         SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department

884
CAE 15-01319
PRESENT: SCUDDER, P.J., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF FRANCES J. ANGLETTI,
PETITIONER-RESPONDENT,

                     V                                MEMORANDUM AND ORDER

MARCUS MORREALE, RESPONDENT-APPELLANT,
LORA ALLEN AND JENNIFER FRONCZAK, AS COMMISSIONERS
CONSTITUTING NIAGARA COUNTY BOARD OF ELECTIONS,
RESPONDENTS-RESPONDENTS.


JOSEPH F. TOWNSEND, LOCKPORT, JEROME D. SCHAD, WILLIAMSVILLE, FOR
RESPONDENT-APPELLANT.

LAW OFFICE OF SHAWN P. NICKERSON, NORTH TONAWANDA (SHAWN P. NICKERSON
OF COUNSEL), FOR PETITIONER-RESPONDENT.

CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT (JOSEPH BURNS OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Frank
Caruso, J.), entered August 6, 2015 in a proceeding pursuant to
Election Law article 16. The order granted the petition and directed
the Niagara County Board of Elections to strike respondent Marcus
Morreale’s name from the ballot for the 2015 primary and general
elections as a Democratic Party candidate for the office of Niagara
County Legislator, Eighth District.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Marcus Morreale (respondent) appeals from an order
granting the petition and directing respondent Commissioners of the
Niagara County Board of Elections (Board) to strike respondent from
the Ballot for the 2015 primary and general elections as a Democratic
Party candidate for the office of Niagara County Legislator, Eighth
District (County Legislator office). We affirm.

     On July 8, 2015, a designating petition was filed with the Board
purporting to designate respondent as a Democratic Party candidate for
the County Legislator office. Respondent declined the designation,
but the committee to fill vacancies subsequently designated
respondent—apparently with his consent—as the substitute candidate for
the vacancy he himself had created by initially declining the
designation (see generally Election Law § 6-148 [1]).
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                                                         CAE 15-01319


     Petitioner filed a formal objection to the substitution with the
Board, but the Board rejected the objection. Petitioner then
commenced the instant proceeding pursuant to Election Law § 16-102,
seeking to invalidate the certificate of substitution. The petition
was verified by petitioner’s attorney, who admittedly has offices in
Niagara County, where petitioner resides. Supreme Court subsequently
granted the petition, holding that the Election Law did not permit a
committee to fill vacancies to designate a substitute candidate whose
own declination caused the vacancy at issue.

     The petition filed in the County Clerk’s Office was verified by
petitioner’s attorney, whose office was in Niagara County (see CPLR
3020 [d] [3]). As a preliminary matter, we reject respondent’s
contention that the verification of the petition by petitioner’s
attorney constitutes a jurisdictional defect (see Matter of Miller v
Board of Assessors, 91 NY2d 82, 86; People ex rel. New York City
Omnibus Corp. v Miller, 282 NY 5, 9). We note that respondent did not
waive that contention by failing to exercise his right to treat the
petition as a nullity (see CPLR 3022). Respondent could not have
objected to the alleged improper verification by returning the
petition to petitioner’s attorney with due diligence and with
notification of his reason for doing so inasmuch as the petition
served on respondent was verified by petitioner himself (cf. Lepkowski
v State of New York, 1 NY3d 201, 210). Even assuming, arguendo, that
the verification of petitioner’s attorney was improper because
petitioner was in “the county where the attorney has his office” (CPLR
3020 [d] [3]), we conclude that “any defect in the verification of the
petition ‘should be ignored inasmuch as [respondent] failed to
demonstrate that [he] was substantially prejudiced by the alleged
defect’ ” (Matter of Perez v Perez, 71 AD3d 1496, 1496, lv denied 14
NY3d 714).

     We reject respondent’s further contention that the petition was
not timely served. In the order to show cause accompanying the
petition, the court authorized service by any of 10 enumerated
methods, including, as relevant to this appeal, “by affixing the
[commencement papers] to the outer or inner door of [his] residence .
. . AND by enclosing the same in a securely sealed and duly prepaid
wrapper, addressed to [respondent] at the address set forth in [the]
designating petition, and depositing the same with a depository of the
United States Postal Service [USPS] via Express Mail on or before the
23rd day of July, 2015.” It is undisputed that July 23, 2015 was the
last day on which to commence the proceeding. The record establishes
that the commencement papers were affixed, i.e., “nailed,” to the door
of respondent’s residence on July 22, 2015, and the commencement
papers were mailed to respondent’s residence by USPS “Express Mail” on
July 23, 2015.

     In a proceeding under article 16 of the Election Law, the
petitioner must satisfy two distinct service requirements. First, the
petitioner must provide “such notice to [the respondent or
respondents] as the court or justice shall direct” (§ 16-116). Here,
there is no dispute that petitioner “ ‘strictly complied with’ ” the
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                                                         CAE 15-01319

court’s service directions (Matter of Grimaldi v Board of Elections of
the State of N.Y., 95 AD3d 1644, 1646; see Matter of O’Daniel v
Hayduk, 59 AD2d 706, 707, affd for reasons stated 42 NY2d 1062). As
noted above, the commencement papers were affixed to the door of
respondent’s residence on July 22, 2015, and they were mailed to
respondent’s residence by USPS Express Mail on July 23, 2015. Thus,
both the mailing and the “nailing” occurred “on or before the 23rd day
of July, 2015” as directed by the court.

     Second, the petitioner must effectuate “ ‘actual delivery of the
instrument of notice not later than the last day on which the
proceeding may be commenced’ ” (Matter of Yellico v Ringer, 185 AD2d
965, 966; see Matter of Riley v Democratic Party of Owasco, 21 AD3d
708, 709, lv denied 5 NY3d 707). In other words, the respondents must
“receive delivery” of the order to show cause and the verified
petition “within the [statute of limitations] period” (Matter of
Thompson v New York State Bd. of Elections, 40 NY2d 814, 815). That
requirement operates irrespective of the court’s specific service
directions under section 16-116 (see Matter of Rotanelli v Westchester
County Bd. of Elections, 41 Misc 3d 254, 261, affd 109 AD3d 562;
Matter of Davis v McIntyre, 43 AD3d 636, 636-637).

     Contrary to the view of our dissenting colleagues, we conclude
that petitioner effectuated “actual delivery” of the commencement
papers when they were affixed to respondent’s front door. It is well
established that because “the [commencement] papers were timely
affixed to the front door, the fact that the papers mailed were not
received on [or before the statute of limitations date] was not a
jurisdictional defect” (Matter of O’Connor v Power, 30 AD2d 926, 926,
affd 22 NY2d 889; see Matter of Weill v Erickson, 49 AD2d 895, 897,
affd 37 NY2d 851; Matter of Serri v Heffernan, 298 NY 629, 629-631;
Matter of Marcoccia v Garfinkle, 307 AD2d 1010, 1010-1011, lv denied
100 NY2d 509). In fact, respondent’s argument to the contrary is
indistinguishable from the dissent at the Court of Appeals in Serri,
which, citing Matter of King v Cohen (293 NY 435)—a 1944 case
predating New York’s commencement-by-filing system and thus of dubious
precedential value—argued that service was untimely when both the
nailing and the mailing were not completed within the statute of
limitations period (298 NY at 631 [Conway and Dye, JJ., dissenting]).

     Although respondent concedes that O’Connor and similar cases are
directly on point, he contends that O’Connor was overruled by Matter
of Buhlmann v Le Fever (54 NY2d 775, affg for reasons stated 83 AD2d
895). We reject that contention. The issue in O’Connor was whether a
last-day “nailing” satisfied the King requirement even if the
corresponding mailing could not have arrived within the statute of
limitations period, and the Court determined that it did. The Court
in Buhlmann, on the other hand, never considered that issue,
presumably because the commencement papers in that case were nailed to
the “outside wall” of the respondent’s residence (83 AD2d at 896), not
to the “door” as directed by CPLR 308 (4). Buhlmann thus considered
only whether a last-day mailing could, by itself, satisfy the King
requirement, and the Court held that it could not. Buhlmann is
                                      -4-                      884
                                                         CAE 15-01319

therefore distinguishable from O’Connor, as well as from the facts of
this case.

     Contrary to respondent’s assertion, neither Matter of Ehle v
Wallace (195 AD2d 1086, 1086, lv denied 82 NY2d 653), nor Davis (43
AD3d at 637), supports reversal. Unlike respondent here, the
respondents in those cases did not receive the commencement papers on
or before the expiration of the statute of limitations period.

     Finally, turning to the merits, we conclude that the court
properly determined that the committee to fill vacancies was properly
barred from designating respondent to fill a vacancy created by his
own declination. “The Election Law plainly contemplates that the
candidate designated to fill a vacancy shall be a person other than
the person originally named” (Matter of Nestler v Cohen, 242 App Div
726, 726). It therefore necessarily follows that a person who creates
a vacancy by his or her own declination cannot thereafter be
designated by the committee to fill vacancies as the substitute
designee for the very same position (see Matter of Garfinkel v Power,
208 Misc 719, 720, affd 286 App Div 957, affd 309 NY 779; see
generally Curtin v Mahoney, 52 AD2d 716, 716-717).

     All concur except   SCUDDER,   P.J., and
                                                              We agree
with the majority that the verification of the petition by
petitioner’s attorney does not constitute a jurisdictional defect (see
Matter of Miller v Board of Assessors, 91 NY2d 82, 86; People ex rel.
New York City Omnibus Corp. v Miller, 282 NY 5, 9), and that Supreme
Court properly determined that the committee to fill vacancies could
not designate Marcus Morreale (respondent) to fill a vacancy created
by his own declination (see Matter of Garfinkel v Power, 208 Misc 719,
720, affd 286 App Div 957, affd 309 NY 770; see generally Curtin v
Mahoney, 52 AD2d 716, 716-717). We respectfully disagree, however,
with the majority’s conclusion that respondent was timely served with
the order to show cause and petition. We would reverse the order and
dismiss the petition, and we therefore dissent.

     As the majority explains, the record establishes that the papers
were affixed to the door of respondent’s residence on July 22, 2015,
and that on July 23, 2015, the last day of the 14-day period to
commence the proceeding, they were mailed by USPS Express Mail, in
accordance with the service authorized by the order to show cause,
i.e., “as the court or justice shall direct” (Election Law § 16-116).
Although the service complied with the court’s directive, in our view,
it is not sufficient that respondent may have received notice by
“nailing” alone within the statutory period.

     We recognize that the Court of Appeals affirmed the order in
Matter of O’Connor v Power (30 AD2d 926, affd 22 NY2d 889), wherein
our colleagues in the Second Department determined that, “[i]n [their]
opinion, since the orders and the supporting papers were timely
affixed to the front door, the fact that the papers mailed were not
received on [or before the statute of limitations date] was not a
jurisdictional defect” (id. at 926). We disagree with the majority
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                                                         CAE 15-01319

however, that the determination of the Court of Appeals in Matter of
King v Cohen (293 NY 435, 439), i.e., that mailing the papers on the
last day of the statutory period was not sufficient, is of “dubious
precedential value.” The Court of Appeals determined in King that the
requirement of Election Law § 16-116 (formerly § 335) that “[t]he
parties against whom a proceeding of this kind is brought are entitled
to such notice thereof as the court, justice or judge shall direct . .
. calls for delivery of the instrument of notice not later than on the
last day on which the proceeding may be commenced . . .
Consequently[,] the attempted service by mail [on the last day] was
ineffectual . . . [inasmuch as] the use of registered mail is likely
to result in a failure of timely delivery of notice of the proceeding”
(King, 293 NY at 439 [internal quotation marks omitted]). As we
explained in Matter of Ehle v Wallace (195 AD2d 1086, 1086, lv denied
82 NY2d 653), the requirement in Election Law § 16-116 “calls for
delivery of the instrument of notice not later than on the last day on
which the proceeding may be commenced”. Here, the “instrument of
notice” is the nailing and mailing of the papers (Ehle, 195 AD2d at
1086) and, indeed, both nailing and mailing are required by CPLR 308
(4) for service (see Hopkins v Tinghino, 248 AD2d 794, 795). In other
words, in accordance with our precedent in Ehle, we interpret King to
require delivery of the papers as directed by the court in the order
to show cause, i.e., nailing and mailing, within the statutory period.
Here, the mailing was not accomplished “at a time when it might
reasonably have been expected that receipt would occur within the
statutory period” (Matter of Contessa v McCarthy, 40 NY2d 890, 891).
Although the order to show cause permitted mailing by USPS Express
Mail on July 23, 2015, we note that the “ ‘provision could not and did
not extend the period of limitations within which to institute the
proceeding within the meaning of the Election Law’ ” (Matter of Davis
v McIntyre, 43 AD3d 636, 637).




Entered: August 19, 2015                       Frances E. Cafarell
                                               Clerk of the Court
