Bruno v. Ackerson

51 A.D.2d 1051, 381 N.Y.S.2d 522, 1976 N.Y. App. Div. LEXIS 11871

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1976
• Status: Published

Opinion

In a proceeding to invalidate petitions designating appellant Irving H. Greenwald as a candidate in the Republican Party primary election to be held on April 6, 1976 for the party position of State Committeeman in the 95th Assembly District, Rockland County, the appeal, as limited by appellant’s note of issue, is from an order of the Supreme Court, Rockland County, dated March 15, 1976, which denied appellant’s cross motion to dismiss the proceeding as untimely and for lack of jurisdiction. Order reversed, on the law, without costs or disbursements, and cross motion granted. The findings of fact are affirmed. The order to show cause and supporting papers which commenced the instant proceeding provided, inter alia, for service upon the appellant by (1) placing the said papers in the mail, and (2) affixing the order to show cause to the outer door of appellant’s residence, both to be done on or before March 4, 1976. Petitioner mailed the papers on March 4, 1976. However, instead of aflixing the order to show cause to the outer door of appellant’s residence as required by the terms of the order to show cause, petitioner had it personally delivered to appellant’s wife at appellant’s residence. While it can be argued that the latter method of service utilized by petitioner was a better mode of service (see CPLR 308, subd 2), the mode of service provided for in the order to show cause was jurisdictional in nature, and must be complied with (see Election Law, § 335). Accordingly, appellant’s cross motion to dismiss this proceeding for lack of jurisdiction should have been granted. Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Hawkins, JJ., concur.