Matter of Stern v Garfinkle

2005 NYSlipOp 07726

October 19, 2005

Appellate Division, Second Department

In the Matter of Steven H. Stern, Appellant, v Robert L. Garfinkle et al., Respondents, and Frank Gargano, Respondent.

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In a proceeding pursuant to Election Law § 16-106, inter alia, to declare invalid certain absentee ballots cast in the primary election held on September 13, 2005, for the nomination of the Working Families Party as its candidate for the public office of Member of the Suffolk County Legislature, 16th Legislative District, the petitioner appeals from a final order of the Supreme Court, Suffolk County (Hudson, J.), dated September 29, 2005, which granted Frank Gargano's motion to dismiss the petition.

Ordered that the final order is affirmed, without costs or disbursements.

The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with (see Matter of McGreevy v Simon, 220 AD2d 713 [1995]; Matter of Bruno v Ackerson, 39 NY2d 718 [1976]). The order to show cause in the instant proceeding provided that personal service was to be made upon the individual respondents on or before September 19, 2005. The space provided for indicating a date by which alternative service, i.e., overnight mail, was to be made was left blank. Nevertheless, the petitioner served the order to show cause by overnight mail.

The absence of a date by which overnight mail service was to be made had the effect of striking the provision for alternative service. Thus, the mode of service utilized by the petitioner was not in strict compliance with the order to show cause and the Supreme Court properly determined that it was without jurisdiction to entertain the proceeding (see Matter of O'Daniel v Hayduk, 59 AD2d 706, 707 [1977], affd 42 NY2d 1062 [1977]). H. Miller, J.P., Krausman, Rivera and Dillon, JJ., concur.