Opinion
October 16, 1991
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the judgment is modified, as a matter of discretion, by deleting therefrom the provision awarding costs and disbursements to the respondent Edward J. Brady, and substituting therefor a provision denying an award of costs and disbursements to any party; as so modified, the judgment is affirmed, without costs or disbursements.
We conclude that the Supreme Court properly dismissed the proceeding since the petitioner has failed to establish fraud, misconduct or tampering (see, Matter of Beatty v. Owens, 57 N.Y.2d 952). Moreover, the court correctly excluded from evidence the results of tests of the voting machines conducted subsequent to the election, since these tests failed to meet the standards set forth in Election Law § 9-208 (3).
The petitioner also failed to establish the probability, not the mere possibility, that the election result would be changed by a shift in, or invalidation of, the questioned votes (see, Matter of Ippolito v. Power, 22 N.Y.2d 594, 597-598; see also, Matter of Lisa v. Board of Elections, 40 N.Y.2d 911; Matter of Fogarty v. Wolf, 133 A.D.2d 794, 795). Thus, the Supreme Court properly dismissed the proceeding.
However, in the exercise of our discretion, we modify the judgment by deleting the provision thereof which awarded costs and disbursements to the respondent Edward J. Brady, and substituting therefor a provision denying an award of costs and disbursements to any party. Bracken, J.P., Harwood, Eiber and O'Brien, JJ., concur.