by Tiffany Elliott

In a decision handed down Monday, a challenge against the March 15 election of incumbent Massapequa Park Village Justice Gerard Giannattasio was thrown out of court. The challenge, waged by Giannattasio’s opponent, Mark Alter, looked to at least recount the votes or at most hold a new election on the basis, he said, that the election was flawed.

But according to State Supreme Court Justice Robert Ross, Alter’s claims, while not entirely unfounded, did not rise to the level of requiring an additional recount or vote. And, added the Justice, the substantial difference in the vote totals, as well as the re-canvass already completed by the Nassau County Board of Elections which recertified them, made the likelihood that another recount would produce different results very unlikely.

"Petitioner’s arguments are unavailing and the myriad of alleged irregularities, even if true, were not substantive, or of such nature as to establish the probability that the results of the election would be changed," said Ross who cited Belanger v. Nolsen, 154 AD2d 413 as precedent.

"I like to look at people and say that their motives are the best," said Giannattasio in response to the latest court decision. "If Alter felt there was a problem with the election, it was proper for him to come forward but what he was complaining of wasn’t substantial."

Giannattasio defeated Alter in the election, 969 to 610.

The decision is the latest in a series of legal challenges that began even before the vote took place last month. Initially, Giannattasio challenged Alter’s petitions saying the name he chose for his independent party was too similar to his own. The courts upheld that challenge, and Alter refiled the same petitions with a new party name. Giannattasio challenged the petitions again saying they had been altered and that the Village, which acts as the Board of Elections in local races, should have refused to accept them on that basis.

The courts ruled against Giannattasio, and Alter’s name was placed on the ballot.

Following the vote, Alter asked that the machines be impounded and that the results be re-canvassed. He also raised concerns about a machine that had apparently malfunctioned during the voting process.

According to Peggy Caltabiano, Village Elections Commissioner, the malfunction was reported after a voter said she couldn’t pull the machine’s lever down. The machine was replaced and the voter cast her vote on the new machine.

In his complaint to the court, Alter also claimed that during the election, several inaccuracies appeared in the voting process, which prevented the votes to be correctly recorded. These included absentee ballots votes from people living outside the village which, he said, were accepted. Addresses for all

all other voters were not checked, he added.

In addition, the suit stated that the names of the parties and the candidates were improperly placed on the ballot for the election. The name "party" was deleted from the lines of each candidate, and it appeared that voters had to vote for the line "A" party first, and thereafter for line "B," according to Alter.

Alter also claimed the machines were not equipped with pencils for "write-in" ballots, which prevented the electorate from subscribing votes. The fact that the booths were near photographs hung in Village Hall of the incumbent Village Justice, the Mayor and Trustees, was also an issue, because the suit said it gave Giannattasio a "clear advantage" because there wasn’t a photograph of him (Alter) hanging up.

Alter originally requested every written ballot, envelope, tally sheet and all other writings containing the names of any voters be forwarded to the Board of Elections, and that all machines be protected, preserved and isolated until votes could be recounted. He questioned why the machines were moved to another location.

The votes were recounted on Thursday, March 24, by the Election Machine Company based in Woodside, Queens, which provided the machines.

"We found one additional absentee ballot vote, but that was for Giannattasio," said Caltabiano at that time.

That recount was set aside however, after Alter complained that the Village had the company recount the votes without having the candidates and election officials present. A second recount was held, April 1, at the Nassau County Board of Elections with Alter in attendance. The results showed the same results except for two additional write-in votes; one for Peggy Caltabiano for Mayor and another that was indecipherable.

In his decision, however, Ross said that Alter was correct in contending that the Village Clerk had erroneously delegated the re-canvassing on March 24 to the Election Machines Service Company, rather than the Nassau County Board of Elections, as required by state law. "But, prior to the hearing herein, a re-canvass was ordered by this Court and performed at the Nassau County Board of Elections in the presence of all parties, who had the opportunity to have an expert of their choosing present," said Ross in his decision. Those results reconfirmed the two previous results findings, said the court.

Finally, Alter also challenged the Village’s decision to rent the voting machines from a private firm, instead of from the Nassau County Board of Elections. Village officials said that its a longstanding practice and a review of other school and municipal elections showed that some also rent voting machines from private companies.

Mayor James Altadonna said he was pleased with the judge’s decision but that the lawsuit was unjustified and cost the village time and money.

"It forces us to refocus our energies and spend more than $10,000 on what was nothing more than a politically motivated charge," said Altadonna. "I am glad that we can now get back to serving the residents."

Alter did not respond for a comment on the issue at press time.