Ryan v. Carlo
| Decision Date | 14 February 1996 |
| Citation | 638 N.Y.S.2d 183,224 A.D.2d 804 |
| Parties | In the Matter of Charles W. RYAN, Respondent, v. Louis G. CARLO Jr., et al., Appellants, and Board of Elections of the State of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
De Graff, Foy, Holt-Harris, Mealey & Kunz, Albany and Thomas J. Spargo, East Berne, for appellants.
Cusick, Hacker & Murphy (Jeffrey T. Buley, of counsel), Latham, for Charles W. Ryan, respondent.
Patricia L. Murray, New York State Board of Elections, Albany, for Board of Elections of the State of New York, respondent.
Before CARDONA, P.J., and WHITE, CASEY, PETERS and SPAIN, JJ.
Appeal from a judgment of the Supreme Court (Hughes, J.), entered February 7, 1996 in Albany County, which, inter alia, granted petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the designating petition naming certain respondents as delegates and alternate delegates from the 24th Congressional District to the 1996 Republican National Convention in the March 7, 1996 primary election.
Petitioner, a registered Republican and resident of the 24th Congressional District, commenced this proceeding to invalidate the designating petition naming respondents Louis G. Carlo Jr., Shirley Dubois, Michael Bentley, James F. Brannon, Robert H. Scott and Rexford M. Ennis (hereinafter collectively referred to as respondents) as delegates and alternate delegates to the 1996 Republican National Convention supporting Steve Forbes as President of the United States. Respondents, in turn, commenced a proceeding to validate their petition. These proceedings were consolidated by Supreme Court, which ultimately invalidated the designating petition on the ground that 257 voters residing in the City of Watertown, Jefferson County, who signed the petition failed to specify the correct election district. Respondents appeal.
Initially, respondents assert two affirmative defenses. In the first, they contend that the petition should have been dismissed for lack of subject matter jurisdiction because petitioner failed to comply with the filing requirements of CPLR 304. We agree with Supreme Court that this defense lacks merit. CPLR 304 provides, in pertinent part, that "[a] special proceeding is commenced by filing a notice of petition or order to show cause and a petition with the clerk of the court in the county in which the special proceeding is brought". This provision has been held applicable to proceedings commenced under the Election Law and compliance therewith has been held jurisdictional in nature (see, Matter of Carnese v. Ferraro, 218 A.D.2d 770, 630 N.Y.S.2d 584, lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608, 655 N.E.2d 705; Matter of Zicari v. Stewart, 207 A.D.2d 951, 617 N.Y.S.2d 654). The term "filing" is defined as "delivery of the [notice of petition or order to show cause and petition] to the clerk together with any fee required" (CPLR 304; see, Enos v. City of Rochester, 206 A.D.2d 159, 161, 619 N.Y.S.2d 459).
Here, petitioner's attorney hand-delivered the order to show cause and petition, together with the appropriate filing fee, to an employee in the office of the Albany County Clerk. The employee took the check and instructed petitioner's attorney to take the papers to the clerk of the Supreme and County Courts across the hall, which petitioner's attorney did. Contrary to respondents' contention, the statute does not require that the notice of petition or order to show cause and petition be stamped by the County Clerk or placed on file under the assigned index number. CPLR 304 does not specify who must process the papers after their initial delivery to the County Clerk. We find, as did Supreme Court, that petitioner complied with the filing requirements of CPLR 304 so as to confer subject matter jurisdiction upon the court.
The next affirmative defense asserts that petitioner failed to join Forbes as a necessary party. We reject this...
To continue reading
Request your trial
-
Abramov v. Board of Assessors, Town of Hurley, Ulster County
...330, 653 N.Y.S.2d 82, 675 N.E.2d 836; Burrell v. Countrytowne Apt. Partnership, 247 A.D.2d 805, 669 N.Y.S.2d 430; Matter of Ryan v. Carlo, 224 A.D.2d 804, 638 N.Y.S.2d 183, lv. denied 87 N.Y.2d 808, 641 N.Y.S.2d 830, 664 N.E.2d This proceeding has been fraught with procedural irregularities......
-
Conti v. Clyne
...CPLR 304 and 2102 ( seeCPLR 304[c]; Matter of Resch v. Briggs, 51 A.D.3d 1194, 1196, 856 N.Y.S.2d 317 [2008]; Matter of Ryan v. Carlo, 224 A.D.2d 804, 804, 638 N.Y.S.2d 183 [1996], lv. denied87 N.Y.2d 808, 641 N.Y.S.2d 830, 664 N.E.2d 896 [1996]; compare Matter of Mendon Ponds Neighborhood ......
-
Ryan v. Carlo
...W. Ryan v. Louis G. Carlo, Jr., Board of Elections of State of New York NO. 212 Court of Appeals of New York Feb 15, 1996 224 A.D.2d 804, 638 N.Y.S.2d 183 MOTION FOR LEAVE TO GRANTED OR DENIED. Denied. ...