2 No. 57
In the Matter of Larry Delgado,
Respondent,
v.
Carolee Sunderland, &c., et al.,
Respondents, Glen Hockley,
Appellant.
_________________________________________________________________
2002 NY Int. 25
March 14, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Adam T. Bradley, for appellant.
John Ciampoli, for respondent Delgado. PER CURIAM. In this dispute
over the November 6, 2001 general election for three seats on the City
of White Plains Common Council, petitioner Larry Delgado commenced
this Election Law article 16 proceeding by order to show cause
initially seeking the impoundment of all voting machines and ballots
used in the election, and a recount. After the recount, the
Westchester County Board of Elections determined that Glen Hockley was
the third place finisher, 47 votes ahead of Delgado. On November 15,
Delgado moved by order to show cause for new relief, pursuant to
Election Law § 16-106, seeking to be declared the winner or,
alternatively, a new election. He alleged that a voting machine in the
City's 18th Election District jammed, costing him scores of votes and
placing Hockley's election in doubt. Hockley moved to dismiss the
proceeding, arguing that a quo warranto action, through which the
Attorney General challenges an officeholder's title, was the sole
procedure for contesting the results, and that Supreme Court lacked
jurisdiction under the Election Law to look behind the canvass and
adjudicate Delgado's claim of machine error in a summary proceeding.
Supreme Court denied the motion to dismiss, sua sponte converted the
Election Law proceeding to a declaratory judgment action, and ordered
a new election in the 18th District only between Delgado and Hockley.
The court also rejected Hockley's argument that the proceeding should
be dismissed because Delgado was required, and failed, to purchase a
new index number and file the second order to show cause with
accompanying papers before serving them upon respondents. The
Appellate Division modified, directing a new City-wide election
between Hockley and Delgado. One Justice dissented on the issue of
filing and service. We now reverse. Any action Supreme Court takes
with respect to a general election challenge "must find authorization
SNIPPETS:
John Ciampoli, for respondent Delgado.
In this dispute over the November 6, 2001 general election for three seats on the City of
After the recount, the Westchester County Board of Elections determined that Glen Hockley was
On November 15, Delgado moved by order to show cause for new relief, pursuant to Election Law
He alleged that a voting machine in the City's 18th Election District jammed, costing him
Hockley moved to dismiss the proceeding, arguing that a quo warranto action, through which
Supreme Court denied the motion to dismiss, sua sponte converted the Election Law proceeding
Any action Supreme Court takes with respect to a general election challenge "must find
In a summary proceeding under Election Law article 16 respecting the conduct and results of a
2d 603; see Election Law § 16-106,, ).Supreme Court found, and it is not disputed, that a voting
In exercising this power, the Attorney General performs an investigative and screening
In Matter of Hogan, where a voting machine jammed resulting in a possible loss of hundreds of
Our cases do not support the conclusion of the courts below that a declaratory judgment
As noted above, this Court affirmed on the ground that Supreme Court lacked jurisdiction
Delgado and Supreme Court below relied on Matter of Felice v Berger (182 AD2d 795, lv denied,
In converting the proceeding, the Felice court, however, relied on dicta from Matter of
The only other authority that arguably supports the availability of a declaratory judgment
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