Zaretski v. Tutunjian
| Decision Date | 21 October 1987 |
| Parties | In the Matter of Mark ZARETSKI, et al., Respondents, v. Henry G. TUTUNJIAN, as Commissioner of the Rensselaer County Board of Elections, et al., Appellants, et al., Respondent. |
| Court | New York Supreme Court — Appellate Division |
David L. Gruenberg, Troy, for appellants, et al., respondent.
Thomas V. Kenney, Jr., Troy, for respondents.
Before MAHONEY, P.J., and CASEY, WEISS, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the Supreme Court (Travers, J.), entered October 13, 1987 in Rensselaer County, which granted petitioners' application, in a proceeding pursuant to Election Law § 16-102, to declare invalid the independent nominating petition naming respondent William Saunders as the Independent Taxpayers candidate for the office of Town Supervisor, Town of Schaghticoke in the November 3, 1987 general election.
On August 18, 1987, an independent nominating petition was filed with the Rensselaer County Board of Elections naming respondent William Saunders as the Independent Taxpayers candidate for the office of Town Supervisor, Town of Schaghticoke. Petitioners, Mark Zaretski, the Democratic Party incumbent and candidate for the office at issue, and Maveret Daigle, Town Chairperson of the Democratic Committee of the Town of Schaghticoke, filed specific objections to the nominating petition with the Board on August 27, 1987. On August 31, 1987, respondents Henry G. Tutunjian and Thomas W. Wade, Commissioners of the Board, ruled on the objections, with Wade voting to invalidate the petition and Tutunjian voting to sustain it. This stalemate effectively served to validate the nominating petition.
Petitioners, by order to show cause obtained August 31, 1987, commenced the instant proceeding pursuant to Election Law § 16-102 to invalidate the nominating petition. By its terms, the order to show cause directed that service by "any method allowed by CPLR 308 be deemed good and sufficient service if made by 12:00 midnight on September 1, 1987 upon the respondents". The service date of September 1, 1987 corresponded to the 14-day limitations period set forth in Election Law § 16-102(2). Petitioners attempted to serve Saunders pursuant to CPLR 308(2). The order to show cause and petition were delivered to Saunders' home and service was made upon his daughter on September 1, 1987, but copies of the papers were not mailed to Saunders until September 2, 1987, one day after the time limit specified in the order to show cause and mandated by the Election Law.
To complete service, petitioners were required to effectuate the two-step procedure set forth in CPLR 308(2), by both delivery and mailing, by September 1, 1987. The failure to do so rendered the service ineffective (see, Furey v. Milgrom, 44 A.D.2d 91, 92-93, 353 N.Y.S.2d 508, lv. denied 34 N.Y.2d 517, 358 N.Y.S.2d 1026, 316 N.E.2d 351; Siegel, NY Prac § 72, at 78). Since petitioners failed to comply with the provisions for service specified in the order to show cause and failed to commence this proceeding within the 14-day period, the petition must be dismissed as untimely (see, Matter of Sorli v. Coveney, 51 N.Y.2d 713, 714, 431 N.Y.S.2d 1001, 410 N.E.2d 1228; Matter of Thompson v. Wallace, 45 N.Y.2d...
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...of Medina v. Perales, 138 Misc.2d 1010, 525 N.Y.S.2d 991). In so doing we note that our prior decision in Matter of Zaretski v. Tutunjian, 133 A.D.2d 928, 521 N.Y.S.2d 116, because it involved an Election Law proceeding and the brief Statutes of Limitation associated therewith, is factually......
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