| Matter of Coviello v Knapp |
| 2012 NY Slip Op 00515 [91 AD3d 868] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Anthony Coviello, Appellant, v FrancesKnapp et al., Respondents. |
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In a proceeding pursuant to Election Law article 16, inter alia, to preserve for judicial reviewcertain ballots cast in a general election for the public office of Highway Superintendent of theTown of Beekman, and to contest the casting and canvassing or the refusal to cast those ballots,the petitioner Anthony Coviello appeals, as limited by his brief, from so much of a final order ofthe Supreme Court, Dutchess County (Pagones, J.), dated December 19, 2011, as denied thatbranch of the petition which was to prohibit the casting and canvassing of a certain absenteeballot designated as Exhibit 8, and denied that branch of the petition which was to direct thecasting and canvassing of an alleged abandoned ballot designated as Exhibit 1.
Ordered that the final order is modified, on the law, by deleting the provision thereof denyingthat branch of the petition which was to prohibit the casting and canvassing of the absentee ballotdesignated as Exhibit 8, and substituting therefor a provision granting that branch of the petitionand directing the Dutchess County Board of Elections not to cast and canvass the absentee ballotdesignated as Exhibit 8; as so modified, the final order is affirmed insofar as appealed from,without costs or disbursements.
The Supreme Court erred in determining that a certain absentee ballot designated as Exhibit8 should be cast and canvassed. The election was held on November 8, 2011. The ballotenvelope is postmarked "Philadelphia, PA," but it is undisputed that the date of the postmarkcannot be ascertained. On the back of the envelope, there is a "Statement of Voter" which issigned by the voter with the handwritten date of "11/9," one day after the election. The envelopeis stamped "Received" by the Board of Elections with the date November 14, 2011. Election Law§ 8-412 (1) states: "The board of elections shall cause all absentee ballots . . .contained in envelopes showing a cancellation mark of the United States postal service. . . with a date which is ascertained to be not later than the day before election andreceived by such board of elections not later than seven days following the day of election to becast and counted." Since the date of the postmark cannot be ascertained, and the receipt of theballot six days after the election did not establish that it had been timely mailed, the ballot maynot be cast and canvassed (see Matter of Nicolaysen v D'Apice, 100 AD2d 501, 502[1984]; see also Matter of Gross vAlbany County Bd. of Elections, 10 AD3d 476, 479 [2004], affd 3 NY3d 251[2004]; Matter of Carney v Davignon, 289 AD2d 1096, 1096 [2001]; Matter ofKroening, 187 AD2d 1045 [1992]).
In addition, under the circumstances of this case, the petitioner failed to establish that theballot designated as Exhibit 1, found approximately six days after the election in a ballot marking[*2]device at the warehouse of the Dutchess County Board ofElections, was an "abandoned ballot" left by a voter at the voting machine or system such that itshould be cast and canvassed pursuant to 9 NYCRR 6210.13 (A) (11). Accordingly, the SupremeCourt properly determined that the ballot designated as Exhibit 1 should not be cast andcanvassed. Skelos, J.P., Leventhal, Lott and Miller, JJ., concur.