
    [778 NE2d 546, 748 NYS2d 896]
    In the Matter of Pedro Espada, Jr., et al., Respondents, v Ruben Diaz et al., Appellants, and Board of Elections in the City of New York, Respondent.
    Decided September 9, 2002
    
      APPEARANCES OF COUNSEL
    
      Martin E. Connor, Brooklyn, and Stanley Kalmon Schlein, Bronx, for appellants.
    
      Lewis & Fiore, New York City (David L. Lewis of counsel), for Pedro Espada, Jr., and others, respondents.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be reversed, without costs, and the petition dismissed.

In an earlier proceeding brought pursuant to Election Law § 16-102, Supreme Court disqualified candidate Raysa Castillo on residency grounds. The present petition seeks to invalidate the certificate of substitution naming Ruben Diaz for Castillo.

Supreme Court explicitly determined that neither the petition nor the petition gathering process was tainted by fraud. In reversing as a matter of law, the Appellate Division neither rejected Supreme Court’s factual findings nor made any substitute findings. The Appellate Division thus erred in reversing and granting the petition to invalidate. “Where as here, a candidate is disqualified but there is no finding that either the petition or petition gathering process is tainted by fraud, the committee [to fill vacancies] is empowered to make this substitution” (Owens v Sharpton, 45 NY2d 794, 796).

Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.  