The following papers filed electronically were read and considered on the application by Petitioner brought by Order to Show Cause (Mot. Seq. #1) for an Order

(1) directing Respondent Orange County Board of Elections to preserve and provide to Petitioner's counsel each and every sign-in sheet used in the November 2025 general election for voters from Ward 4, districts 1 and 2 for the purpose of determining voter addresses, specifically including whether more voters claimed to be residents at any given same address than is possible and plausible, and whether each voter's signature matches the signature maintained and used by the Board of Elections to verify voter identity; and

(2) disallowing Respondent Orange County Board of Elections from counting the vote of any person who did not reside at the address given to the New York State Board of Elections for the purpose of securing an Absentee Ballot; and

(3) disallowing Respondent Orange County Board of Elections from counting any vote cast by a person in Ward 4, Districts 1 or 2 who cast his/her vote fraudulently, either by impersonating another voter, by falsifying his/her address in registering to vote, or in voting multiple times in different jurisdictions; and

(4) determining whether the alleged irregularities warrant a new election for County Legislature from District 5 or, alternatively, declaring Petitioner received the most non-fraudulent votes cast and should be seated as the legislator from District 5;

(5) awarding costs and fees against Respondents for contumacious and unlawful conduct:

Petitioner Stephanie Powell ("Petitioner"), the Democratic Party's candidate for County Legislature from District 5 in the November 4, 2025 General Election (the "General Election"), commenced this proceeding against Respondents Orange County Board of Elections ("BOE"), Michael L. Essig ("Essig"), and 172 individually named voters ("Respondent Voters") who allegedly voted by absentee ballot in the General Election.

Petitioner contends, in her sole cause of action, that fraud permeated the General Election and she seeks various forms of injunctive and declaratory relief based on the Court's jurisdiction afforded by Election law §16-106. She maintains on November 7, 2025, she attended the canvass conducted by Respondent BOE and interposed challenges to consideration of absentee ballots of Respondent Voters, the overwhelming majority of which were allegedly cast in favor of her opponent, Respondent Essig. She challenges the validity of the ballots cast by Respondent Voters due to alleged irregularities in the addresses claimed to be their domiciles.

The Petition specifically alleges all 172 Respondent Voters submitted applications for absentee ballots online through the NYS Board of Elections (NYSBOE) portal over a three-day period between October 21 — October 24, 2025, the last few days on which applications for absentee ballots could be submitted online, and all applications listed either 1233 Route 208 or 17 Sleepy Hollow Road, both in Monroe, New York, as the applicant's address. One of these properties, 1233 Route 208, is alleged to be a synagogue and the other property, 17 Sleepy Hollow Road, is a 3,000-square foot single family home. Petitioner argues the absentee ballots obtained as a result of these applications are invalid as it is not possible that the 64 Respondent Voters who claimed 1233 Route 208 as their address and the 103 Respondent Voters who claimed 17 Sleepy Hollow Road as their residence actually reside in either of those locations.

In support of her argument as to certain Respondent Voters' claimed residence at 1233 Route 208, Petitioner relies on real estate website descriptions of the property, photographs, and a Resolution of the Village Board of the Village of South Blooming Grove that approved an application for a special use permit to utilizes the premises as a house of worship. As to the property at 17 Sleepy Hollow Road, Petitioner also submits real estate website descriptions of the property and photographs that depict a single-family residence of less than 3,000 square feet.

Petitioner claims the exhibits demonstrate the nature of the structure situated on the two properties at which Respondent Voters claimed to reside on their applications for absentee ballots, and argues the ballots cast by Respondent Voters are invalid as they cannot possibly all reside at either of the listed addresses.

The Petition requests the Court [a] order Respondent BOE to preserve each and every sign in sheets used in the November 4, 2025 general election for voters from Ward 4, districts 1 [*2]and 2; [b] provide copies of same to Petitioner's counsel allowing for a determination of the addresses of those voting, whether more voters claimed to be residents at any given same address than is possible and plausible and whether each voter's signatures matches the signature maintained and used by Respondent BOE to verify the person voting is who he/she claims to be; [c] disallow Respondent BOE from counting the vote of any person who did not reside at the address given to the New York State Board of Elections for the purpose of securing an absentee ballot; [d] disallow Respondent BOE from counting any vote cast by a person in Ward 4, Districts 1 or 2 who cast his/her vote fraudulently, that is by impersonating another voter, by falsifying his/her address in registering to vote or in voting multiple times in different jurisdictions and [e] determine whether the alleged irregularities are severe enough to require a new election for County Legislature from District 5 or, alternatively, a declaration that Petitioner received the most non-fraudulent votes cast and should be seated as the legislator from District 5. The Petition also seeks an award of costs and fees against Respondents for contumacious and unlawful conduct.

Respondent Essig argues the Petition must be dismissed because the Court lacks authority to render a determination whether Respondent Voters were lawfully registered and eligible to vote. He argues pursuant to Election Law Article 16, the Supreme Court's only powers are (1) to determine the validity of protested, blank or void paper ballots and protested or rejected absentee ballots and to direct a recanvass or correction of any error in the canvass of such ballots and (2) to review the canvass and direct a recanvass or correction of an error or performance of any required duty by the board of canvassers. He further contends the New York State Legislature has, by its enactments, prohibited Courts from exercising authority to grant the relief Petitioner requests by its dictate that, in no event may a court order a ballot that has been counted to be uncounted. Respondent Essig maintains that, pursuant to Election Law §9-209, the Supreme Court is divested of jurisdiction since the current law, which was upheld by the Court of Appeals as constitutionally valid, requires a ballot envelope to be immediately burst and the ballot intermingled with all others for canvassing, effectively pre-determining validity of any of the various ballots which may be contested pursuant to Election Law §16-106. Respondent argues a quo warranto action by the office of the Attorney General is the only proper vehicle for challenging the results of an election and contesting title to the public office of the purported winner.

Next, Respondent argues Petitioner is not entitled to a preservation or impound order pursuant to Section 16-106 because she has failed to allege or show evidence of any procedural irregularities in the canvassing of ballots as mandated therein — specifically the requirement she demonstrate by clear and convincing evidence that, absent such relief, she will be irreparably harmed because of procedural irregularities or other facts arising during the election. Respondent additionally contends in any event impoundment is not possible since absentee ballots are intermingled once the envelopes are burst.

Respondent Essig also maintains the action must be dismissed for Petitioner's failure to effectuate proper service in that a page of the signed Order to Show Cause was allegedly missing from the papers that were served on Respondent. Respondent asserts this defect effectively failed to join the necessary parties, such that the proceeding is fatally defective.

Lastly, Respondent Essig opposes Petitioner's request for a new election, asserting a court may only direct a new election where it has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was elected and that here, there has been no proof of frauds or irregularities as to render impossible a determination as to who rightfully was elected because even if the contested ballots were removed from the count, the Respondent Essig would still be certified as the winner of the election by a wide margin.^[FN2]

Respondent BOE joins Respondent Essig in asking this Court to dismiss the Petition, contending the Court lacks statutory authority to discount or disregard the absentee ballots that have already been counted. As to the part of the Petition that seeks an order prohibiting BOE from counting the absentee ballots cast by Respondent Voters until and unless it is established at an evidentiary hearing that any of them are actually domiciled at these locations, BOE argues the right to judicial redress depends on powers afforded by legislative enactment, and absent such privilege, the Court has no power to act in the manner sought. BOE argues strict compliance with the Election Law is compelled, statutory interpretation is inflexible, and any action taken by a court in an election matter must find authorization and support in the express provisions of the Election Law statute.

As relevant herein, Respondent BOE argues the Legislature significantly limited objections and post-election judicial review of absentee ballots during canvassing in that Election Law §9-209(2) allows for limited examination of absentee ballots and enumerates exclusive criteria for determining the validity of a ballot, and improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon initial review under that section. Respondent BOE argues therefore, the Petition must be denied because consideration of whether an absentee voter was domiciled at the place claimed as their residence is also not one of the explicit grounds to deem an absentee ballot invalid pursuant to Election law §9-209(2).

Respondent BOE further argues Petitioner is not entitled to the requested declaratory relief and substitution as the Legislator for District 5 because, pursuant to Executive Law§63-b, only the New York Attorney General may commence a quo warranto proceeding to remove an official from public office, and the power to take such action may be used only after the alleged usurper has taken office.

Counsel for all parties ^[FN3] appeared for oral argument before the undersigned on November 24, 2025 relative to the Petition. In reply to the points raised by Respondents Essig and BOE in [*3]their submissions, Petitioner argued the Supreme Court has jurisdiction over allegations of certain serious irregularities in the conduct of a general election, including challenges to absentee ballots based on non-residency, pursuant to Election Law §8-506 which remains in full force and effect and is not impacted by the amendments to Section 9-202. Petitioner argued the legislative amendments to Section 9-209 relied on by Respondents did not overrule the section that authorized courts to consider challenges to absentee ballots based on non-residency.

Public confidence in our electoral system is the foundation of American democracy, and it must never be compromised. Shiroff v. New York State Bd. of Elections, 77 Misc 3d 773, 775—76, (Sup. Ct., NY County 2022). To ensure fair and orderly elections and promote public confidence, the New York State Legislature has designed and adopted a comprehensive statutory framework consisting of 17 articles governing the entire electoral process. Id. (citing Matter of Higby v. Mahoney, 48 NY2d 15, 21 [1979]). Under the Election Law, the power of the judiciary to intervene is intentionally limited and can only be called upon by candidates to preserve procedural integrity and "ensure the strict and uniform application of the election law." Id. (citing Election Law § 16-106 [4]; Matter of Gross v. Albany County Bd. of Elections, 3 NY3d 251, 258 [2004]). As such, courts are prohibited from altering the schedule or procedures for the canvassing of paper ballots pursuant Election Law §9-209, since those duties are the sole responsibility of the boards of elections and may not be abdicated, modified or usurped. (Election Law §§ 16-106 [4]; 9-200 [1]; Testa v. Ravitz, 84 NY2d 893, 895 [1994]). As aptly stated in Shiroff, the role of the Court is, therefore, very simple: to set forth the law as enacted, and make sure everyone follows it. Id.

Herein, the Petition and its supporting documents strongly suggest serious irregularities and potential fraud with the voter registrations of the Respondent Voters, where records appear to show 103 of the Respondent Voters claim to be domiciled at 17 Sleepy Hollow Road in Monroe and the other 64 claim as their domicile a house of worship located at 1233 Route 208 in Monroe. Despite this significant and glaring discrepancy of voter registration, Respondent BOE canvassed and cast all 167 of these absentee ballots. Petitioner seeks various forms of equitable relief related to these alleged improprieties.

As a preliminary matter, the Court rejects Respondent Essig's argument this Court lacks jurisdiction over this proceeding based upon Petitioner's failure to join a necessary party — identifying himself as a Respondent-Candidate. Citing Castracan v. Colavita, 173 AD2d 924, 925 (3d Dept. 1991), Essig argues Petitioner's apparent failure to join necessary parties renders the proceeding fatally defective. Respondent Essig's argument is premised on Petitioner's failure to properly serve the Order to Show Cause in that a page was allegedly missing from the document. The Court finds Respondent Essig's conclusory statement he was "deprived of proper notice" specious and notes he failed to introduce any evidence of lack of notice or other prejudice based upon this alleged omission of a page from the Order to Show Cause.

Petitioner argues the canvass by Respondent BOE requires review and scrutiny to determine the validity of the registrations of Respondent Voters. Petitioner argues the Court has jurisdiction over this controversy by virtue of Election Law §16-106, which provides courts with [*4]authority to review a board's decision to canvass or refuse to canvass a particular ballot during the canvass. See, Skartados v. Orange County Bd. of Elections, 81 AD3d 757, 758 (2d Dept. 2011) (citing Matter of Gross v. Albany County Bd. of Elections, 3 NY3d 251, 257 [2004]); see Matter of Johnson v. Martins, 79 AD3d 913, 919-920 (2d Dept. 2010) aff'd 15 NY3d 584 (2010).

Conversely, Respondents argue any action the Supreme Court takes with respect to a general election challenge must find authorization and support in the express provisions of the Election Law statute. Matter of Amedure v. State of New York, 232 AD3d 48, 56 (3d Dept. 2024), aff'd in part 43 NY3d 116 (2024) (citing Matter of Delgado v. Sunderland, 97 NY2d 420 [2002]); Matter of Mondello v. Nassau County Bd. of Elections, 6 AD3d 18, 21 (2d Dept. 2004); Jacobs v. Biamonte, 33 AD3d 777 (2d Dept. 2007). Although the Supreme Court enjoys "general original jurisdiction in law and equity" (NY Const, art VI, § 7 [a]), this statutory limitation on judicial review falls within the Legislature's constitutional authority over the process for canvassing paper ballots (see NY Const, art II, §§ 2, 7). Amedure, supra, 232 AD3d at 56. Thus, Respondents argue in a proceeding pursuant to Election Law § 16-106 for judicial review of the canvass of votes in a general election, the Supreme Court lacks the authority to render a determination as to whether a voter was lawfully registered and eligible to vote. Delgado, supra at 423; Skartados, supra at 758 (citing Mondello, supra, 6 AD3d at 20-21).

As Delgado and its progeny make clear, in a summary proceeding such as the instant Petition brought pursuant to Election Law Article 16, the Supreme Court's only powers are (1) to determine the validity of protested, blank or void paper ballots and protested or rejected absentee ballots and to direct a recanvass or correction of any error in the canvass of such ballots and (2) to review the canvass and direct a recanvass or correction of an error or performance of any required duty by the board of canvassers. 97 N.Y 2d at 423 (citing Matter of Corrigan v. Board of Elections of Suffolk County, 38 AD2d 825, 827 [2d. Dept. 1972], aff'd 30 NY2d 603 [1972]; see Election Law §16-106 [1], [2], [4]); Matter of Stewart v. Rockland County Bd. of Elections, 41 Misc 3d 1238[A] (Sup. Ct., Rockland Co. 2013) aff'd 112 AD3d 866 (2d Dept. 2013). Thus, it appears well settled that this Court lacks authority under the Election Law to render a determination as to whether a voter was lawfully registered and eligible to vote.

Respondents' position is primarily based on Election Law §9-209, entitled "Canvass of early mail, absentee, military and special ballots, and ballots cast in affidavit envelopes." Through this section, the New York State Legislature provides specific instruction for the process of reviewing and canvassing absentee, mail-in, and certain other ballots. See, Matter of Amedure v. State of New York, 43 NY3d 116, 121 (2024). The legislative history of Section 9-209 includes significant amendment in 2021, due to a notable increase in the number of absentee ballots requested and returned in the 2020 general election as a result of the COVID-19 pandemic, during which there were significant delays in reporting the results in many races. (see Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 763). See, Matter of Amedure v. State of New York, 232 AD3d 48 (3d Dept. 2024), aff'd in part 43 NY3d 116 (2024). In response, the New York State Legislature enacted significant revisions to Section 9-209 to address delays in determining election results. As relevant to the issues herein, the amendments changed the process of canvassing absentee ballots to "a new, more streamlined process in order to obtain the results of an election in a more expedited manner and to ensure that every valid vote by a qualified voter is counted." Id. (citing Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 763 at 7).

In 2023, the Third Department in Hughes v. Delaware County Bd. of Elections (217 [*5]AD3d 1250) analyzed the legislative history of Section 9-209(2), including the 2021 amendments. In considering a petitioner's claim to set aside casted absentee ballots ^[FN4] , the Court in Hughes determined this remedy was not available by statute, holding:

"In election cases, the field of the court's powers is limited to the specified matters, and the right to judicial redress depends on legislative enactment, and if the Legislature as a result of fixed policy or inadvertent omission fails to give such privilege, we have no power to supply the omission." (citing Matter of New York State Comm. of the Independence Party v. New York State Bd. of Elections, 87 AD3d 806, 810 [3d Dept. 2011] lv den. 17 NY3d 706 [2011]). Strict compliance with the Election Law is compelled and "flexibility in statutory interpretation" is eschewed. (citing Matter of Gross v. Albany County Bd. of Elections, 3 NY3d 251, 258 [2004]).

As to the handling of absentee ballots, the Legislature created "a new, more streamlined process of canvassing absentee ballots" (citation omitted) with the intent of speeding up the counting of absentee, military, special and affidavit ballots and preventing long delays so that the results of elections could be obtained in a more expedited fashion. (citation omitted).

In its decision, the Hughes Court outlined the new, streamlined process set forth in Election Law §9-209 by which absentee ballots are received and reviewed by boards of elections, noting that to accomplish its policy objectives, the Legislature significantly limited objections and post-election judicial review of absentee ballots during canvassing. 217 AD3d at 1255.

As explained by the Court, Election Law §9-209(2) allows for a limited examination of the absentee ballots and enumerates the exclusive criteria when determining the validity of a ballot. Id. In Footnote 7 of its decision, the Court noted the improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review under Section 9-209(2). 217 AD3d. at 1254-1255. If a ballot envelope is deemed invalid for a reason set forth in Section 9—209(2)(a), it will be set aside, not opened, and then reviewed as provided by Section 9—209(8). Id. at 1255. After that review, an objection can be made to the determination that a ballot is invalid, in which case "such ballot shall not be counted absent an order of the court." Id. (citing Election Law § 9—209[8][e]).

The new process was also reviewed in Matter of Amedure v. State of New York (232 AD3d 48 [3d Dept. 2024] aff'd in part 43 NY3d 116 [2024]), which decision discussed the protections in the statutory canvass procedure to ensure election integrity, including the duties of the bipartisan teams of poll clerks to review absentee ballots to confirming there is a name of a registered voter on the ballot envelope, and that the ballot was timely received and properly sealed, after which the ballot is presumptively valid unless both poll clerks object to its validity. 232 AD3d at 52-53. Absentee ballots the poll clerks invalidate are set aside to provide an [*6]opportunity to cure, and for subsequent post-election review. Id. (citing Election Law § 9-209 [2] [a]; [3]). All other absentee ballots must be canvassed and cast. Id. (citing Election Law § 9-209 [6]). Because the amendments to Election Law § 9-209 direct the review of absentee, military and special ballot envelopes on a rolling basis—both before and after the election—as opposed to at a scheduled and noticed time, the amendments make it clear that candidates have the right to observe the entire envelope review process, "without objection" (Election Law § 9-209 [5]). See, Shiroff v. New York State Board of Elections, 77 Misc 3d 773, 777 (Sup. Ct., Onondaga Co. 2022).

As argued by Respondents Essig and BOE and noted in Hughes — the question whether an absentee voter was domiciled at the place they claimed to reside is also not one of the explicit grounds used to deem an absentee ballot invalid pursuant to Election law §9-209(2). Significantly, Respondents argue Election Law §9-209(8)(e) states "[e]ach candidate . . . shall be entitled to object to the board of elections' determination that a ballot is invalid. Such ballots shall not be counted absent an order of the court. In no event may a court order a ballot that has been counted to have to be uncounted." (emphasis supplied). Here, as in Hughes, the BOE has already counted the absentee ballots at issue, thus precluding this Court from reviewing and ordering these absentee ballots to be uncounted.

Petitioner argued the amendments to Section 9-209 do not overrule the treatment of challenges to absentee ballots afforded by Election Law §8-506, which provides, in relevant part:

"During the examination of . . . absentee . . . voters' ballot envelopes, any inspector shall, and any watcher or registered voter properly in the polling place may, challenge the casting of any ballot upon the ground or grounds allowed for challenges generally, or (a) that the voter was not entitled to cast an . . . absentee . . . ballot . . .

Relying on the cases of Mondello v. Nassau County Bd. of Elections, supra, and Dorman v. Scaringe (245 AD2d 949 [3d Dept. 1997] lv. den. 91 NY2d 813 [1998]), Petitioner argues this Court remains authorized to consider challenges to absentee ballots based on residency. In addition to the fact that both cases were decided prior to the 2021 amendments to Section 9-209, Petitioner's reliance on Mondello is misplaced as the underlying facts therein are highly distinguishable from the instant matter. The Mondello court ruled the Supreme Court improperly directed the board of elections to canvass and count the ballots of two voters the board had declined to open based on its earlier determination those voters were not properly registered. The Second Department held the Supreme Court erred in conducting a hearing on the issue of whether the two voters were lawfully registered to vote. Citing both Section 8-506 and pre-amendment Section 9-209, the decision noted courts may review the validity of challenges to absentee ballots, and a court may direct correction of an error in the canvass or direct the performance of any duty imposed by law. (6 AD3d at 21). However, Mondello did not address any inconsistencies between the two sections and in any event, dealt with review of ballots that had not been counted. This holding is not, as Petitioner may argue, inconsistent with the more recent mandate in Amedure, supra, that once a ballot is processed, Election Law § 9—209[8][e] prohibits a court from ordering a ballot that has been counted to be uncounted. (43 NY3d at 123). Likewise, the Dorman court, while applying the pre-amendment Section 9-209, was also considering absentee ballots that had been challenged based on residency and had not been counted.

With respect to her challenges to the absentee ballots, Petitioner contends on November 7, 2025, she attended a canvass of absentee ballots related to her legislative district at the BOE's offices and interposed a challenge to the absentee ballots based upon this seemingly overwhelming evidence of impropriety as to the validity of the domiciliary addresses of the Respondent Voters. However, she also acknowledged that her challenge was made verbally to the BOE rather than by submission of a properly sworn challenging affidavit to the absentee ballots as prescribed by Election Law §5-220(1), which provides in relevant part:

"Any person may challenge the registration of a voter by executing and delivering to the board of elections or a board taking registrations, his affidavit that he had reason to believe that such voter's registration should be cancelled . . . Such affidavit shall contain . . . the registration serial number of the person challenged and a recital of the reasons and the facts supporting affiant's belief that the person challenged lacks the qualifications for voting prescribed in this chapter and specified in such affidavit. The affidavit shall state if the reasons for challenge are based upon the affiant's personal knowledge, or upon information received from another person. If the affiant's belief is based upon information furnished by another, the affidavit shall recite the name of the person furnishing the information and the basis for his information . . . "

Pursuant to Section 5-220, after a person has registered to vote, such registration can be contested in a post-registration challenge to the appropriate Board of Elections by the submission of a sworn affidavit setting forth certain information. Hughes, supra at 1254. Following a board's receipt of a challenging affidavit, the board shall conduct an investigation of the voter's qualifications to remain registered in the same manner as provided for applications for personal registration by mail. Id.; Election Law §5—220(1). As noted in Amedure, supra, lists of registered voters are regularly made available for public review (see Election Law §§ 5-602, 5-604), and Election Law §§5-218 and 5-220 allow claims to contest pending registrations or cancel completed registrations. 43 NY3d 116, 127.

Respondent Essig argued in order for Petitioner to have made a valid challenge to the absentee ballots, she would have had to look through the (NYSBOE) portal and then advise the BOE by sworn affidavit that she had concerns about a voter's registration and that she was challenging the qualifications of the voter. Such a proper challenge would have then required the BOE to look behind the registration to find out whether that voter is properly registered. Respondent argued the burden rested with Petitioner, who admittedly failed to avail herself of the procedures set forth in Article 5 for challenging a voter's registration, and cannot now argue the absentee ballots should be invalidated.

At oral argument, the BOE acknowledged it had suspicions concerning the repeated use of addresses over numerous absentee ballots, the applications for which were made by (or on behalf of) Respondent Voters via the NYSBOE online portal, a portal not controlled by Respondent BOE. BOE argues it played no role in processing of applications submitted through the NYSBOE portal and would defer to the NYSBOE for questions related to absentee ballots for which applications were made through their portal. BOE advised the Court a telephone call was made to the NYSBOE concerning the validity of Respondent Voters' ballots due to the fact 103 ballots used the same address, a single-family residence in Monroe, and the other 64 all used an address for a house of worship in Monroe. Despite what this Court views as alarming signs of [*7]impropriety and possible fraud, the NYSBOE told Respondent BOE in sum and substance "to let [the absentee ballots] go through." Accordingly, at the direction of the NYSBOE, the absentee ballots of Respondent Voters were canvassed and counted towards the final election results. In fact, both Commissioners of the BOE in bipartisan fashion agreed to overrule Petitioner's objections, despite the question over the validity of these absentee ballots.

The Legislature has made it clear that "[i]n no event may a court order a ballot that has been counted to be uncounted." See, Election Law §9-209(7)(k) and (8)(e). The controlling caselaw is also well settled that once a ballot has been by validated and counted by a board of elections, it cannot be invalidated or discounted. See, Matter of Amedure v. State of New York, supra; Matter of Delgado v. Sunderland, supra; Matter of Mondello v. Nassau County Bd. of Elections, supra; Jacobs v. Biamonte, supra; Matter of Gross v. Albany County Bd. of Elections, supra; Hughes v. Delaware County Bd. of Elections, supra; Matter of New York State Comm. of the Independence Party v. New York State Bd. of Elections, supra; Shiroff v. New York State Bd. of Elections, supra.

As an alternative to disallowing the absentee ballots, Petitioner is asking the Court to impound and preserve the absentee ballots cast by voters in Ward 4 of the Village of South Blooming Grove.

Pursuant to Chapter 763 of the Laws of 2021, a party wishing to invoke the jurisdiction of the Supreme Court with respect to injunctive relief in the form of reservation/impound orders:

"must meet the criteria in article sixty-three of the civil practice law and rules and show by clear and convincing evidence, that, because of procedural irregularities or other facts arising during the election, the petitioner will be irreparably harmed absent such relief. For the purposes of this section, allegations that opinion polls show that an election is close is insufficient to show irreparable harm to a petitioner by clear and convincing evidence."

Respondent Essig argues Petitioner failed to allege or show evidence of procedural irregularities in canvassing of ballots. The Court disagrees. The fact that the Respondent BOE telephoned the NYSBOE to raise concerns regarding the Respondent Voters' absentee ballots (despite the purported statement by NYSBOE to "just let it go through") certainly suggests irregularity in the canvassing of ballots. Regardless, as discussed above, since this Court lacks statutory authority to determine Petitioner's Article 16 challenge to the counting of Respondent Voters' absentee ballots, it follows the Court likewise cannot determine whether Petitioner has made the required showing of irreparable harm required by Article 63. See, CPLR §6301 and §6311. Accordingly, the Court cannot grant Petitioner's request to impound or otherwise encumber any absentee ballots ^[FN5] the BOE may require certifying the election results.

Despite that this Court lacks statutory authority to review the absentee ballots of Respondent Voters, Petitioner is not entirely without recourse or remedy. Under New York Executive Law §63-b, Petitioner can request the New York Attorney General to commence a quo warranto action seeking to have the Respondent Voters' absentee ballots invalidated and, if the new vote count warrants, to have Respondent Essig removed from office as a County Legislator. See, NY Executive Law §63-b.

As argued by Respondents, the proper vehicle for challenging the results and contesting title to the public office of the purported winner is a quo warranto action, codified in Executive Law §63-b. Executive Law §63-b (1) provides:

The attorney-general may maintain an action, upon his own information or upon the complaint of a private person, against a person who usurps, intrudes into, or unlawfully holds or exercises within the state a franchise or a public office, civil or military, or an office in a domestic corporation. The attorney-general may set forth in the complaint, in his discretion, the name of the person rightfully entitled to the office and facts showing his right thereto. Judgment may be rendered upon the right of the defendant and of the party so alleged to be entitled, or only upon the right of the defendant, as justice requires. Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all to determine their respective rights thereto."

Thus, Executive Law §63-b vests the power to commence a quo warranto action in the Attorney General, to be used only after the alleged "usurper" has taken office. Delgado, supra, at 423; Executive Law §63-b. In exercising this power, the Attorney General performs an investigative and screening function on such challenges (Id., citing Morris v. Cahill, 96 AD2d 88, 91 [3d Dept. 1983]) and is presumed to afford a claimant a full opportunity to assert a legal right, if any exists. Id.

The Court expects Respondent BOE and the NYSBOE to fully cooperate with the New York State Attorney General's Office should it decide to pursue an action under Executive Law §63-b.

Petitioner fails to establish the extraordinary remedy of conducting a new general election for Orange County Legislator for the 5th Legislative District, whereas here, the alleged irregularities are not sufficiently large enough to change the results of the election. See, Ippolito v. Power, 22 NY2d 594 (1968); Doherty v. Maloney, 42 NY2d 1069, 1071 (1977); see also, Santucci v. Power, 33 AD2d 517 (2d Dept. 1969) The Court of Appeals in Ippolito v. Power established the rule that a court may only direct a new election where it "has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was... elected." 22 NY2d at 596 (citing Election Law §330, subd. 2). Likewise, in Doherty v. Mahoney, the Court of Appeals reversed an Appellate Division decision ordering a new primary [*9]election for the Buffalo City Council, where the two top vote-getters won by a such a large margin the alleged irregularities would not change the result, finding the voter's choice of these two candidate be respected. See, Doherty v. Maloney, supra., at 643. Similar to Doherty, the alleged irregularities of the absentee ballots at issue here, even if proven by Petitioner, are not sufficient in number to change the outcome of the election warranting a new election. When asked whether the number of ballots at issue would change the result of the election, Petitioner's counsel acknowledged it would not overturn the result. Accordingly, the Court will not order a new general election for the Orange County Legislator for the 5th Legislative District.

While this Court recognizes the New York State Legislators need for streamlining the canvassing process for absentee ballots, such expediency should not be favored over accuracy and cannot be at the expense of a fair and proper election. The need for a more expedited method to canvass votes should never impede or diminish the obligations of a Board of Elections to ensure the validity of each ballot before it is cast. Based upon Petitioner's submissions, Respondent BOE may have fallen short in its obligation to properly canvass the contested absentee ballots before casting them. However, as correctly argued by Respondents, this Court is limited by the Legislature in its ability to review Petitioner's claim. Unfortunately, the Court is constrained to deny the relief requested in the Petition and instead defers to the New York State Attorney General who is vested with the power to determine whether review and action is warranted to ensure there has been a valid and legal election of the Orange County Legislature for the 5th Legislative District.

Accordingly, it is hereby

ORDERED that Petitioner's application (Mot. Seq. #1) for an Order directing the relief requested in the Petition is DENIED, and it is further

ORDERED that the Petition is hereby DISMISSED.

The foregoing constitutes the Decision and Order of this Court.