Opinion
October 20, 1987
Appeal from the Supreme Court, Suffolk County, Dunn, J., Tanenbaum, J.
Ordered that the resettled judgment is reversed, on the law, without costs or disbursements, and the Suffolk County Board of Elections is directed to certify the results of the September 15, 1987 Conservative Party primary election for the nomination of candidates of that party for the public offices of members of the Town Board of the Town of Southold.
Assuming, without deciding, that the Supreme Court, Suffolk County, possessed the requisite jurisdiction to review the validity of the absentee ballot in issue, we nevertheless determine that the petitioner has failed to sustain his burden of proof in this proceeding. A new primary election may not be held unless the petitioner proves that the irregularities are sufficiently large in number and are of such a nature as to establish the probability that the election results would be changed absent the irregularity (see, Matter of Lisa v. Board of Elections, 40 N.Y.2d 911; Matter of Henry v. Mahoney, 105 A.D.2d 1159). On the record before us the petitioner has not met that burden. Niehoff, J.P., Weinstein, Eiber and Harwood, JJ., concur.