Messina v. McDermott

264 A.D.2d 457, 693 N.Y.S.2d 457, 1999 N.Y. App. Div. LEXIS 8766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 18, 1999
• Status: Published

Opinion

In a proceeding pursuant to Election Law article 16 to validate a petition designating Anthony John Messina as a candidate in a primary election to be held on September 14, 1999, for the nomination of the Republican Party as its candidate for the public office of Town Justice for the Town of Somers, the respondents Michael J. McDermott and the Board of Elections of the County of Westchester separately appeal from a judgment of the Supreme Court, Westchester County (Scancarelli, J.), entered August 13, 1999, which granted the petition.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

The Supreme Court improperly found that service was effectuated in compliance with the order to show cause. The order to show cause specifically required service on the objector Michael McDermott by personal delivery and accordingly, the petitioner could not rely on the alternative methods of personal service provided for by CPLR 308 (see, Matter of Velez v Smith, 149 AD2d 753).

In light of our determination, we do not reach the parties’ remaining contentions. Bracken, J. P., Florio, McGinity, Feuer-stein and Schmidt, JJ., concur.