Levy v. Nassau County Board of Elections

208 A.D.2d 786, 617 N.Y.S.2d 650

Opinion

In a proceeding pursuant to Election Law article 16 to invalidate the Republican Party primary election that was held on September 13, 1994, for the public office of Member of Congress for the Fourth Congressional District in Nassau County and to order a new primary election, the petitioner appeals from an order of the Supreme Court, Nassau County (Winick, J.), entered October 11, 1994, which, inter alia, dismissed the petition as time-barred.

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

Election Law § 16-102 (2) specifically states, inter alia, that "[a] proceeding with respect to a primary * * * shall be instituted within ten days after the holding of such primary.” In this case, it is undisputed that the petitioner, David Levy, did not file his petition until September 28, 1994, more than 10 days after the primary was held on September 13, 1994. Thus, the Supreme Court properly dismissed the petition as untimely (see, Matter of Voyticky v Gore, 134 AD2d 354).

In light of our determination, we do not reach the issue of whether, on the merits, the petitioner is entitled to a new primary election. Mangano, P. J., Thompson, Sullivan and Miller, JJ., concur.