Lohmaier v. Ulster County Board of Elections

50 A.D.2d 1055, 377 N.Y.S.2d 726, 1975 N.Y. App. Div. LEXIS 12060

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1975
• Status: Published

Opinion

— Cross appeals from a judgment of the Supreme Court at Special Term, entered December 12, 1975 in Ulster County, which, in a proceeding pursuant to subdivision 4 of section 330 of the Election Law, granted certain items of relief sought in the petition and denied others and further denied a motion to dismiss the petition for lack of jurisdiction. We hold that the motion to dismiss should have been granted. It is not disputed that the victorious candidate in the challenged election herein was not properly served within the 20-day time limit of subdivision 4 of section 330 of the Election Law. Since he was a necessary party to the proceeding, this defect is noncurable, and the petition must be dismissed. (Matter of Ullman v Power, 17 AD2d 792, affd 12 NY2d 724; Matter of Suthergreen v Westfall, 6 AD2d 1014.) Judgment reversed, on the law, and petition dismissed, without costs. Greenblott, J. P., Sweeney, Main, Larkin and Reynolds, JJ., concur.