We respectfully dissent in part because, in our view, Supreme Court erred in granting the petition and reinstating petitioner to her appointment to the position of clerk. We agree with the majority, however, that the court properly dismissed the petition against respondent Sue A. Fries, Commissioner of Elections, but for a different reason. Pursuant to Election Law § 3-212 (2), “[a]ll actions of the board [of elections] shall require a majority vote of the commissioners prescribed by law for such board.” Here, there are only two commissioners, and thus each appointment or removal of an employee requires a unanimous vote of those commissioners to constitute a majority. The hiring of the clerk, although a discretionary function of the commissioners, cannot be exercised unilaterally (see Matter of Mohr v Schroeder, 86 NY2d 786, [1995] revg 216 AD2d 926 [1995] for the reasons stated at 162 Misc 2d 584 [1994]; Matter of Graziano v County of Albany, 309 AD2d 1062, 1063 [2003], lv granted 1 NY3d 507 [2004]). In our view, the manner in which petitioner was appointed, i.e., on the conceded unilateral action of one commissioner and practice of acquiescence without affirmative action by the other commissioner, is legally deficient and her appointment therefore was a nullity. Acquiescence does not meet the legal requirements of majority vote mandated by the Election Law (cf. Matter of Starr v Meisser, 39 AD2d 712 [1972], affd 33 NY2d 748 [1973]). Because her appointment is a nullity, petitioner is not entitled to the protections of the Election Law regarding removal from employment (see generally County of Chautauqua v Chautauqua County Employees’ Unit 6300 of Local 807 of Civ. Serv. Employees’ Assn., Inc., Local 1000, AFSCME, AFL-CIO, 181 AD2d 1052 [1992]).
We therefore would dismiss the petition in its entirety. Present—Wisner, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.