O'Connell v. Ryan

Appellate Division of the Supreme Court of New York

O'Connell v. Ryan

112 A.D.2d 1100, 493 N.Y.S.2d 230, 1985 N.Y. App. Div. LEXIS 52307

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 23, 1985

StatusPublished

Cited by5 cases

This text of 112 A.D.2d 1100 (O'Connell v. Ryan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Connell v. Ryan, 112 A.D.2d 1100, 493 N.Y.S.2d 230, 1985 N.Y. App. Div. LEXIS 52307 (N.Y. Ct. App. 1985).

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Opinion

Per Curiam.

Appeal from three orders of the Supreme Court at Special Term (Hughes, J.), entered August 9, 1985 in Columbia-County, which, in proceedings pursuant to Election Law § 16-102, dismissed petitioners’ applications for failure to timely commence the proceedings.

These three proceedings were commenced to challenge a decision of the Columbia County Board of Elections which rejected petitioners’ challenges to the petitions designating respondents Marcia A. Anderson, Edwin Simonsen, Donald J. Kirsch, Lawrence F. Novak and Theresa M. Fischer as candidates for the party positions of Members of the Columbia County Democratic Committee and to remove said respondents’ names from the official primary election ballots as candidates at the Democratic primary election to be held September 10, 1985. Each special proceeding was commenced by timely service of an order to show cause together with a petition and supporting affidavit. When it was discovered that the petition served in each proceeding had not been verified as required by Election Law § 16-116, amended petitions with verifications, together with ex parte orders (signed by the Justice who had issued the original orders to show cause) allowing the verifications to be added nunc pro tunc, were served on July 30, 1985. Special Term granted respondents’ motion in each proceeding to dismiss on the ground that jurisdiction did not lie since the original petitions served had not been verified prior to the expiration of the 14-day Statute of Limitations on July 25, 1985, relying on the Court of Appeals decision in Matter of Goodman v Hayduk (45 NY2d 804). The factual pattern in the instant cases are virtually identical. The petitions were not verified as mandated by statute (Election Law § 16-116), a requirement jurisdictional in nature which cannot be cured by amendment (Matter of Goodman v Hayduk, 64 AD2d 937, 938, affd 45 NY2d 804). The special proceedings were therefore not timely commenced [1101]*1101and dismissal was proper (Matter of Goodman v Hayduk, 45 NY2d 804, 806, supra).

Orders affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

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Per Curiam.

Appeal from three orders of the Supreme Court at Special Term (Hughes, J.), entered August 9, 1985 in Columbia-County, which, in proceedings pursuant to Election Law § 16-102, dismissed petitioners’ applications for failure to timely commence the proceedings.

These three proceedings were commenced to challenge a decision of the Columbia County Board of Elections which rejected petitioners’ challenges to the petitions designating respondents Marcia A. Anderson, Edwin Simonsen, Donald J. Kirsch, Lawrence F. Novak and Theresa M. Fischer as candidates for the party positions of Members of the Columbia County Democratic Committee and to remove said respondents’ names from the official primary election ballots as candidates at the Democratic primary election to be held September 10, 1985. Each special proceeding was commenced by timely service of an order to show cause together with a petition and supporting affidavit. When it was discovered that the petition served in each proceeding had not been verified as required by Election Law § 16-116, amended petitions with verifications, together with ex parte orders (signed by the Justice who had issued the original orders to show cause) allowing the verifications to be added nunc pro tunc, were served on July 30, 1985. Special Term granted respondents’ motion in each proceeding to dismiss on the ground that jurisdiction did not lie since the original petitions served had not been verified prior to the expiration of the 14-day Statute of Limitations on July 25, 1985, relying on the Court of Appeals decision in Matter of Goodman v Hayduk (45 NY2d 804). The factual pattern in the instant cases are virtually identical. The petitions were not verified as mandated by statute (Election Law § 16-116), a requirement jurisdictional in nature which cannot be cured by amendment (Matter of Goodman v Hayduk, 64 AD2d 937, 938, affd 45 NY2d 804). The special proceedings were therefore not timely commenced [1101]*1101and dismissal was proper (Matter of Goodman v Hayduk, 45 NY2d 804, 806, supra).

Orders affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

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Bluebook (online)

112 A.D.2d 1100, 493 N.Y.S.2d 230, 1985 N.Y. App. Div. LEXIS 52307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnell-v-ryan-nyappdiv-1985.

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