| Matter of Kiernan v New York State Bd. of Elections |
| 2012 NY Slip Op 04113 [95 AD3d 1242] |
| May 29, 2012 |
| Appellate Division, Second Department |
| In the Matter of Matthew J. Kiernan, Appellant, v NewYork State Board of Elections, Respondent-Appellant, and Anthony Eric Tolda,Respondent. |
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In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petitiondesignating Anthony Eric Tolda as a candidate in a primary election to be held on June 26, 2012,for the nomination of the Republican Party as its candidate for the public office of Representativein Congress from the 3rd Congressional District, the petitioner appeals, and the New York StateBoard of Elections separately appeals, from a final order of the Supreme Court, Nassau County(Marano, J.), dated May 8, 2012, which treated the cross claim of Anthony Eric Tolda to validatehis designating petition as a cross petition to validate the designating petition, granted the "crosspetition," and directed the New York State Board of Elections to place the name of Anthony EricTolda on the Republican primary election ballot for the public office of Representative inCongress from the 3rd Congressional District.
Ordered that the final order is reversed, on the law, without costs or disbursements, and thecross claim is dismissed.
Matthew J. Kiernan commenced this proceeding on April 26, 2012, by order to show cause,inter alia, to invalidate the designating petition of Anthony Eric Tolda. However, Kiernan failedto serve copies of the order to show cause and petition upon the New York State Board ofElections (hereinafter the Board) consistent with the directives contained in the order to showcause. On May 4, 2012, the Board administratively invalidated Tolda's designating petition onthe basis that it was not timely filed with the Board. Tolda served a verified answer, in which across claim to validate his designating petition was asserted against the Board. Tolda neversought leave of the court to file his cross claim. On the return date of Kiernan's petition, Kiernanadmitted to his failure to complete service upon the Board within the time limit set forth in theorder to show cause, and contended that since the proceeding was not properly initiated, Toldacould not proceed with his cross claim. Tolda sought to proceed on his cross claim to validate hisdesignating petition, and argued that his designating petition was timely filed with the Boardpursuant to Election Law § 1-106. The Supreme Court treated Tolda's cross claim tovalidate his designating petition as a cross petition to validate his designating petition and, interalia, granted the "cross petition."
A special proceeding commenced pursuant to Election Law article 16 must be heard uponsuch notice to such officers, persons, or committees as the court or justice may direct (seeElection Law § 16-116). Since strict compliance with the service provisions of the order toshow [*2]cause is jurisdictional in nature, the Supreme Court heredid not have jurisdiction to entertain the proceeding (see Election Law § 16-116;Matter of Haggerty v Queens CountyRepublican Comm., 92 AD3d 681 [2012]; Matter of Gorman v Board of Elections in the City of N.Y., 76 AD3d658 [2010]; Matter of Caruso v Nassau County Bd. of Elections, 186 AD2d 701[1992]). Since the Supreme Court lacked jurisdiction to entertain the proceeding, the cross claimasserted in that proceeding also should have been dismissed (see Krisilas v Mount Sinai Hosp., 63 AD3d 887 [2009];McMullen v Arnone, 79 AD2d 496, 499 [1981]). We note that, although the SupremeCourt treated Tolda's cross claim to validate his designating petition as a cross petition to validatehis designating petition, Tolda did not take any of the procedural steps necessary to commence anindependent proceeding pursuant to Election Law § 16-102 for that relief, and did notcomply with the service of process requirements applicable to such proceedings, and, thus, hisrequest for that relief had none of the incidents of a properly commenced Election Law §16-102 proceeding (see Election Law § 16-116; Matter of Brown v Smith, 76 AD3d 939, 940 [2010]; Matter of White v Bilal, 21 AD3d573, 574 [2005]).
The appellants' remaining contentions either are without merit or need not be reached in lightof our determination. Dillon, J.P., Belen, Chambers and Hall, JJ., concur.