
    (October 22, 1984)
    In the Matter of Steven M. Gates, Appellant-Respondent, v George P. Scaringe et al., Constituting the Albany County Board of Elections, Respondents, and John G. Turner, Jr., Respondent-Appellant. (And Another Related Proceeding.)
   Cross appeals from a judgment of the Supreme Court at Trial Term (Hughes, J.), entered October 15, 1984 in Albany County, which, in two proceedings pursuant to section 16-106 of the Election Law, directed the Albany County Board of Elections to certify that John G. Turner, Jr., was duly nominated as the Conservative Party candidate for the office of County Judge of Albany County at the September 11, 1984 primary election.

These cross appeals involve four disputed absentee ballots cast at the primary election for the Conservative Party nomination for the office of County Judge of Albany County. Trial Term properly ruled that it did not have jurisdiction in these proceedings over three of the absentee ballots in issue which had already been opened and counted by the election inspectors at the local polling places without challenge or protest (see Election Law, § 8-506). As such, these absentee ballots were not “challenged ballots” within the jurisdiction of the Supreme Court pursuant to subdivision 1 of section 16-106 of the Election Law (see Shells v Flynn, 275 NY 446). This lack of jurisdiction is not affected by the fact that, due to one candidate having received all of the votes cast in the two election districts involved, it may be possible to remove the disputed votes from the final totals in the event of a successful challenge in this proceeding to the voters’ qualifications.

Trial Term was also correct in its ruling regarding the remaining absentee ballot, which was challenged and remains unopened. The application for this absentee ballot was not made until the day of the primary election. Trial Term thus properly refused to open and count the ballot since the application was received by the Board of Elections later than the day before the election (see Election Law, § 8-400, subd 2, par [c]).

Judgment affirmed, without costs. Kane, J. P., Casey, Weiss, Yesawich, Jr., and Levine, JJ., concur.  