Summary
holding that because the verification requirement was jurisdictional in nature, dismissal was required
Summary of this case from Rivera-Powell v. N.Y. City Bd. of ElectionsOpinion
August 23, 1985
Appeal from the Supreme Court, Columbia County (Hughes, J.).
These three proceedings were commenced to challenge a decision of the Columbia County Board of Elections which rejected petitioners' challenges to the petitions designating respondents Marcia A. Anderson, Edwin Simonsen, Donald J. Kirsch, Lawrence F. Novak and Theresa M. Fischer as candidates for the party positions of Members of the Columbia County Democratic Committee and to remove said respondents' names from the official primary election ballots as candidates at the Democratic primary election to be held September 10, 1985. Each special proceeding was commenced by timely service of an order to show cause together with a petition and supporting affidavit. When it was discovered that the petition served in each proceeding had not been verified as required by Election Law § 16-116, amended petitions with verifications, together with ex parte orders (signed by the Justice who had issued the original orders to show cause) allowing the verifications to be added nunc pro tunc, were served on July 30, 1985. Special Term granted respondents' motion in each proceeding to dismiss on the ground that jurisdiction did not lie since the original petitions served had not been verified prior to the expiration of the 14-day Statute of Limitations on July 25, 1985, relying on the Court of Appeals decision in Matter of Goodman v. Hayduk ( 45 N.Y.2d 804). The factual pattern in the instant cases are virtually identical. The petitions were not verified as mandated by statute (Election Law § 16-116), a requirement jurisdictional in nature which cannot be cured by amendment ( Matter of Goodman v. Hayduk, 64 A.D.2d 937, 938, affd 45 N.Y.2d 804). The special proceedings were therefore not timely commenced and dismissal was proper ( Matter of Goodman v. Hayduk, 45 N.Y.2d 804, 806, supra).
Orders affirmed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.