In the Matter of Michael J. Garson, Appellant, v. Joel M. Michaels et al., Respondents, and Adele H. Cohen, Appellant, et al., Respondents

(October 25, 1991) In the Matter of Michael J. Garson, Appellant, v Joel M. Michaels et al., Respondents, and Adele H. Cohen, Appellant, et al., Respondents. [MAJORITY] — In a proceeding, inter alia, to set aside the results of a primary election held on September 12, 1991, for the nomination of the Democratic Party as its candidate for the public office of Member of City Council of the City of New York from the 48th Council District, Michael Jules Garson, and Adele H. Cohen appeal from a judgment of the Supreme Court, Kings County (Levine, J.), dated October 25, 1991, which, after a nonjury trial, inter alia, dismissed the proceeding. Ordered that the judgment is affirmed, without costs or disbursements. The appellants have failed to establish that the primary election results were tainted by fraud, or that the number of irregularities was so great or of such a nature as "to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes” (Matter of Ippolito v Power, 22 NY2d 594, 597-598; see also, Matter of Lisa v Board of Elections, 40 NY2d 911; Matter of Miller v Aboulafia, 176 AD2d 839). They have also failed to sustain their burden of proving that this was one of those "rare elections 'conducted so badly that * * * every dictate of fairness and protection of voters’ franchise demands a new election’ ” (Matter of Lowenstein v Larkin, 40 AD2d 604, quoting from Matter of DeSapio v Koch, 21 AD2d 20, 22). Kunzeman, J. P., Sullivan, Balletta and Copertino, JJ., concur.