Henry v. Mahoney

Order unanimously affirmed, without costs. Memorandum: In a proceeding pursuant to section 16-102 of the Election Law to set aside a Conservative Party primary election held on September 11, 1984, petitioner appeals from an order denying his request for a new election. Respondent Pillich defeated petitioner by a margin of two votes, 167 — 165. It is conceded by the parties that three ineligible votes were cast. A new election will not be required on the “mere mathematical possibility that the results could have been changed” (Matter of Badillo v Santangelo, 15 AD2d 341, 342). The burden lies with the party attempting to impeach the results to show that the “irregularities are sufficiently large in number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes” (Matter of Ippolito v Power, 22 NY2d 594, 597-598). In the instant case, candidate Pillich’s majority would not be lost unless all three irregular votes had been cast in his favor. Under these facts and in the absence of fraud, a valid determination is not rendered impossible by the remote possibility of a changed result (Matter of De Martini v Power, 27 NY2d 149,151). (Appeal [1160] from order of Supreme Court, Erie County, Wolf, J. — Election Law, § 16-102.) Present — Callahan, J. P., Doerr, Denman, Boomer and Schnepp, JJ. (Decided Oct. 9, 1984.)