In the Matter of John Tylec, Respondent, v. James Iwanicki, Appellant, et al., Respondents

In the Matter of John Tylec, Respondent, v James Iwanicki, Appellant, et al., Respondents. [706 NYS2d 537] [MAJORITY] —Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Petitioner commenced this proceeding pursuant to Election Law § 16-106 to validate an improperly placed write-in vote in favor of petitioner and find him the winner of the Independence Party primary election for the office of County Legislator, 9th District, County of Niagara. Supreme Court erred in granting the petition. Election Law § 8-308 (3) “mandates, in clear and unequivocal terms, that ‘[a] write-in ballot must be cast in its appropriate place on the machine, or it shall be void and not counted’ ” (Matter of Haynie v Mahoney, 48 NY2d 718, 719; see, Matter of Brownson v Andrews, 90 NY2d 949). The challenged ballot was cast in column four rather than column three, which was the designated column for the office of County Legislator. Column four was a blank column, and column five was the designated column for the office of Mayor of Tonawanda. We reject petitioner’s contention that the improperly placed write-in vote was the result of a voting machine malfunction. The court properly found that the voting machine did not malfunction. Petitioner has failed, therefore, to distinguish this case from Matter of Brownson v Andrews (supra). The improperly placed write-in vote is void and cannot be counted. (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Election Law.) Present — Pine, J. P., Lawton, Hayes, Wisner and Scudder, JJ.