
    In the Matter of Mary A. Ogilvie, Appellant, v George D. Salerno et al., Respondents.
   Appeal from a judgment of the Supreme Court at Special Term, entered August 22, 1980 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to section 16-102 of the Election Law, seeking to declare invalid a petition for the opportunity to ballot and to write in the name of an undesignated candidate of the Right to Life Party for the office of Representative from the Third Congressional District in the September 9, 1980 primary election. Petitioner contends that Special Term erred in refusing to invalidate the designating petition at issue here upon the ground that all signatures witnessed by a certain notary should be invalidated because the notary failed to swear the signatories. In our view, petitioner’s attempt to rebut the presumption that a public officer has performed the duty imposed upon him by law by submitting the affidavits of a few signatories who state that they were not sworn or do not remember being sworn was insufficient (Matter of Napier v Salerno, 74 AD2d 960; Matter of Locascio v Feuer, 45 AD2d 937, affd 34 NY2d 976), particularly where, as here, the notary was available to testify. We have considered petitioner’s other arguments and find them to be without merit. Judgment affirmed, without costs. Mahoney, P. J., Greenblott, Kane, Casey and Herlihy, JJ., concur.  