—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Samuel J. Casella (respondent) appeals from an order entered March 3, 2000 that determined which absentee and other paper ballots would be counted in the special election for the 129th Assembly District held on February 1, 2000. On February 8 *967and 9, 2000, the votes from the respective election districts were canvassed and the parties made objections to the casting and counting of certain ballots. By order to show cause returnable February 11, 2000, respondent filed a petition challenging certain ballots and seeking a stay preventing further canvassing of the challenged ballots. Petitioner filed an affidavit, which Supreme Court deemed a petition (hereafter cross petition), contesting certain ballots.
The court erred in determining that four ballots canvassed on February 18, 2000, 17 days after the election and without written notice, may be counted. Election Law § 9-209 (1) (a) precludes the canvassing of ballots more than eight days after a special election, and Election Law § 9-208 (1) precludes the recanvassing of ballots more than 15 days after an election (see, Matter of Giambrone v Alberico, 179 AD2d 1090, 1091, lv denied 79 NY2d 753). We reject petitioner’s argument that the stay sought on February 10, 2000, had the effect of tolling those time limitations. The petition and cross petition each sought to stay further canvassing of disputed ballots canvassed on February 8 and 9, 2000; they did not contemplate ballots not known to exist until February 11, 2000. In addition, the notice requirement set forth in Election Law § 9-209 (1) (b) was violated (see, Matter of Giambrone v Alberico, supra, at 1091; see also, Matter of Cregg v Fisselbrand, 22 AD2d 342, 345, affd 15 NY2d 748). Given our determination, we do not address respondent’s further argument that affidavit ballots must be witnessed by an election official.
The court further erred in determining that three ballots wherein the voters marked outside the voting square may be counted (see, Matter of Pavlic v Haley, 20 AD2d 592, affd 13 NY2d 1111). Finally, in view of our determination in Matter of Kolb v Casella (270 AD2d 964 [decided herewith]) that a Livingston County voter’s affidavit ballot may not be counted, we need not reach respondent’s further argument that the irregular mark made by that voter invalidated the ballot. We therefore modify the order by providing that the ballots canvassed after February 9th and the ballots wherein voters marked outside the voting square may not be counted.
All concur, except Kehoe, J., who dissents in part in the following Memorandum.