Opinion
Argued October 25, 1982
Decided October 25, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, EUGENE J. BERKOWITZ, J.
Victor A. Kovner for appellant.
Harry R. Pollak for respondent.
MEMORANDUM.
Never before have we imposed the sanction of depriving a primary candidate of an election victory absent a showing of that candidate's responsibility for the fraud or misconduct, nor does the record in this case warrant the imposition of such a sanction. Petitioner failed to present evidence sufficient to establish irregularities or misconduct under either the rule of Matter of De Martini v Power ( 27 N.Y.2d 149) and Matter of Ippolito v Power ( 22 N.Y.2d 594) or Matter of Lowenstein v Larkin ( 40 A.D.2d 604, affd 31 N.Y.2d 654). Indeed, the Appellate Division acknowledged that the number of irregularities were not sufficient to change the result of the election or justify ordering a new election.
Chief Judge COOKE and Judges GABRIELLI, WACHTLER, FUCHSBERG and MEYER concur; Judges JASEN and JONES dissent and vote to affirm in a separate memorandum.
Motion for leave to appeal granted. Order reversed, without costs, and petition dismissed in a memorandum.
The order of the Appellate Division should be affirmed. We believe we are bound by the affirmed finding of fact at the Appellate Division that the primary election was so permeated by fraud and irregularities "as to render it impossible to determine who was rightfully nominated." Where there was such a breakdown in the election process as the courts below found occurred here, a new primary election should be held to determine the rightful Democratic candidate for the important office of Member of the House of Representatives (see Matter of Lowenstein v Larkin, 31 N.Y.2d 654).