Loucky v. Buchanan — 49 A.D.2d 797

Majority

p. 797

In the Matter of Lubomir G. Loucky, Appellant, v Frederick R. Buchanan et al., Constituting the Board of Elections of Onondaga County, and Jerome J. Johnson, Respondents.

Order unanimously affirmed, without costs. Memorandum: Special Term denied petitioner’s application on the ground that he had not complied with section 145 of the Election Law. As a candidate aggrieved, petitioner was not required to do so (Election Law, § 330, subd 1; Matter of Burns v Wiltse, 303 NY 319 ; Matter of Fleishman v Board of Elections of County of Nassau, 31 Misc 2d 326 , 328; Matter of Chonin v Millspaugh, 13 Misc 2d 841 ; Matter of Le Sawyer v Board of Elections of Columbia County, 207 Misc 12 , 16; Matter of O’Connor [Babcock], 180 Misc 630 , 632; Gassman, Election Law, p 267). We affirm the order of Special Term, however, on other grounds. Subdivision 1 of section 330 of the Election Law provides that “a proceeding under this subdivision must be instituted within fourteen days after the last day to file petitions”. Failure to comply with the statutory time period is a jurisdictional defect (Matter of Ullman v Power, 36 Misc 2d 1015 ,1018, affd 17 AD2d 792 , affd 12 NY2d 724 ). The last day to file designating petitions was July 24, 1975. Notice was mailed on August 7,1975 and received on August 8,1975. While this was within the time period specified in the order to show cause, it was one day beyond the 14-day requirement of section 330. Mailing on the last permissible day is insufficient to institute a proceeding under subdivision 2 of section 330 of the Election Law (Matter of Weiser v Power, 29 AD2d 640 ), and the statutory period of limitations may not be extended by the court (see Matter of Ullman v Power, supra; Dyte v Lawley, 20 Misc 2d 988 ; Matter of Kaplan v Meisser, 196 Misc 6 ; Ramos-Lopez v Heffernan, 64

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NYS2d 603). Thus, the untimeliness of service requires dismissal of this proceeding. (Appeal from order of Onondaga Supreme Court in proceeding to invalidate designating petitions.) Present—Marsh, P. J., Moule, Mahoney, Goldman and Witmer, JJ. (Order entered August 27, 1975.)

Cases cited

Burns v. Wiltse 303 NY 319 N.Y. 1951-11-02 p. 797
Fleishman v. Board of Elections 31 Misc 2d 326 N.Y. Sup. Ct. 1961-08-31 at 328 p. 797
Chonin v. Millspaugh 13 Misc 2d 841 N.Y. Sup. Ct. 1958-10-03 p. 797
Le Sawyer v. Board of Elections 207 Misc 12 N.Y. Sup. Ct. 1954-09-08 at 16 p. 797
In re O'Connor 180 Misc 630 N.Y. Sup. Ct. 1943-07-31 at 632 p. 797
Ullman v. Power 36 Misc 2d 1015 N.Y. Sup. Ct. 1962-10-03 at 1018 p. 797
Ullman v. Power 12 NY2d 724 N.Y. 1962-10-25 p. 797
Weiser v. Power 29 AD2d 640 N.Y. App. Div. 1968-01-25 p. 797
Dyte v. Lawley 20 Misc 2d 988 N.Y. Sup. Ct. 1959-09-03 p. 797
Kaplan v. Meisser 196 Misc 6 N.Y. Sup. Ct. 1949-08-23 p. 797