Davis v. Piggott

153 A.D.2d 718, 544 N.Y.S.2d 733, 1989 N.Y. App. Div. LEXIS 11008

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 23, 1989
• Status: Published

Opinion

In a proceeding, inter alia, to invalidate certificates designating various candidates for various public offices, Louis R. Del Santo and Kathleen Howard appeal from an order and judgment (one paper) of the Supreme Court, Dutchess County (Beisner, J.), entered August 17, 1989, which granted the application.

Ordered that the order and judgment is affirmed, without costs or disbursements.

At the outset we note that the instant proceeding was not jurisdictionally defective merely because the order to show cause provided that service upon the appellants be made pursuant to CPLR 308 on or before August 11, 1989, the last date upon which said proceeding could be timely commenced (see, Matter of Fuentes v D’Apice, 122 AD2d 904; Warner v Canary, 112 AD2d 1073).

Moreover, we find that the process server exercised due diligence in attempting to effectuate service on the appellant Kathleen Howard. The process server made four separate visits to Ms. Howard’s home. Two of the visits were in the evening, one was in the morning and the last was in the afternoon.

We agree with the Supreme Court that the appellant Del Santo had no authority to convene the subject caucus (see, Election Law § 6-108). Accordingly, the actions taken at that caucus were properly found to be null and void.

In light of the foregoing, we need not consider the appellants’ remaining contentions. Kunzeman, J. P., Eiber, Spatt, Harwood and Balletta, JJ., concur.