Simon v. Board of Elections , 635 N.Y.S.2d 529 ( 1995 )

—In a proceeding, inter alia, to enjoin the respondent Board of Elections of the City of New York from counting any votes cast for the party position of Male Democratic District Leader for the 23rd Assembly District, Part B, in the September 13, 1994, election, the petitioner appeals from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Leahy, J.), dated March 14, 1995, as denied the petition and dismissed the proceeding.

Ordered that the order and judgment is reversed insofar as appealed from, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Supreme Court, Queens County for a determination of the petition on the merits.

The Supreme Court erred by dismissing this proceeding for failure to state a cause of action. The petition sets forth facts that support the appellant’s claim that there were irregularities that altered the outcome of the election (see, Election Law § 16-102 [3]; Matter of Washington v Jenkins, 144 AD2d 367; Leon v Martinez, 84 NY2d 83). Miller, J. P., Pizzuto, Joy and Goldstein, JJ., concur.