| Matter of Nunziato v Messano |
| 2011 NY Slip Op 06273 [87 AD3d 647] |
| August 16, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anthony P. Nunziato et al.,Appellants, v Frank P. Messano et al., Respondents. |
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In a proceeding pursuant to Election Law § 16-102 to invalidate a petition designatingFrank P. Messano and Rosemarie Iacovone as candidates in a primary election to be held onSeptember 13, 2011, for the Republican Party positions of Male Member and Female Member ofthe Republican Party State Committee from the 30th Assembly District, respectively, thepetitioners appeal from a final order of the Supreme Court, Queens County (O'Donoghue, J.),dated August 8, 2011, which, upon granting the application of Frank P. Messano and RosemarieIacovone to dismiss the petition to invalidate on the ground that service thereof wasjurisdictionally defective, inter alia, dismissed the proceeding.
Ordered that the final order is reversed, on the law, without costs or disbursements, thepetition to invalidate is reinstated, and the matter is remitted to the Supreme Court, QueensCounty, for further proceedings in accordance herewith, to be conducted forthwith.
In a proceeding pursuant to Election Law § 16-102, "[t]he method of service providedfor in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of Hennessey v DiCarlo, 21AD3d 505, 505 [2005]; see Matterof Del Villar v Vekiarelis, 59 AD3d 642 [2009]; Matter of Master v Pohanka, 43 AD3d 478 [2007]). Here, thepetitioners established that they served the petition to invalidate in accordance with the order toshow cause, which permitted service, among other means, "by guaranteed express overnightdelivery mail," placed in the mail on or before July 27, 2011. The petitioners submitted anaffirmation of service indicating that copies of the petition to invalidate were dispatched byguaranteed express overnight delivery, and annexing the original receipts of mailing, addressedto each of the respondents, which reflected the use of guaranteed express overnight delivery mailand were date-stamped by the United States Postal Service on July 27, 2011. In support of theirapplication to dismiss the petition to invalidate, the respondent candidates offered no evidence tocontradict the petitioners' proof that the petition to invalidate was served in a manner authorizedby the order to show cause.
With respect to the issue of whether service was completed within the period set forth inElection Law § 16-102 (2), "[a] proceeding with respect to a petition shall be institutedwithin fourteen days after the last day to file the petition, or within three business days after theofficer or board with whom or which such petition was filed, makes a determination of invaliditywith respect to such petition, whichever is later" (Election Law § 16-102 [2]). "Apetitioner raising a challenge [*2]under Election Law §16-102 must commence the proceeding and complete service on all the necessary parties withinthe period prescribed by Election Law § 16-102 (2)" (Matter of Wilson v Garfinkle, 5 AD3d 409, 410 [2004]; seeMatter of Green v Mahr, 230 AD2d 873, 874 [1996]). Here, the last day to file thedesignating petition was July 14, 2011, and all parties to the appeal agree that the last date tocommence the proceeding and complete service of the petition to invalidate was July 28, 2011.The respondent candidates contended before the Supreme Court that they did not receive copiesof the petition to invalidate until July 29, 2011. In opposition, the petitioners asked permission topresent evidence that copies of the petition to invalidate were actually delivered to therespondents by the United States Postal Service on July 28, 2011. The Supreme Court denied thepetitioners' request to present such evidence and, among other things, dismissed the proceedingon the ground that there was a jurisdictional defect. Since the petitioners should have beenafforded the opportunity to present evidence that service was completed within the periodprescribed by Election Law § 16-102 (2), we reverse the Supreme Court's final order,among other things, dismissing the proceeding, and remit the matter to the Supreme Court,Queens County, so that the petitioners may have an opportunity to do so (see Matter of Oberman v Romanowski,65 AD3d 992 [2009]; Matter of MacDougall v Board of Elections of City of N.Y.,133 AD2d 198 [1987]; see also Matter of Watch v Halloran, 87 AD3d 658 [2011][decided herewith]; Matter of Littlewort v Board of Elections in City of N.Y., 87 AD3d642 [2011] [decided herewith]) and, thereafter, if necessary, for further proceedings on thepetition to invalidate.
The parties' remaining contentions are without merit. Dillon, J.P., Florio, Lott and Cohen, JJ.,concur.