Rapp v. Wright

218 A.D.2d 776, 630 N.Y.S.2d 579, 1995 N.Y. App. Div. LEXIS 8885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 23, 1995
• Status: Published

Opinion

—In a proceeding to invalidate a petition designating Mary A. Wright, James J. Coyne, Michael P. Egiziaco, Barbara Egiziaco, William Torres, Helen Torres, Samuel Egiziaco, Rosetta Egiziaco, Frank Rubino, Laurene Perillo, Winston David, and Helen David as candidates in a primary election to be held on September 12, 1995, for the Republican Party positions of Members of the County Committee in the County of Westchester, the appeal is from a judgment of the Supreme Court, Westchester County (Rosato, J.), entered August 17, 1995, which dismissed the proceeding.

Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for a determination of the proceeding on the merits.

Contrary to the determination of the Supreme Court, we conclude that the proceeding was timely commenced. The petitioners established that the petitioner Michael R. Rapp, Sr. commenced the proceeding by order to show cause within three business days of the determination of the respondent Westchester County Board of Elections denying his objections (see, Election Law § 16-102 [2]). The respondents' bare conclusory assertion that the determination of the Board of Elections was made at some earlier time is unsupported by any proof in the record (cf., Matter of Eckart v Edelstein, 185 AD2d 955; see also, Matter of Pell v Coveney, 37 NY2d 494).

Inasmuch as the Supreme Court did not rule on the specific objections to the petition, we remit the matter for further proceedings on the merits (see, Matter of Pericak v Hooper, 207 AD2d 950). Mangano, P. J., Thompson, Pizzuto and Goldstein, JJ., concur.