A candidate who said that a state assemblywoman had committed “rampant and aggressive electioneering” in and around polling places in the Bronx on Primary Day asked an appeals court panel on Tuesday to grant his request for a new vote.
The candidate, Maximino Rivera, lost the Sept. 13 Democratic primary to the incumbent assemblywoman, Carmen E. Arroyo by a vote of 1,370 to 647, according to court papers. Several days later he sued the New York City Board of Elections, Ms. Arroyo and a third candidate, Charles Serrano, saying that Ms. Arroyo’s campaign had broken numerous rules.
The suit was dismissed by a lower court on procedural grounds.
Chief among the violations listed was an assertion that Ms. Arroyo herself had gone into a polling place, at the Borinquen Court apartment complex on East 138th Street in the South Bronx, and told voters how to cast their ballots.
A photograph accompanying court filings shows a woman identified as Ms. Arroyo, in a red blazer, inside a polling place identified as the one at Borinquen Court.
State law forbids candidates or supporters from actively campaigning within 100 feet of a polling place.
An affidavit by Linda Resto, a poll watcher for Mr. Rivera who said she took the photograph, added that when she complained to an election worker at Borinquen Court that Ms. Arroyo should not be in the polling place, the worker replied: “She is my boss. She pays my salary. I can’t tell her to go.”
Another poll watcher for Mr. Rivera, Harry Bubbins, said in an affidavit that Ms. Arroyo and staff members also spoke to voters at a polling place at the Judge Gilberto Ramirez houses on East 138th Street.
Mr. Rivera filed a photograph from the Ramirez houses that showed a sample ballot marked with a vote for Ms. Arroyo, which he said was taped to a wall inside the polling place, as well as a photograph of a car parked outside; Mr. Rivera said the car displayed a poster for Ms. Arroyo and blared a message supporting her from loudspeakers.
Ms. Arroyo’s chief of staff did not immediately respond to an e-mail requesting comment.
Mr. Rivera’s suit was dismissed on procedural grounds in early October by a State Supreme Court justice in the Bronx, who said that Mr. Rivera, who drew up the papers, erred by starting his lawsuit with a petition and notice of hearing rather than an order to show cause.
The justice, John Carter, also said that Mr. Rivera’s filing gave the other parties a response date that was one day less than the eight days’ notice required.
But on Tuesday a lawyer representing Mr. Rivera, Donald R. Dunn, told the five-judge panel at the Appellate Division, First Department, in Manhattan that election law did not require an order to show cause. And he said that the public interest would have been served by allowing the Supreme Court to hear arguments with seven days’ notice or adjourning the proceeding for a day.
Three of the judges asked a lawyer for the Board of Elections whether the agency would have been prejudiced by allowing the Supreme Court hearing to proceed on Oct. 1, the response date in Mr. Rivera’s filing.
The lawyer, Stephen Kitzinger, replied that the primary vote was to be certified on Oct. 2 and that there was not enough time to conduct a new primary, certify that result and prepare for a general election.
One of the judges reacted with apparent surprise, asking: “The Board of Elections has put into effect a system that cannot be corrected if there is a defect?”
“If it’s in the September primary that is correct, Your Honor,” Mr. Kitzinger replied.
A lawyer for Ms. Arroyo, Stanley Schlein, told the judges that he did not believe that all sides would have been prepared to conduct a hearing in State Supreme Court on Oct. 1.
“Everyone was not ready or present,” he told the panel.
Outside the courthouse, Mr. Rivera said that he thought his challenge was important.
“Its time to send a message,’ he said. “Everyone should respect the rights of the voters.”
The judges did not say when they would issue a decision.