant, v Robert L. Garfinkle et al., Respondents, and Frank Gargano, Respondent.

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In a proceeding pursuant to Election Law § 16-106, inter alia, to declare invalid certain absentee ballots cast in the primary election held on September 13, 2005, for the nomination of the Working Families Party as its candidate for the public office of Member of the Suffolk County Legislature, 16th Legislative District, the petitioner appeals from a final order of the Supreme Court, Suffolk County (Hudson, J.), dated October 5, 2005, which sustained Frank Gargano's objection in point of law and dismissed the petition.

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

The Supreme Court properly determined that it was without jurisdiction to hear the instant proceeding. Election Law § 16-106 gives the Supreme Court jurisdiction over "challenged" absentee ballots (see Matter of Dorman v Scaringe, 222 AD2d 887, 887-888 [1995]; Matter of Gates v Scaringe, 105 AD2d 543 [1984]). The petitioner failed to demonstrate that he challenged the absentee ballots at issue in accordance with the provisions of the Election Law (see Election Law §§ 8-502, 8-506; Matter of Gates v Scaringe, supra; see generally Matter of Cosgrove v Jensen, 252 AD2d 555 [1998]).

In view of the foregoing, we do not reach the parties' remaining contentions. H. Miller, J.P., Krausman, Rivera and Dillon, JJ., concur.