Opinion
August 26, 1992
Appeal from the Supreme Court, Suffolk County (Stark, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
In this case, the order to show cause by which the proceeding was commenced provided that service on the necessary party respondent was to be made by mailing a copy of the order to show cause on August 10, 1992, which was the last day on which to commence the proceeding. The order to show cause was returnable on August 17, 1992.
A proceeding pursuant to Election Law § 16-102 must be commenced "upon such notice to such * * * persons * * * as the court or justice shall direct" (Election Law § 16-116). This provision has been interpreted to require "actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced" (Matter of Moore v. Milhim, 109 A.D.2d 810; see also, Matter of King v. Cohen, 293 N.Y. 435, 439; Matter of Constantino, 286 N.Y. 681). Service by mail of the instrument of notice is not deemed complete if the person to be served did not actually receive delivery by the last day on which the proceeding could be commenced (see, Matter of Thompson v. New York State Bd. of Elections, 40 N.Y.2d 814, 815; Matter of Burton v. Coveney, 32 N.Y.2d 842; Matter of Moore v. Milhim, supra). Mangano, P.J., Thompson, Sullivan, Lawrence and Pizzuto, JJ., concur.