Matter of Sloan v. Berger

Opinion

Matter of Sloan v Berger

2026 NY Slip Op 05057

August 20, 2026

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Todd Sloan, Appellant,

v

Henry T. Berger et al., as Commissioners of the New York State Board of Elections, Respondents, and Bonnie E. Ross, Respondent.

Decided and Entered:August 20, 2026

CV-26-1302

Calendar Date: August 19, 2026

Before: Garry, P.J., Fisher, Powers, Corcoran And Ryba, JJ.

Todd Sloan, Auburn, appellant pro se.

Fusco Law Office, Albany (Adam Fusco of counsel) and John Ciampoli, Massapequa, for Bonnie E. Ross, respondent.

[*1]

Per Curiam.

Appeal from a judgment of the Supreme Court (Kimberly O'Connor, J.), entered August 3, 2026 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to Election Law § 16-102, to declare valid the independent nominating petition naming petitioner as the candidate of the independent body known as Upstate for the public office of Member of Congress for the 24th Congressional District in the November 3, 2026 general election.

Petitioner filed with the State Board of Elections an independent nominating petition naming him as the candidate of the independent body known as Upstate for the public office of Member of Congress for the 24th Congressional District in the November 3, 2026 general election. In response to objections filed by respondent Bonnie E. Ross, on July 2, 2026 the Board found 1,641 of the signatures invalid, rendering the nominating petition invalid because it was short 23 signatures from the 3,500 required. That same day, petitioner commenced this proceeding challenging the Board's determination by filing a petition and proposed order to show cause. On July 6, Supreme Court signed an order to show cause noting that the deadline to commence the proceeding was July 8, and ordering service by July 10 on respondents Commissioners of the Board of Elections by email to a specific address and on Ross at her residence address by either delivery to a person of suitable age and discretion, together with mailing by first class mail and overnight delivery, or by personal delivery to her. The court struck or limited several other proposed methods of service.

On July 7, 2026, petitioner emailed the petition and accompanying papers to the specified address for the Commissioners, and the Board's counsel sent an email acknowledging receipt. Nonparties unsuccessfully attempted service at Ross' residence five times between July 7 and 8, and once on July 9. On July 9, petitioner sought permission for alternate methods of service and an extension of time. Supreme Court signed an order to show cause on July 10, granting the request by extending the time to serve Ross until July 24 and substituting the method of mailing by overnight delivery to her residence or affixing copies to her door and sending by first class mail. On July 10, a nonparty emailed the documents to the Commissioners at the specified email address. The same individual sent the documents to Ross by FedEx overnight delivery on July 17. A separate process server served Ross' husband at her residence on July 17 and mailed the papers to her on July 18. Ross answered and moved to dismiss the petition. After hearing from the parties, the court granted the motion and dismissed the petition based on petitioner's failure to effectively serve the Commissioners or Ross. Petitioner appeals.

Pursuant to Election Law § 16-102 (2), and under the circumstances here, this proceeding had to be instituted "within three business days after" the Board determined that the nominating [*2]petition was invalid. The parties agreed that, due to an intervening court holiday and a weekend after the Board's July 2, 2026 determination, the last such day was July 8. "A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)" (Matter of Sauberman v Weinstock, 183 AD3d 1107, 1109 [3d Dept 2020] [internal quotation marks and citations omitted]; accord Matter of Facteau v Clinton County Bd. of Elections, 197 AD3d 840, 842 [3d Dept 2021]; see Matter of Angletti v Morreale, 25 NY3d 794, 797 [2015]; Matter of Lemma v Michos, 249 AD3d 972, 974 [2d Dept 2026]). Ross, as a person who filed objections to the nominating petition, was a necessary party who had to be named in the petition and timely served (see Matter of Gadsen v Board of Elections of City of N.Y., 57 NY2d 751, 752 [1982]; Matter of Fusco v Westchester County Bd. of Elections, 286 AD2d 456, 456-457 [2d Dept 2001], lv denied 96 NY2d 718 [2001]).

Moreover, although the order to show cause permitted service by specified means on or before July 10, 2026 (two days after the statutorily prescribed period), "the service provisions could not and did not extend the period of limitations within which to institute this proceeding within the meaning of the Election Law" (Matter of Facteau v Clinton County Bd. of Elections, 197 AD3d at 842-843 [internal quotation marks, brackets and citations omitted]; see CPLR 201; see also Matter of Minichino v Fox, 219 AD3d 1637, 1639 [3d Dept 2023]). The affidavits of service establish that Ross was not served until after July 8. Additionally, in his application for alternate service and an extension of time, petitioner affirmed that he had been unable to serve Ross as of July 9 by the methods permitted in the original order to show cause. In any event, the time within which petitioner had to serve process upon all respondents had expired by the time he requested alternative methods and an extension of time to serve. Although we acknowledge that petitioner quickly filed the petition and attempted service by the methods authorized by the order to show cause, such diligence cannot extend the statute of limitations or the time for service in an Election Law matter (compare CPLR 306-b; Jordan v City of New York, 38 AD3d 336, 338-339 & n 3 [1st Dept 2007]). Finally, Supreme Court did not impose a new standard requiring a party to request nail-and-mail service, nor did the court penalize petitioner for not initially requesting that method; instead, the court simply noted, in response to petitioner's argument regarding the impracticability of the methods of service authorized in the original order to show cause, that he could have initially requested other methods that may have been easier to execute (see e.g. Matter of Angletti v Morreale, 25 NY3d at 797-798). As a necessary party was not timely served, Supreme Court properly dismissed [*3]the proceeding (see Matter of Facteau v Clinton County Bd. of Elections, 197 AD3d at 842). The parties' remaining arguments are thus academic.

Garry, P.J., Fisher, Powers, Corcoran and Ryba, JJ., concur.

ORDERED that the judgment is affirmed, without costs.