Matter of Moore
v.
Milhim

Appellate Division of the Supreme Court of New York, Second DepartmentMar 12, 1985
109 A.D.2d 810 (N.Y. App. Div. 1985)

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March 12, 1985

Appeal from the Supreme Court, Nassau County (Morrison, J.).


Judgment affirmed insofar as appealed from, without costs or disbursements.

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). The Court of Appeals has held that this provision requires actual delivery of the instrument of notice not later than the last day on which the proceeding may be commenced ( see, Matter of King v. Cohen, 293 N.Y. 435, 439; Matter of Constantino, 286 N.Y. 681). In a proceeding such as this, service by mail of the instrument of notice is not deemed complete so long as the persons to be served did not actually receive delivery ( 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). In this case, the order to show cause by which proceeding No. 1 was commenced provided that service on certain necessary parties was to be made by mailing a copy of the order to show cause on March 5, 1985, which was the last day to commence the proceeding. The order to show cause was returnable on March 6, 1985. Special Term properly held that such service was not reasonably calculated to give these necessary parties timely notice of the proceeding, and, therefore, dismissed the proceeding ( Matter of Floyd v. Coveney, 83 A.D.2d 897; Matter of Buhlmann v. LeFever, 83 A.D.2d 895, affd 54 N.Y.2d 775; Matter of Butler v. Gargiulo, 77 A.D.2d 939). We also note that the participation in the proceeding by the candidates' attorneys, who raised the issue of proper service, did not constitute a waiver of that jurisdictional objection ( Matter of Miranda v. Erie County Bd. of Elections, 59 A.D.2d 643; cf. Matter of Gregory v Board of Elections, 93 A.D.2d 894, affd 59 N.Y.2d 668). We pass on no other issue. Mangano, J.P., Thompson, Brown and Lawrence, JJ., concur.