Opinion
014019/11
01-09-2012
Martin Dekom, Petitioner, v. Francis X. Moroney, CHAIRMAN; JOHN INFRANCA, TREASURER; MICHAEL PULITZER, SECRETARY; purporting to be the officers of the NORTH HEMPSTEAD REPUBLICAN COMMITTEE, Respondents,
Petitioner, Martin Dekom, pro se: Counsel for the Respondents: Leventhal, Sliney & Mullaney, LLP Steven G. Leventhal, Esq.
Petitioner, Martin Dekom, pro se: Counsel for the Respondents: Leventhal, Sliney & Mullaney, LLP Steven G. Leventhal, Esq.
, J.
The Petition by the Petitioner, Martin Dekom seeking, inter alia, an order declaring the actions taken by the North Hempstead Republican Committee, at its convention on September 20, 2011, null and void, is DENIED.
The motion by the Respondents, Francis X. Moroney, Chairman; John Infranca, Treasurer; and, Michael Pulitzer, Secretary; purporting to be the officers of the North Hempstead Republican Committee, seeking an order pursuant to CPLR § 3211 (a) (3), (5), (8) and (10) dismissing the Petition for lack of jurisdiction, as barred by the Statute of Limitations; for failure to join necessary parties; and, Petitioner's lack of standing, is GRANTED.
Immediately prior to the election of officers at the meeting at issue in this proceeding, the officers of the North Hempstead Republican Committee were Francis X. Moroney, Chairman; Richard Nicolello, Secretary; and, John Infranca, Treasurer. The following officers were elected at the meeting: Francis X. Moroney, Chairman; Michael Pulitzer, Secretary; John Infranca, Treasurer until October 3, 2011; and, Vincent Abatiello to serve the remaining term of the office of Treasurer. The Petitioner seeks, inter alia, to invalidate those election results.
The Petitioner's failure to name the elected Treasurer, Vincent Abatiello, and Richard Nicolello who would resume the office of Secretary if the election of Michael Pulitzer were annulled requires dismissal of the Petiton. [CPLR § 3211 (a) (10); CPLR § 1001 (a); Borelli v. Meier, 264 AD2d 479 (2d Dept. 1999)]. Similarly, the Petitioner's failure to name the North Hempstead Republican Committee [CPLR § 1001 (a); Jacobellis v. Fonseca, 43 AD3d 484 (2d Dept. 2007), lv den., 9 NY3d 804 (2007); Barbuto v. Sarcone, 275 AD2d 424 [2d Dept. 2000], lv den., 95 NY2d 759 (2000)] and the Nassau County Republican Committee of which the North Hempstead Republican Committee is a subcommittee is also fatal to this proceeding (Flores v. Kapsis, 10 AD3d 432 [2d Dept. 2004], lv den., 3 NY3d 603 [2004]; Jenkins v. Board of Elections of City of New York, 270 AD2d 436 (2d Dept. 2000).
In addition, service on Francis X. Moroney, John Infranca and Michael Pulitzer was not in accordance with CPLR § 312 as required by the Order to Show Cause granted September 29, 2011. CPLR § 2214 (d) provides that an Order to Show Cause be served "at a time and in a manner specified therein." The Order to Show Cause required that it be served pursuant to CPLR § 312 which requires delivery of process to a specified member or person. "Delivery" in that statute requires delivery only and precludes the use of any method of substituted service. Siegel, New York Practice, Fifth Edition (2011), p. 116. The Affidavits of the Respondents, Francis X. Moroney, Michael Pulitzer and John Infranca make eminently clear that the Orders to Show Cause purportedly served on them were not personally delivered to them but was left in their offices. The method of service set forth in an Order to Show Cause is jurisdictional in nature and must be strictly complied with. El Greco Soc. of Visual Arts v. Diamantidis, 47 AD3d 929 (2d Dept. 2008), Bell v. State University of New York at Stony Brook, 185 AD2d 925 (2d Dept. 1992); Bruno v. Ackerson, 51 AD2d 1051 (2d Dept. 1976) affd, 39 NY2d 718 (1976). "Notice received by means other than those authorized . . . does not bring a defendant within the jurisdiction of the court." Maccia v. Russo, 67 NY2d 592, 595 (1986). Dismissal is therefore also required pursuant to CPLR § 3212 (a) (8).
In addition, the Statute of Limitations to challenge the results of the election of officers at a party committee meeting is ten days. Election Law § 16-102 (2); see, Kosowski v. Donovan, 84 AD3d 1089 (2d Dept. 2011), lv granted, 17 NY3d 714 (2011); Stabile v. DeFronzo, 231 AD2d 577 (2d Dept. 1996). While the Order to Show Cause was procured on the ninth day following the subject election, it was not properly served within 10 days, which is required in order to institute the proceeding in a timely fashion. Sayegh v. Scannapieco, 10 AD3d 439 (2d Dept. 2004), lv den., 3 NY3d 603 (2004) (citations omitted). This Petition must be dismissed pursuant to CPLR § 3211 (a) (5).
Finally, because the Petitioner is not an "aggrieved candidate" or other person designated under Section 16-102 (1) of the Election Law, he lacks standing to challenge the election. Ciprino v. Graves, 87 AD3d 636 (2d Dept. 2011); CPLR § 3211 (a) (3).
Accordingly, it is hereby
ORDERED, that the Petition is dismissed pursuant to CPLR § 3211 (a) (3), (5), (8), (10).
This constitutes the Decision, Order and Judgment of the Court.
DATED:Mineola, New York
January 9, 2012
___________________________
Hon. Randy Sue Marber, J.S.C.
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