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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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
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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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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