USCOA,2 No. 29 SSM 1
Irving A. Gelb,
Appellant,
v.
The Board of Elections of the City of New York, et al.,
Respondents.

2001 NY Int. 23

February 20, 2001

This memorandum is uncorrected and subject to revision before publication in the New York Reports.

Submitted by Irving Gelb, pro se, appellant.
Submitted by Leonard Koerner, for respondents.
Ellen Lampach and Anita Schuloff, amici curiæ.

MEMORANDUM:

The certified question should not be answered in the circumstances of this case.

This Court previously accepted the following certified question from the United States Court of Appeals for the Second Circuit: “Is write-in voting available to an enrolled party voter in a contested primary election where no timely petition for opportunity to ballot has been filed?” (Gelb v Board of Elections of City of New York, 224 F3d 149, 158; see also, Election Law § 6-164).

Defendant Board of Elections of the City of New York and its named officials now concede that the certified question should be answered in the affirmative. In view of that concession, the question posed to us by the Second Circuit no longer presents this Court with a live controversy. Accordingly, in light of the change in legal position taken by defendants since the certification, and without passing on the legal correctness of that view, we conclude that it would be inappropriate for this Court to answer the question certified.

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.17 of the Rules of Practice of the New York State Court of Appeals, and upon review of submissions pursuant to section 500.4 of said Rules of Practice, certified question not answered, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.

Decided February 20, 2001