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MATTER FRANK C. ARRICALE v. JAMES M. POWER ET AL. (12/19/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY 1969.NY.44043 <http://www.versuslaw.com>; 306 N.Y.S.2d 334; 61 Misc. 2d 653 December 19, 1969 IN THE MATTER OF FRANK C. ARRICALE, PETITIONER,v.JAMES M. POWER ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF THE CITY OF NEW YORK, RESPONDENTS Maurice A. Reichman for petitioner. J. Lee Rankin, Corporation Counsel (Arthur H. Geisler of counsel), for Board of Elections, respondent. Michael R. Cappelli and Alexander Sacks for A. Joseph Ribustello, intervenor-respondent. Arnold L. Fein, J. Author: Fein


Arnold L. Fein, J.

Author: Fein

 Petitioner, the candidate of the Liberal Party for one of two positions of Councilman-at-Large from Bronx County, seeks an order, pursuant to article 78 of the CPLR, directing respondents, the Board of Elections of the City of New York, to issue to petitioner a certificate of election to the said councilmanic office.

A. Joseph Ribustello, the candidate of the Republican Party and of the Conservative Party, seeks leave to intervene herein as a respondent and to answer the petition. His application is granted, there being no opposition thereto.

On November 4, 1969, a general election was held in New York City. Among the offices to be filled were those of two Councilmen-at-Large from Bronx County. The names of the candidates for these two offices appeared on the voting machines in the following order, and after an official re-canvass of the vote, the Board of Elections reported the vote as follows:

Row A Republican Party

A. Joseph Ribustello -- 40,074 votes

Row B Democratic Party

Aileen Ryan -- 169,702 votes

Row C Conservative Party

A. Joseph Ribustello -- 31,272 votes

Row D Liberal Party

Frank C. Arricale -- 70,054 votes

Subdivision d of section 22 of the New York City Charter provides: "Each elector shall have the right to vote for not more than one candidate at large and the two candidates receiving the largest number of votes in each borough shall be elected."

Aileen Ryan, the Democratic candidate, having received the "largest number of votes" (actually a majority of 28,302 votes), was duly elected to one of the seats.

The dispute herein is concerned solely with the remaining vacancy. Since the 70,054 votes polled by the petitioner, Arricale, exceed the 40,074 votes garnered by A. Joseph Ribustello, as the Republican candidate, and since they also exceed the 31,272 votes received by Ribustello, as the Conservative candidate, petitioner contends that as one of "the two candidates receiving the largest number of votes," he is entitled to the remaining seat.

Respondents contend that the intervenor-respondent Ribustello's combined vote on the Republican and Conservative lines, totaling 71,303 votes (1,299 votes more than petitioner), make him the candidate with the second largest vote.

The basic question is: Shall all the votes cast for a candidate for Councilman-at-Large be counted and credited to him, or shall the votes for him be separately tallied ...


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