Visconti v. Paino

• Decision Date: 03 November 1987
• Citation: 137 Misc.2d 1,520 N.Y.S.2d 113
• Parties: June VISCONTI, Petitioner, v. Irene M. PAINO, candidate for nomination by the Republican Party for public office of Supervisor; Elaine H. Snowden, a candidate for nomination by the Republican Party for the public office of Town Clerk; Carl S. Wolfson, a candidate for nomination by the Republican Party for the public office of Town Justice; Robert Valdati, a candidate for nomination by the Republican Party for the public office of Councilman; David E. Reis, a candidate for nomination by the Republican Party for the public office of Councilman; Vincent G. Farina, a candidate for nomination by the Republican Party for the public office of Councilman; Constance O. Smith, a candidate for nomination by the Republican Party for the public office of Councilman; and Kenneth T. Croshier, a candidate for nomination by the Republican Party for the public office of Superintendent of Highways, in the General Election to be held on
• Court: New York Supreme Court

Page 113

520 N.Y.S.2d 113

137 Misc.2d 1

June VISCONTI, Petitioner, v. Irene M. PAINO, candidate for nomination by the Republican Party for public office of Supervisor; Elaine H. Snowden, a candidate for nomination by the Republican Party for the public office of Town Clerk; Carl S. Wolfson, a candidate for nomination by the Republican Party for the public office of Town Justice; Robert Valdati, a candidate for nomination by the Republican Party for the public office of Councilman David E. Reis, a candidate for nomination by the Republican Party for the public office of Councilman; Vincent G Farina, a candidate for nomination by the Republican Party for the public office of Councilman; Constance O. Smith, a candidate for nomination by the Republican Party for the public office of Councilman; and Kenneth T. Croshier, a candidate for nomination by the Republican Party for the public office of Superintendent of Highways, in the General Election to be held on November 3, 1987 and Nicholas S Johnson, Albert Roberts, Mary Kaye Dolan, and Bernice R Mills constituting the Committee to Fill Vacancies and Joseph Polucci and Walter Jablonski, Commissioners of Elections, constituting the Board of Elections, Respondents. For an Order invalidating and declaring null and void the Certificate of Nominations and Republican Party caucus for the Town of Wappinger, purporting to nominate the aforesaid candidates of the Republican party for the aforesaid public offices, to be voted for at the General Election to be held on November 3, 1987.

Supreme Court, Dutchess County.

Oct. 2, 1987.

Jode Susan Millman, Poughkeepsie, for petitioner.

Anthony De Rosa, Sr. Asst., Dutchess County Dept. of Law, Poughkeepsie, for respondent, Bd. of Elections.

Patrick J. Mackrell, Herzog, Engstrom, Burke, Koplovitz, Cavalier & Lyman, P.C., Albany, for respondent, Paino.

Corbally, Gartland & Rappleyea, Poughkeepsie, for respondents other than Paino.

S. BARRETT HICKMAN, Justice.

In this election proceeding commenced by order to show cause pursuant to Election Law § 16-102, petitioner seeks a judgment declaring invalid the Republican Party caucus for the Town of Wappinger and the corresponding certificate of nominations, filed with the Dutchess County Board of Elections on August 28, 1987, purporting to nominate Republican party candidates for various positions in the Town of Wappinger, New York.

The court has determined that the proceeding was not timely commenced, and that the court therefore lacks jurisdiction to decide the issues presented herein.

On August 18, 1987, at approximately 7:00 P.M., the Town of Wappinger Republican Committee held "party district caucuses" in each of four wards "for the purpose of electing delegates to the Town of Wappinger Republican Convention" (Pet.Ex. D; Published Notice dated August 5, 1987). Thereafter, at approximately 8:15 P.M., the Committee conducted "a convention of Elected Delegates for the purpose of nominating candidates for the Town of Wappinger offices" involved in this proceeding (Id.). The certificate of nominations culminating from this procedure was filed on August 28, 1987, and petitioner thereafter timely filed general and specific objections pursuant to Election Law § 6-154. By letter dated September 11, 1987, the Board of Elections notified petitioner that it would not sustain the objections on the grounds that the certificate of nominations was valid on its face and that the Board had no authority beyond this ministerial determination.

JURISDICTION

This proceeding presents a complex threshold issue involving the interaction between relevant portions of the Election Law, CPLR and the Uniform Civil Rules for the Supreme Court and the County Court. Respondents maintain that this proceeding was not timely commenced and that, as a consequence, it is jurisdictionally defective. The court must agree.

Election Law § 16-102(2) provides, in pertinent part, that a proceeding such as the instant one "shall be instituted ... within 10 days after ... the filing of the certificate of nominations made at such caucus...." (Id.). The nominating certificate at issue was filed on August 28, 1987, making September 8, 1987 the outside date on which to commence this proceeding. On September 4 and September 8, 1987, petitioner's order to show cause was presented respectively to several Supreme Court Justices in Dutchess County for signature. These justices all disqualified themselves and the papers thereafter came before the undersigned during a conference held on September 10, 1987. At that conference the court deemed it an equitable and proper exercise of judicial discretion to sign the order to show cause nunc pro tunc as of September 4, 1987, the date when the order would have presumably been signed absent the disqualifications. However, a stipulation was placed on the record which expressly reserved determination of the jurisdictional issue. The court now reaches that issue.

It is well settled that the failure of an objector to commence an election proceeding within the statutory period is a fatal jurisdictional defect (Matter of Goodman v. Hayduk, 45 N.Y.2d 804, 409 N.Y.S.2d 7, 381 N.E.2d 165; Matter of Bruno v. Peyser, 40 N.Y.2d 827, 387 N.Y.S.2d 563, 355 N.E.2d 792; but, see, Matter of Sagendorf v. Monahan, 49 A.D.2d 960, 961, 374 N.Y.S.2d 94). While an exception to the general rule has been carved out with respect to candidates (see, Matter of Pell v. Coveney, 37 N.Y.2d 494, 373 N.Y.S.2d 860, 336 N.E.2d 421), such exception does not apply to objectors (Blenman v. Herron, 51 N.Y.2d 750, 432 N.Y.S.2d 367, 411 N.E.2d 786; Matter of Thompson v. Wallace, 45 N.Y.2d 803, 409 N.Y.S.2d 6, 381 N.E.2d 164). Absent a showing that the proceeding was properly commenced, or that the jurisdictional problem is otherwise cured, this court is compelled to dismiss the petition for lack of jurisdiction.

A special proceeding "is commenced and jurisdiction acquired by service of a notice of petition or order to show cause" (CPLR 304 [emphasis supplied] ). The court is aware that Election Law § 16-116 states, in pertinent part, that an election proceeding shall be heard "... upon such notice to such officers, persons or committees as the court or justice shall direct, and shall be summarily determined." While this section provides a petitioner with the opportunity to obtain jurisdiction by means of alternate service, the timeliness of service is an indispensible requirement (Matter of Lamb v. Gada, 1 Misc.2d 398, 401, 146 N.Y.S.2d 99, affd. 1 A.D.2d 954, 150 N.Y.S.2d 323; Matter of Tenneriello v. Board of Elections, 125 Misc.2d 190, 479 N.Y.S.2d 328, revd. on other grounds 104 A.D.2d 467, 479 N.Y.S.2d 72; compare, Matter of Tamney v. Atkins, 151 A.D. 309, 136 N.Y.S. 865, revd. on other grounds 209 N.Y. 202, 102 N.E. 567). It is uncontested that the order to show cause commencing the instant proceeding was not served prior to September 10, 1987, two (2) days after expiration of...