SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

835 

CAE 14-01441 

PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND VALENTINO, JJ.

 

 

IN THE MATTER OF ERIN J. O’BRIEN, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

FRANCIS J. PORDUM, TIMOTHY J. PAWARSKI,

MARY I. JULIAN, MARY ALICE GRANT,

RICHARD F. ROSE, RICHARD E. DOBSON, 

REBECCA L. PORDUM AND NEW YORK STATE BOARD OF 

ELECTIONS, RESPONDENTS-RESPONDENTS. 

SLIWA & LANE, BUFFALO (PAUL F. MURAK OF COUNSEL), FOR

PETITIONER-APPELLANT. 

THOMAS E. WEBB, JR., WILLIAMSVILLE (JAMES OSTROWSKI OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS FRANCIS J. PORDUM, TIMOTHY J. PAWARSKI, MARY

I. JULIAN, MARY ALICE GRANT, RICHARD F. ROSE, RICHARD E. DOBSON, AND 

REBECCA L. PORDUM.

NEW YORK STATE BOARD OF ELECTIONS, ALBANY (KATHLEEN O’KEEFE OF

COUNSEL), RESPONDENT-RESPONDENT PRO SE. 

 

Appeal from an order of the Supreme Court, Erie County (Matthew

J. Murphy, III, A.J.), entered August 14, 2014 in a proceeding

pursuant to Election Law article 16. The order, insofar as appealed

from, dismissed the petition as jurisdictionally defective on the

ground that petitioner failed to serve the Attorney General.

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the petition is

reinstated and the matter is remitted to Supreme Court, Erie County,

for further proceedings in accordance with the following Memorandum: 

Petitioner commenced this proceeding by order to show cause and

petition pursuant to Election Law article 16 seeking to invalidate the

joint designating petition of Francis J. Pordum, Timothy J. Pawarski,

Mary I. Julian, Mary Alice Grant, Richard F. Rose, Richard E. Dobson,

and Rebecca L. Pordum (candidate respondents). The first six of those

candidate respondents sought to be designated judicial delegates of

the 147th Assembly District in the September 9, 2014 Democratic Party

primary election, and the final candidate respondent sought to be

designated an alternate delegate thereof. We agree with petitioner

that Supreme Court erred in dismissing the petition as

jurisdictionally defective on the ground that she failed to serve the

Attorney General with the order to show cause as required by CPLR 2214
-2- 835 

CAE 14-01441 

(d), and we therefore reverse the order insofar as appealed from,

reinstate the petition, and remit the matter to Supreme Court for

entry of an order determining the merits.

 CPLR 2214 (d) provides, in relevant part, that “[a]n order to

show cause against a state body or officers must be served in addition

to service upon the defendant or respondent state body or officers

upon the attorney general by delivery to an assistant attorney general

at an office of the attorney general in the county in which venue of

the action is designated or if there is no office of the attorney

general in such county, at the office of the attorney general nearest

such county.” In our view, however, the record on appeal establishes

that the “respondent state body” in this case—respondent New York

State Board of Elections—was represented by its own counsel, and we

therefore conclude that petitioner’s failure to serve the Attorney

General was at most a technical defect that may be disregarded (see

CPLR 2001; see also Duffy v Schenck, 73 Misc 2d 72, 73, affd 42 AD2d

774; see generally Patrick M. Connors, Practice Commentaries,

McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:30, at 151-152; cf.

Matter of Castracan v Colavita, 173 AD2d 924, 926 n 3, appeal

dismissed 78 NY2d 1041)

We reject the contention of respondent candidates that the appeal

should be dismissed for petitioner’s failure to include the hearing

transcript in the record on appeal inasmuch as we conclude that the

record on appeal is adequate for us to decide the above jurisdictional

issue. Finally, we have examined the additional contentions raised by

the candidate respondents and conclude that they are without merit. 

Entered: August 20, 2014 Frances E. Cafarell

Clerk of the Court