Marchi v. Acito

Herlihy, J. (concurring).

I agree that the respondents’

conclusion that Vanasco v Schwartz (401 F Supp 87, affd 423 US 1041) was controlling is erroneous and there was no issue of constitutionality properly before the respondents.

However, there is no basis for not ordering an investigation as the respondents have failed to allege any other basis for a refusal to proceed on the complaint. The remittal should be with direction to proceed with the investigation required by section 3-106 of the Election Law and conduct a hearing if deemed necessary.

Kane, Main and Casey, JJ., concur with Sweeney, J. P.; Herlihy, J., concurs in a separate opinion.

Judgment reversed, on the law, without costs, and petition granted to the extent of remitting the matter to respondents for further proceedings not inconsistent herewith.