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4 No. 264 SSM 18
[97 NY Int. 0158]
Decided
MEMORANDUM:
The order of the Appellate Division should be reversed, without costs, the petition granted, the three write in ballots at issue declared invalid, and the matter remitted to SupremeCourt for further proceedings in accordance with this memorandum.
The courts below erred by validating the out of column write in ballots. Write in ballots for this primary election were to be written in column three. Here, all three contested ballots were written in column four, an otherwise blank and unused column. Accordingly, those ballots were not cast in their designated and appropriate place on the machine. Therefore, they are void and cannot be counted ( see, Matter of Haynie v Mahoney, 48 NY2d 718, 719; Election Law § 8 308[3]). As previously noted, the Election Law mandates this result "in clear and unequivocal terms" ( Haynie, supra, at 719). Thus, Daly v Jayne (233 AD2d 960) should not be followed.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.4 of the Rules, order reversed, without costs, petition granted, the three write-in ballots at issue declared invalid and the matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the memorandum herein. Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.
Decided