I respectfully concur in the result reached by the majority, namely, reversal of the order granting the motion of respondent Augustine R. Beyer to dismiss the petition and remittal of the matter to Supreme Court for further proceedings on the petition. The majority, however, in my view, does not provide sufficient guidance to Supreme Court on remittal. There is no question that the election was decided by one vote, and that there were 31 votes that were not counted for either candidate. Unfortunately, those 31 votes have not been segregated from the remaining votes, and thus it is not possible for petitioner to examine only those 31 votes to determine if they erroneously were not counted in accordance with 9 NYCRR 6210.15. At a minimum, petitioner should be allowed to question representatives of the Erie County Board of Elections regarding the basis for the 31 uncounted votes and to present expert testimony on the issue of the capability of the voting machines to read otherwise valid markings.
Importantly, I note that, the court erred in requiring petitioner to prove the actual existence of a material discrepancy in order to survive the pre-answer motion to dismiss. Rather, the correct burden of proof to survive the motion is for petitioner to show *1242the likelihood of a material discrepancy between a manual audit tally and the voting machine or system tally (see Election Law § 16-113 [2]). Present — Scudder, PJ., Centra, Peradotto, Lindley and Martoche, JJ.