Hinkley v. Egan

• Citation: 696 N.Y.S.2d 383
• Parties: In the Matter of Patrick J. HINKLEY, Petitioner, v. William EGAN et al., Respondents.
• Decision Date: 13 August 1999
• Court: United States State Supreme Court (New York)

Page 383

696 N.Y.S.2d 383

In the Matter of Patrick J. HINKLEY, Petitioner, v. William EGAN et al., Respondents.

Supreme Court, Dutchess County, New York.

Aug. 13, 1999.

Gellert & Cutler, P.C., Poughkeepsie (Christine A. Sproat of counsel), for petitioner.

Ian G. MacDonald, County Attorney of Dutchess County, Poughkeepsie (Ronald L. Wozniak of counsel), for respondents.

John C. Lentz, respondent pro se.

JOHN R. LaCAVA, J.

Petitioner Patrick J. Hinkley commenced this proceeding to invalidate the petition designating respondent John C. Lentz as the Democratic Party candidate for the Dutchess County Legislature, District # 5.

At the outset and to the extent objected to by Mr. Lentz, the Court finds that it has jurisdiction over him. As provided by the order to show cause allowed by this Court on July 29, 1999, petitioner "personally" served (see, CPLR 308) Mr. Lentz with a copy of the order to show cause and the papers upon which it is based when, on July 30, 1999, a process server left a copy of same with Mr. Lentz's mother, Florence Lentz, at Mr. Lentz's residence after having waited for Mr. Lentz to arrive between the hours of 5:00 P.M. and 10:45 P.M. (See, CPLR 308 ). Service was complete when, on August 3, 1999, the substituted service was followed up by a mailing to his residence.

The dispositive issue in this case is whether placing "Poughkeepsie" under the column in the designating petition asking for "Town or City", without specifying whether it is the City or the Town of Poughkeepsie violates section 6-130 of the Election Law. The Court finds that it does not.

Section 6-130 of the Election Law requires, among other things, that signers of designating petitions indicate their "town or city." While it is well established that "[t]he failure of the signers to provide the 'town or city' of residence is a fatal defect and renders the designating petition invalid" (Matter of Scamacca v. Mahoney, 104 A.D.2d 730, 480 N.Y.S.2d 637 [4th Dept., 1984] citing Matter of McKeever v. Hornidge, 306 N.Y. 876, 119 N.E.2d 45 and Matter of Frome v. Board of Elections, 57 N.Y.2d 741, 742, 454 N.Y.S.2d 978, 440 N.E.2d 1325), the same cannot be said about one's failure to specify whether the "town or city" filled in on the petition is that of the city or the town which share the name, such as Poughkeepsie, Such a designation, perhaps preferred, is not required under Election Law § 6-130. While the failure to distinguish between the respective city or town...