In re Kachic

— Judgment unanimously affirmed, without costs. Memorandum: Special Term properly disallowed the proxy vote. The by-laws state the editor-in-chief shall be elected at each annual meeting by “the members present” and that “[n]o proxy votes may be counted.” Special Term was also correct in declaring Mr. Kachic the winner rather than ordering a new election. Section 618 of the Not-For-Profit Corporation Law provides that the Supreme Court may “confirm the election, order a new election, or take such other action as justice may require” (emphasis added). Prior to the amendment in 1969, the only remedy was to confirm the challenged election or order a new one (Matter of Faehndrich, 2 NY2d 468). By adding the phrase “[to] take such other action” the Legislature has given the courts power to determine the outcome of an election when appropriate and the votes may be calculated. Here, the 19 votes cast in person have already been fairly allotted and there is no claim of fraud or irregularity (see Matter of Robert Clarke, Inc., 186 App Div 216; 3 White, NY Corporations [13th ed], par 619.03 [3]). (Appeal from judgment of Supreme Court, Erie County, Bayger, J. — declaratory judgment.) Present — Hancock, Jr., J. P., Doerr, Green, O’Donnell and Moule, JJ.