Galuski v. Tutunjian

133 A.D.2d 480, 519 N.Y.S.2d 155, 1987 N.Y. App. Div. LEXIS 49947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 3, 1987
• Status: Published

Opinion

Per Curiam.

Appeal from a judgment of the Supreme Court (McDermott, J.), entered August 19, 1987 in Rensselaer County, which dismissed petitioner’s application, in a proceeding pursuant to Election Law § 16-102, to declare valid the designating petition naming petitioner as the Republican candidate for the office of Councilman for the Troy City Council in the September 15, 1987 primary election.

Supreme Court properly dismissed this proceeding due to petitioner’s failure to timely serve the order to show cause and supporting papers pursuant to the terms of the order, which required that service be made upon respondents’ attorney on or before July 30, 1987. The affidavits before Supreme Court indicate that the papers were "secured * * * on the front door” of the attorney’s residence by a process server at about 11:30 p.m. on July 30, 1987 after another process server had failed to serve the attorney’s wife upon attempting service two hours earlier. The failure to deliver process to a person of suitable age and discretion at the dwelling place of the person to be served (see, CPLR 308 [2]), where such service could have been made with due diligence, precludes the later use of "affix and mail” service under CPLR 308 (4) (see, Rossetti v DeLaGarza, 117 AD2d 793; Weinberg v Hillbrae Bldrs., 58 AD2d 546; Levin v McGovern, 53 AD2d 1042). Accordingly, the judgment should be affirmed.

Judgment affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.