Ehle v. Wallace

195 A.D.2d 1086, 602 N.Y.S.2d 563

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1993
• Status: Published

Opinion

Order insofar as appealed from unanimously reversed on the law without costs, motion granted and petition dismissed. Memorandum: Pursuant to Election Law § 16-102 (2), petitioner was required to commence the proceeding within 10 days of the filing of the Certificate of Nomination or no later than May 21, 1993. On May 21, 1993, petitioner obtained and filed an order to show cause, but it was not served on respondent Andrew N. Piraino until May 25, 1993. Applying CPLR 304 as amended, Supreme Court concluded that this proceeding was timely commenced because the order to show cause was filed on May 21, 1993. Notwithstanding the provisions of the CPLR, the Election Law specifically provides when an action is commenced. Election Law § 16-116 (formerly Election Law § 335) provides that a respondent is entitled to notice of the proceeding "as the court or justice shall direct”. That requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced (Matter of King v Cohen, 293 NY 435, 439; see also, Matter of Moore v Milhim, 109 AD2d 810). Because respondent was not served with the order to show cause until after that date, his motion to dismiss must be granted.

We have examined respondent’s remaining contention and find it to be without merit. (Appeal from Order of Supreme Court, Onondaga County, Pooler, J.—Election Law.) Present— Denman, P. J., Callahan, Boomer, Davis and Boehm, JJ. (Filed June 29, 1993.)