Swanson v. Sunderland ( 1991 )

— In a proceeding to set aside the results of a primary election for the nomination of the Conservative Party for the public office of County Legislator in the Third County Legislative District in Westchester County held on September 12, 1991, and to direct that a new primary election be held, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), dated October 10, 1991, which, after a hearing, dismissed the proceeding and awarded costs and disbursements to the respondent Edward J. Brady.

Ordered that the judgment is modified, as a matter of discretion, by deleting therefrom the provision awarding costs and disbursements to the respondent Edward J. Brady, and substituting therefor a provision denying an award of costs and disbursements to any party; as so modified, the judgment is affirmed, without costs or disbursements.

We conclude that the Supreme Court properly dismissed the proceeding since the petitioner has failed to establish fraud, misconduct or tampering (see, Matter of Beatty v Owens, 57 NY2d 952). Moreover, the court correctly excluded from evidence the results of tests of the voting machines conducted subsequent to the election, since these tests failed to meet the standards set forth in Election Law § 9-208 (3).

The petitioner also failed to establish the probability, not the mere possibility, that the election result would be changed by a shift in, or invalidation of, the questioned votes (see, Matter of Ippolito v Power, 22 NY2d 594, 597-598; see also, Matter of Lisa v Board of Elections, 40 NY2d 911; Matter of Fogarty v Wolf, 133 AD2d 794, 795). Thus, the Supreme Court properly dismissed the proceeding.

However, in the exercise of our discretion, we modify the judgment by deleting the provision thereof which awarded costs and disbursements to the respondent Edward J. Brady, and substituting therefor a provision denying an award of costs and disbursements to any party. Bracken, J. P., Harwood, Eiber and O’Brien, JJ., concur.