Rotanelli v. Bd. of Elections of Westchester Cnty.

• Decision Date: 15 August 2013
• Parties: In the Matter of Michael S. ROTANELLI, et al., appellants, v. BOARD OF ELECTIONS OF WESTCHESTER COUNTY, respondent, Ivy Reeves, respondent-respondent.
• Court: New York Supreme Court — Appellate Division

109 A.D.3d 562
970 N.Y.S.2d 471
2013 N.Y. Slip Op. 05657

In the Matter of Michael S. ROTANELLI, et al., appellants,
v.
BOARD OF ELECTIONS OF WESTCHESTER COUNTY, respondent,
Ivy Reeves, respondent-respondent.

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

Aug. 15, 2013.

[109 A.D.3d 562]In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a petition designating Ivy Reeves as a candidate in a primary election to be held on September 10, 2013, for the nomination of the Democratic Party as its candidate for the public office of City Council President of the City of Yonkers, the petitioners appeal, as limited by their brief, from so much of a final order of the Supreme Court, Westchester County (Connolly, J.), dated August 5, 2013, as, after a hearing, granted that branch of Ivy Reeves's motion which was to dismiss the proceeding based upon the failure to strictly comply with the service provisions of the order to show cause, and thereupon dismissed the proceeding.

ORDERED that the final order is affirmed insofar as appealed from, 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”[109 A.D.3d 563](Matter of Hennessey v. DiCarlo, 21 A.D.3d 505, 505, 800 N.Y.S.2d 576;see Matter of Nunziato v. Messano, 87 A.D.3d 647, 928 N.Y.S.2d 585;Matter of Gorman v. Board of Elections in City of New York, 76 A.D.3d 658, 905 N.Y.S.2d 778;Matter of Del Villar v. Vekiarelis, 59 A.D.3d 642, 643, 872 N.Y.S.2d 921). Service within the statutory period by means other than those authorized by the order to show cause does not bring a respondent within the court's jurisdiction ( see Matter of Bruno v. Ackerson, 51 A.D.2d 1051, 381 N.Y.S.2d 522). Here, the subject order to show cause provided that service thereof and of “the papers upon which it [was] granted” upon the candidate Ivy Reeves was to be effectuated by (1) “sending the same by overnight, next-day delivery by UPS, FEDEX or the U.S. Postal Service on or before the 22nd day of July, 2013”; “or” (2) “by personal delivery of the same to [Ivy Reeves] on or before July 23, 2013, no later than 7:00 p.m.” It is undisputed that the petitioners did not attempt to personally deliver the papers to Reeves, and that copies of both the order to show cause and petition to invalidate were not delivered to Reeves's address until July 24, 2013. The petitioners submitted evidence that, at 9:30...