Wolfe v. Acito

Appellate Division of the Supreme Court of New York

Wolfe v. Acito

64 A.D.2d 948, 408 N.Y.S.2d 559, 1978 N.Y. App. Div. LEXIS 12869

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

DecidedAugust 24, 1978

StatusPublished

Cited by2 cases

This text of 64 A.D.2d 948 (Wolfe v. Acito) 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

Wolfe v. Acito, 64 A.D.2d 948, 408 N.Y.S.2d 559, 1978 N.Y. App. Div. LEXIS 12869 (N.Y. Ct. App. 1978).

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Opinion

—Appeal from a judgment of the Supreme Court at Special Term entered August 18, 1978 in Albany County, which granted petitioner’s application, in a proceeding pursuant to section 16-102 of the Election Law, seeking to declare valid the designating petition designating petitioner as a candidate of the Democratic Party for the office of Member of the Assembly in the 109th Assembly District in the September 12 primary election. The sole issue raised on this appeal is whether Special Term lacked jurisdiction to entertain this proceeding to validate petitioner’s designating petition because, concededly, the order to show cause with accompanying petition was not served in the manner provided for in the order. Service of the order and the papers upon which it was granted were directed to be served upon appellant Alric (a) personally at his residence in the Town of Johnstown, New York, or (b) by leaving a copy with a person of suitable age and discretion at his residence, or (c) by affixing a copy to the door of his residence. The appellant was personally served in Albany. The judgment must be affirmed. Appellant’s reliance on Matter of Bruno v Ackerson (39 NY2d 718) is misplaced. In Bruno the show cause order provided for service upon the respondent by "nail” and "mail”. Actual service was made by "mail” and by delivery to respondent’s wife at their place of residence. The methods were conjunctive and cumulative. No alternate method of service was authorized. The service provisions of the order were not carried out. The defect was jurisdictional. Here, the order to show cause provided for alternate means of service. Any one of those methods would satisfy the requirements of the order. The appellant was served personally in Albany. The site of the service is irrelevant and not violative of the "Mode of service provided for in the order to show cause” (Matter of Bruno v Ackerson, supra). Judgment affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Staley, Jr., and Main, JJ., concur.

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—Appeal from a judgment of the Supreme Court at Special Term entered August 18, 1978 in Albany County, which granted petitioner’s application, in a proceeding pursuant to section 16-102 of the Election Law, seeking to declare valid the designating petition designating petitioner as a candidate of the Democratic Party for the office of Member of the Assembly in the 109th Assembly District in the September 12 primary election. The sole issue raised on this appeal is whether Special Term lacked jurisdiction to entertain this proceeding to validate petitioner’s designating petition because, concededly, the order to show cause with accompanying petition was not served in the manner provided for in the order. Service of the order and the papers upon which it was granted were directed to be served upon appellant Alric (a) personally at his residence in the Town of Johnstown, New York, or (b) by leaving a copy with a person of suitable age and discretion at his residence, or (c) by affixing a copy to the door of his residence. The appellant was personally served in Albany. The judgment must be affirmed. Appellant’s reliance on Matter of Bruno v Ackerson (39 NY2d 718) is misplaced. In Bruno the show cause order provided for service upon the respondent by "nail” and "mail”. Actual service was made by "mail” and by delivery to respondent’s wife at their place of residence. The methods were conjunctive and cumulative. No alternate method of service was authorized. The service provisions of the order were not carried out. The defect was jurisdictional. Here, the order to show cause provided for alternate means of service. Any one of those methods would satisfy the requirements of the order. The appellant was served personally in Albany. The site of the service is irrelevant and not violative of the "Mode of service provided for in the order to show cause” (Matter of Bruno v Ackerson, supra). Judgment affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Staley, Jr., and Main, JJ., concur.

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Bluebook (online)

64 A.D.2d 948, 408 N.Y.S.2d 559, 1978 N.Y. App. Div. LEXIS 12869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfe-v-acito-nyappdiv-1978.

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