Rumsey v. Niebel

286 A.D.2d 564, 730 N.Y.S.2d 591, 2001 N.Y. App. Div. LEXIS 8145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2001
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: Petitioner commenced this special proceeding seeking to invalidate the certificate of election of officers of the Chautauqua County Independence Party filed by Randall Brown (respondent). Supreme Court properly granted that part of respondent’s motion seeking dismissal of the proceeding as time-barred. Petitioner was required to file her verified petition and order to show cause in the county clerk’s office within 10 days of the filing of the contested certificate of election (see, Election Law § 16-102 [2]; CPLR 304; Matter of Essenberg v Reape, 272 AD2d 544; Matter of Zicari v Stewart, 207 AD2d 951; Matter of Ehle v Wallace, 195 AD2d 1086, lv denied 82 NY2d 653), but failed to do so. Respondents filed the certificate of election on September 29, 2000, and thus the 10-day period began to run on September 30, 2000 (see, General Construction Law § 20). Because the 10-day period expired on October 9, 2000, which was Columbus Day, the last date on which petitioner could have timely filed her petition and order to show cause was October 10, 2000 (see, General Construction Law § 25-a [1]). Petitioner did not file her petition and order to show cause in the county clerk’s office until October 20, 2000.