Angletti v. Morreale

• Decision Date: 19 August 2015
• Docket Number: 884 CAE 15-01319
• Parties: In the Matter of Frances J. ANGLETTI, Petitioner–Respondent, v. Marcus MORREALE, Respondent–Appellant, Lora Allen and Jennifer Fronczak, as Commissioners Constituting Niagara County Board of Elections, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 808

15 N.Y.S.3d 532

2015 N.Y. Slip Op. 06616

In the Matter of Frances J. ANGLETTI, Petitioner–Respondent

v.Marcus MORREALE, Respondent–Appellant

Lora Allen and Jennifer Fronczak, as Commissioners Constituting Niagara County Board of Elections, Respondents–Respondents.

884 CAE 15-01319

Supreme Court, Appellate Division, Fourth Department, New York.

Aug. 19, 2015.

Joseph F. Townsend, Lockport, Jerome D. Schad, Williamsville, for Respondent–Appellant.

Law Office of Shawn P. Nickerson, North Tonawanda (Shawn P. Nickerson of Counsel), for Petitioner–Respondent.

Claude A. Joerg, County Attorney, Lockport (Joseph Burns of Counsel), for Respondents–Respondents.

PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, VALENTINO, AND DeJOSEPH, JJ.

OpinionMEMORANDUM:

Marcus Morreale (respondent) appeals from an order granting the petition and directing respondent Commissioners of the Niagara County Board of Elections (Board) to strike respondent from the Ballot for the 2015 primary and general elections as a Democratic Party candidate for the office of Niagara County Legislator, Eighth District (County Legislator office). We affirm.

On July 8, 2015, a designating petition was filed with the Board purporting to designate respondent as a Democratic Party candidate for the County Legislator office. Respondent declined the designation, but the committee to fill vacancies subsequently designated respondent—apparently with his consent—as the substitute candidate for the vacancy he himself had created by initially declining the designation (see generally Election Law § 6–148[1] ).

Petitioner filed a formal objection to the substitution with the Board, but the Board rejected the objection. Petitioner then commenced the instant proceeding pursuant to Election Law § 16–102, seeking to invalidate the certificate of substitution. The petition was verified by petitioner's attorney, who admittedly has offices in Niagara County, where petitioner resides. Supreme Court subsequently granted the petition, holding that the Election Law did not permit a committee to fill vacancies to designate a substitute candidate whose own declination caused the vacancy at issue.

The petition filed in the County Clerk's Office was verified by petitioner's attorney, whose office was in Niagara County (see CPLR 3020[d][3] ). As a preliminary matter, we reject respondent's contention that the verification of the petition by petitioner's attorney constitutes a jurisdictional defect (see Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906 ; People ex rel. New York City Omnibus Corp. v. Miller, 282 N.Y. 5, 9, 24 N.E.2d 722 ). We note that respondent did not waive that contention by failing to exercise his right to treat the petition as a nullity (see CPLR 3022 ). Respondent could not have objected to the alleged improper verification by returning the petition to petitioner's attorney with due diligence and with notification of his reason for doing so inasmuch as the petition served on respondent was verified by petitioner himself (cf. Lepkowski v. State of New York, 1 N.Y.3d 201, 210, 770 N.Y.S.2d 696, 802 N.E.2d 1094 ). Even assuming, arguendo, that the verification of petitioner's attorney was improper because petitioner was in “the county where the attorney has his office” (CPLR 3020[d][3] ), we conclude that “any defect in the verification of the petition ‘should be ignored inasmuch as [respondent] failed to demonstrate that [he] was substantially prejudiced by the alleged defect’ ” (Matter of Perez v. Perez, 71 A.D.3d 1496, 1496, 895 N.Y.S.2d 904, lv. denied 14 N.Y.3d 714, 2010 WL 2400472 ).

We reject respondent's further contention that the petition was not timely served. In the order to show cause accompanying the petition, the court authorized service by any of 10 enumerated methods, including, as relevant to this appeal, “by affixing the [commencement papers] to the outer or inner door of [his] residence ... AND by enclosing the same in a securely sealed and duly prepaid wrapper, addressed to [respondent] at the address set forth in [the] designating petition, and depositing the same with a depository of the United States Postal Service [USPS] via Express Mail on or before the 23rd day of July, 2015. ” It is undisputed that July 23, 2015 was the last day on which to commence the proceeding. The record establishes that the commencement papers were affixed, i.e., “nailed,” to the door of respondent's residence on July 22, 2015, and the commencement papers were mailed to respondent's residence by USPS “Express Mail” on July 23, 2015.

In a proceeding under article 16 of the Election Law, the petitioner must satisfy two distinct service requirements. First, the petitioner must provide “such notice to [the respondent or respondents] as the court or justice shall direct” (§ 16–116). Here, there is no dispute that petitioner “ ‘strictly complied with’ ” the court's service directions (Matter of Grimaldi v. Board of Elections of the State of N.Y., 95 A.D.3d 1644, 1646, 945 N.Y.S.2d 489 ; see Matter of O'Daniel v. Hayduk, 59 A.D.2d 706, 707, 398 N.Y.S.2d 357, affd. for reasons stated 42 N.Y.2d 1062, 399 N.Y.S.2d 654, 369 N.E.2d 1187 ). As noted above, the commencement papers were affixed to the door of respondent's residence on July 22, 2015, and they were mailed to respondent's residence by USPS Express Mail on July 23, 2015. Thus, both the mailing and the “nailing” occurred “on or before the 23rd day of July, 2015” as directed by the court.

Second, the petitioner must effectuate “ ‘actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced’ ” (Matter of Yellico v. Ringer, 185 A.D.2d 965, 966, 586 N.Y.S.2d 836 ; see Matter of Riley v. Democratic Party of Owasco, 21 A.D.3d 708, 709, 800 N.Y.S.2d 258, lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 800, 835 N.E.2d 660 ). In other words, the respondents must “receive delivery” of the order to show cause and the verified petition “within the [statute of limitations] period” (Matter of Thompson v. New York State Bd. of Elections, 40 N.Y.2d 814, 815, 387 N.Y.S.2d 567, 355 N.E.2d 796 ). That requirement operates irrespective of the court's specific service directions under section 16–116 (see Matter of Rotanelli v. Westchester County Bd. of Elections, 41 Misc.3d 254, 261, 969 N.Y.S.2d 901, affd. 109 A.D.3d 562, 970 N.Y.S.2d 471 ; Matter of Davis v. McIntyre, 43 A.D.3d 636, 636–637, 841 N.Y.S.2d 423 ).

Contrary to the view of our dissenting colleagues, we conclude that petitioner effectuated “actual delivery” of the commencement papers when they were affixed to respondent's front door. It is well established that because “the [commencement] papers were timely affixed to the front door, the fact that the papers mailed were not received on [or before the statute of limitations date] was not a jurisdictional defect” (Matter of O'Connor v. Power, 30 A.D.2d 926, 926, 294 N.Y.S.2d 324, affd. 22 N.Y.2d 889, 294 N.Y.S.2d 100, 241 N.E.2d 135 ; see Matter of Weill v. Erickson, 49 A.D.2d 895, 897, 373 N.Y.S.2d 370, affd. 37 N.Y.2d 851, 378 N.Y.S.2d 39, 340 N.E.2d 473 ; Matter of Serri v. Heffernan, 298 N.Y. 629, 629–631, 81 N.E.2d 371 ; Matter of Marcoccia v. Garfinkle, 307 A.D.2d 1010, 1010–1011, 763 N.Y.S.2d 506, lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 162, 798 N.E.2d 346 ). In fact, respondent's argument to the contrary is indistinguishable from the dissent at the Court of Appeals in Serri, which, citing Matter of King v. Cohen, 293 N.Y. 435, 57 N.E.2d 748 —a 1944 case predating New York's commencement-by-filing system and thus of dubious precedential value—argued that service was untimely when both the nailing and the mailing were not completed within the statute of limitations period (298 N.Y. at 631, 81 N.E.2d 371 [Conway and Dye, JJ., dissenting] ).

Although respondent concedes that O'Connor and similar cases are directly on point, he contends that O'Connor was overruled by Matter of Buhlmann v. Le Fever, 54 N.Y.2d 775, 443 N.Y.S.2d 154, 426 N.E.2d 1184, affg. for reasons stated 83 A.D.2d 895, 442 N.Y.S.2d 529. We reject that contention. The issue in O'Connor was whether a last-day “nailing” satisfied the King requirement even if the corresponding mailing could not have arrived within the statute of limitations period, and the Court determined that it did. The Court in Buhlmann, on the other hand, never considered that issue, presumably because the commencement papers in that case were nailed to the “outside wall” of the respondent's residence (83 A.D.2d at 896, 442 N.Y.S.2d 529 ), not to the “door” as directed by CPLR 308(4). Buhlmann thus considered only whether a last-day mailing could, by itself, satisfy the King requirement, and the Court held that it could not. Buhlmann is therefore distinguishable from O'Connor, as well as from the facts of this case.

Contrary to respondent's assertion, neither Matter of Ehle v. Wallace, 195 A.D.2d 1086, 1086, 602 N.Y.S.2d 563, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303, nor Davis, 43 A.D.3d at 637, 841 N.Y.S.2d 423, supports reversal. Unlike respondent here, the respondents in those cases did not receive the commencement papers on or before the expiration of the statute of limitations period.

Finally, turning to the merits, we conclude that the court properly determined that the committee to fill vacancies was properly barred from designating respondent to fill a vacancy created by his own declination. “The Election Law plainly contemplates that the candidate designated to fill a vacancy shall be a person other than the person originally named” (Matter of Nestler v. Cohen, 242 App.Div. 726, 726, 273 N.Y.S. 923 ). It therefore necessarily follows that a person who creates a vacancy by his or her own declination cannot thereafter be designated by the committee to fill vacancies as the substitute designee for the very same position (see Matter of Garfinkel v. Power, 208 Misc. 719, 720, 144 N.Y.S.2d 796...