Appeal from an order of the Supreme Court, Cattaraugus County (John T. Ward, A.J.), entered June 2, 2003. The order denied the motions of respondent Richard O. Stevenson, Commissioner of Elections, for counsel fees and litigation expenses on appeal and for leave to reargue.

It is hereby ordered that said appeal from the order insofar as it denied leave to reargue be and the same hereby is unani*963mously dismissed (see Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]) and the order is modified on the law by granting the motion for counsel fees and litigation expenses on appeal and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Cattaraugus County, for further proceedings in accordance with the same memorandum as in Matter of Gimbrone v Stevenson (8 AD3d 959 [2004]). Present—Wisner, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.