Opinion
October 22, 1984
Appeal from the Supreme Court, Albany County (Hughes, J.).
These cross appeals involve four disputed absentee ballots cast at the primary election for the Conservative Party nomination for the office of County Judge of Albany County. Trial Term properly ruled that it did not have jurisdiction in these proceedings over three of the absentee ballots in issue which had already been opened and counted by the election inspectors at the local polling places without challenge or protest (see Election Law, § 8-506). As such, these absentee ballots were not "challenged ballots" within the jurisdiction of the Supreme Court pursuant to subdivision 1 of section 16-106 Elec. of the Election Law (see Sheils v Flynn, 275 N.Y. 446). This lack of jurisdiction is not affected by the fact that, due to one candidate having received all of the votes cast in the two election districts involved, it may be possible to remove the disputed votes from the final totals in the event of a successful challenge in this proceeding to the voters' qualifications.
Trial Term was also correct in its ruling regarding the remaining absentee ballot, which was challenged and remains unopened. The application for this absentee ballot was not made until the day of the primary election. Trial Term thus properly refused to open and count the ballot since the application was received by the Board of Elections later than the day before the election (see Election Law, § 8-400, subd 2, par [c]).
Judgment affirmed, without costs. Kane, J.P., Casey, Weiss, Yesawich, Jr., and Levine, JJ., concur.