Lisa v. Board of Elections

• Decision Date: 22 October 1976
• Citation: 54 A.D.2d 746,387 N.Y.S.2d 876
• Parties: In the Matter of Joseph F. LISA, Respondent, v. BOARD OF ELECTIONS, etc., Respondents, and Ivan C. Lafayette, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 876

387 N.Y.S.2d 876

54 A.D.2d 746

In the Matter of Joseph F. LISA, Respondent, v. BOARD OF ELECTIONS, etc., Respondents and Ivan C. Lafayette, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 22, 1976.

Paul H. Asofsky and Gary A. Tomei, New York City, for appellant.

Sol R. Dunkin, New York City (Michael K. Feigenbaum, Lake Success, of counsel), for respondent.

MARTUSCELLO, Acting P.J., and LATHAM, MARGETT, DAMIANI and TITONE.

MEMORANDUM BY THE COURT.

In a proceeding to compel the respondent Board of Elections to hold a new primary election for the Democratic nomination for the public office of Member of the Assembly for the 34th Assembly District, the appeals is from a judgment of the Supreme Court, Queens County, entered October 20, 1976, which, Inter alia, granted the application and directed the Board of Elections to conduct a new Democratic Primary Election for the said office.

Judgment reversed, on the law and the facts, without costs or disbursements, application denied, and proceeding dismissed. The Board of Elections of the City of New York is hereby enjoined and restrained from certifying any person as the Democratic nominee for the public office of Member of the Assembly for the 34th Assembly District, County of Queens, State of New York, pending a final determination of the proceeding by the Court of Appeals.

Section 330 of the Election Law vests the Supreme Court with summary jurisdiction in election matters so as to combat the effect of fraud and to compel the conduct of fair primary elections. However in the exercise of that jurisdiction, the court possesses no inherent power and may, therefore, exercise only such power as the Legislature has conferred upon it (see Matter of Hogan v. Supreme Court, 281 N.Y. 572, 24 N.E.2d 472; Matter of Holley (Rittenberg), 268 N.Y. 484, 198 N.E. 232; Matter of Kane v. Republican County Committee of Town of Huntington, 17 A.D.2d 707, 230 N.Y.S.2d 761, affd. 12 N.Y.2d 658, 232 N.Y.S.2d 36, 185 N.E.2d 12).

It is undisputed that subdivision 2 of section 330 of the Election Law is the only statutory provision which is involved in the present proceeding. That subdivision provides, in part:

'(T)he court may direct * * * the holding of a new primary election where a * * * primary election has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was nominated or elected'.

It would appear from the wording of that provision that it was intended by the Legislature to deal exclusively with 'frauds or irregularities' in the actual voting process (see, e.g., Matter of Lowenstein v. Larkin, 40 A.D.2d 604, 335 N.Y.S.2d 799, affd. 31 N.Y.2d 654, 336 N.Y.S.2d 249, 288 N.E.2d 133), and that the existence of any fraud or misconduct in the campaign itself, or in the prevoting process, was not intended to be covered. This is particularly evident in view of the fact that the Legislature has sought to control some of the more pernicious aspects of unfair campaigning by the criminal sanctions imposed under article 16 of the Election Law (see, e.g., Election Law, § 458) and by the more recently enacted article 16--A thereof, which requires that a board of elections refer any matter in which it believes a violation warranting criminal sanctions...