Opinion
2013-1909
09-27-2013
Arthur Laurey, a candidate aggrieved, Petitioner, v. Robert D. Siglin, Keith H. Osborne, Commissioners of the [Board of] Elections, constituting The Board of Elections in the County of Chemung, and William Schrom, Respondents.
Arthur Laurey, pro se, and Schlather, Stumbar, Parks & Salk, Ithaca (Jeffrey D. Walker of counsel), for Arthur Laurey, petitioner. Bryan J. Maggs, County Attorney, Elmira, for Robert D. Siglin, and others, respondents. Brown & Weinraub, Albany (Jeffrey T. Buley of counsel), for William Schrom, respondent.
Arthur Laurey, pro se, and Schlather, Stumbar, Parks & Salk, Ithaca (Jeffrey D. Walker of counsel), for Arthur Laurey, petitioner.
Bryan J. Maggs, County Attorney, Elmira, for Robert D. Siglin, and others, respondents.
Brown & Weinraub, Albany (Jeffrey T. Buley of counsel), for William Schrom, respondent.
David M. Brockway, J.
This is a special proceeding under the Election Law, instituted by petitioner Arthur Laurey for an order (1) declaring as invalid objections filed by Respondent William Schrom to an independent nominating petition nominating petitioner as a candidate of the Liberty and Justice Party for the office of County Sheriff of Chemung County and (2) directing the Board of Elections of the County of Chemung to reinstate the nominating petition as a valid petition, and for other relief.
By order to show cause filed September 11, 2013, petitioner Arthur Laurey (Laurey) commenced this proceeding against respondents Robert D. Siglin and Keith H. Osborne, as Commissioners of the County Board of Elections, and the Board of Elections (collectively Board) and Respondent William Schrom (Schrom), alleging that the independent nominating petition "contained the requisite number of signatures, was in proper form and satisfied the requirements of the Election Law ... for a valid petition."
In a special proceeding, a respondent may raise an objection in point of law by setting it forth in an answer or by a motion to dismiss. The Board in its answer, and Schrom by motion to dismiss, raise the following objections: (1) petitioner failed to complete service within the statute of limitations; (2) service of process was not in compliance with the amended order to show cause; and (3) the petition fails to identify which signatures the Board erroneously invalidated.
Schrom also moved to dismiss on the ground that the order to show case and petition were served by Laurey himself in violation of CPLR 2103(a). This was based upon an initial affidavit secured by Schrom. An amended affidavit revealed that Laurey handed the papers to his campaign manager who in turn handed them to an off -duty deputy in front of Schrom's place of business. Counsel for Schrom argue that Laurey was so involved in the service of the papers that the prohibition against service by a party should apply. No statutory or case law was provided in support of this position. As a result of the court's decision herein, the court does not reach this issue. However, it is observed that Counsel for Laurey have cited the case of Matter of Sullivan v Albany County Bd. of Elections, 77 AD2d 959 (3d Dept 1980), where it was held that "in the absence of prejudice to a substantial right of the respondents, such an irregularity should be disregarded" (id. at 959, citing CPLR 2001, 2103 [a]; see Thomas F. Gleason, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C:2103:2, citing Matter of Wein v Thomas, 78 AD2d 611 [1st Dept 1980], affd 51 NY2d 862 [1980]).
BACKGROUND
This proceeding was commenced by order to show cause dated September 11, 2013, the last permissible day to do so. The papers were filed in the county clerk's office at 2:24 p.m. and presented to the undersigned at approximately 3:30 p.m. Affixed thereto was a letter bearing Laurey's signature seeking "substituted service to the Respondents' place[s] of business ... [with mailing] as a follow-up service." The order to show cause directed service "by personal service; or upon a person of suitable age and discretion at the respondents' respective places of business, together with 1st Class mailing by United States Postal Service to each at his respective office address on or before September 13, 2013." Recognizing that the court had inadvertently purported to extend the statute of limitations and that such a provision in a show cause order is ineffectual (see Matter of Manz v Lawley, 21 AD2d 750, 750 [4th Dept 1966], citing Matter of King v Cohen, 293 NY 435 [1944]; Matter of Eckart v Edelstein, 185 AD2d 955, 956 [2d Dept 1992]), the court promptly signed an amended order to show cause on the same date at approximately 4:15 p.m. The amended order to show cause directed service by September 11, 2013 and relaxed the service directive by permitting service at "respondents' respective residences or places of business" (since service, by that hour, was unlikely to be completed at respondents' places of business), but otherwise continued the directives in the original order (emphasis added).
In both the order to show cause and amended order to show cause, the substituted service provision requiring a follow-up mailing was not intended to delay the completion of service for a period of ten days (see e.g. Matter of Weill v Erickson, 49 AD2d 895, 897 [2d Dept 1975], affd, appeal dismissed 37 NY2d 851 [1975]; Matter of Foris v Power, 35 AD2d 734, 734 [2d Dept 1970]; Matter of O'Connor v Power, 30 AD2d 926, 926 [2d Dept 1968]; Matter of Hinkley v Egan, 181 Misc 2d 921, 922 [Sup Ct, Dutchess County 1999]; Ralston v Blum, 105 Misc 2d 357, 360 [Sup Ct, Tompkins County 1980]; cf. CPLR § 308 [2] [providing that "service shall be complete ten days after" filing proof of service]). Rather, service was intended to be complete upon depositing the papers in the mail, as with the service of interlocutory papers (see CPLR 2103 [b] [2]).
FACTS
The affidavits, exhibits and credible testimony reveal the following: Schrom, the current undersheriff, was off duty and not at work at the Sheriff's Office from September 11, 2013 through September 15, 2013. The Sheriff's Office, located at 203 William Street, is Schrom's actual place of business. At some point after delivering the original order to show cause to an individual at the Board commissioners' place of business, Laurey's campaign manager Mark Houseknecht (Houseknecht) was advised that an amended order had been issued, directing that service needed to be completed that day. After unsuccessfully attempting service of the amended order at the Sheriff's Office, Houseknecht attempted service of the amended order at the Chemung County Jail located at 211 William Street at approximately 5:00 p.m. on September 11, 2013. He advised officials at the jail that he had papers to serve on Schrom. Jail officials refused to accept service of process. Houseknecht then left the jail and got into a mini-van operated by Laurey. No copies of the papers were left at the Sheriff's Office or the jail.
See County Law § 652.
Assuming, without deciding, the County Jail could be included as Schrom's actual place of business, "[w]hether ... employees agreed or refused to accept service is irrelevant because the delivery requirement may be met by leaving the [initiating papers] in the general vicinity of a person who resists service" (Miske v Maher, 156 AD2d 986, 986 [4th Dept 1989], citing Bossuk v Steinberg, 58 NY2d 916, 918 [1983]).
Houseknecht testified that he was attempting to serve a person at Schrom's place of business because he did not know Schrom's home address. Deputy Harry Smith (Smith) had completed his shift and was standing on William Street next to his patrol car in front of the Sheriff's Office when Laurey pulled up in the mini-van alongside Smith at approximately 5:04 p.m. Laurey initiated a conversation with Smith about delivering papers to Schrom. Credible evidence indicates that the papers were identified as legal papers for Schrom and that Smith asked if they allowed for third-party service. Significantly, nothing was said about the need for service on that day. Indeed, also significant is that Smith advised Laurey that he would not be able to deliver the papers to Schrom that day.
The Board's decision invalidating Laurey's independent nominating petition, though, prominently displayed Schrom's residential address on the face of the first page.
Without reading the papers, Smith returned to the Sheriff's Office, deposited the papers in the Civil Division office (which was closed) and then went home. Upon returning to work on September 16, 2013, someone in the Civil Division delivered the papers to Schrom in his office. Schrom received another copy by U.S. Mail on the same day.
DISCUSSION
"An objector of whom the candidate has notice is a necessary party to subsequent judicial proceedings brought by the candidate to validate his stricken designating petition" (Matter of Butler v Hayduck, 37 NY2d 497, 498 [1975]; see CPLR 1001 [a]; 1003; 3211 [a] [10]; see e.g. Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614, 616 [1979]; Matter of Fagelson v McGowan, 301 AD2d 652, 652 [2d Dept 2003], lv denied 100 NY2d 503 [2003]; Matter of Shaw v Sadowski, 87 AD2d 770, 770 [1st Dept 1982]; Matter of Gartner v Salerno, 74 AD2d 958, 959 [3d Dept 1908]; cf. Matter of Straniere v Cutolo, 42 NY2d 984, 986 [1977]). The failure to properly and timely serve an indispensable party precludes the court from entertaining the entire proceeding (Ulster County Bd. of Elections, supra, at 616). Thus, even assuming, without deciding, that the Board has been properly and timely served, if service upon Schrom was ineffectual, the proceeding must be dismissed in its entirety (see Mahoney supra at 970).
A proceeding to contest the invalidation of a nominating petition is governed by the statute of limitations provisions of Election Law § 16-102(2) (Matter of Zicari v Stewart, 207 AD2d 951, 951-52 [4th Dept 1994]). Specifically, as relevant here, such a proceeding must be "instituted ... within three business days after the ... board ... makes a determination of invalidity with respect to such petition" (Election Law § 16-102 [2]). "A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102(2)" (Matter of Wilson v Garfinkle, 5 AD3d 409, 410 [2d Dept 2004] [emphasis added]; accord Matter of Littlewort v Board of Elections in City of NY, 87 AD3d 642, 643-44 [2d Dept 2011]; Matter of Matter of Green v Mahr, 230 AD2d 873, 873 [2d Dept 1996]; Matter of Barbarite v Hill, 197 AD2d 740, 741-42 [3d Dept 1993]). Unlike other potential irregularities, some cited by Counsel for Laurey at hearing, a court has no authority to extend the statute of limitations (see e.g. Matter of Marino v Orange County Bd. of Elections, 307 AD2d 1011, 1012 [2d Dept 2003], lv denied 100 NY2d 509 [2003]; Matter of Zaretski v Tutunjian, 133 AD2d 928, 929 [3d Dept 1987]; Matter of Lawler v Power, 13 Misc 2d 344, 345 [Sup Ct, New York County 1958]; Matter of Harvey v Board of Elections, 138 Misc 837, 838 [Sup Ct, New York County 1929]; see also Matter of Helfer v Amos, 198 AD2d 887 [4th Dept 1993], revg 159 Misc 2d 65 [Sup Ct, Erie County 1993]), or to permit service after that period, which is, of course, why the amended order to show cause with the new service completion date was issued.
An Election Law proceeding may be commenced by notice or by order to show cause (see CPLR § 105 [b]; 304 [a]; 403 [d]). When commenced by order to show cause, "[t]he method of service directed in [the] order ... must be reasonably calculated to give notice to the necessary parties so that receipt of such notice would normally be expected within the statutory [three]-day period for commencing a proceeding concerning the validity of a designating petition" (Matter of Elston v Mahoney, 122 AD2d 969, 970 [3d Dept 1986] [emphasis added], lv dismissed, lv denied 68 NY2d 765 [1986]; accord Matter of Contessa v McCarthy, 40 NY2d 890, 891 [1976]; Matter of Henry v Trotto, 54 AD3d 424, 425 [2d Dept 2008]). In addition, the method invoked must be "made at such time and in such manner as would normally be expected to result in receipt within the statutory period" (Contessa, supra, at 891[emphasis added]). Where receipt would not normally be expected within the statute of limitations, then a court must "determine whether actual receipt had in fact been timely" (id.). If, on the other hand, "it [i]s reasonable to expect receipt within the required time frame [,] [p]roof of actual receipt [i]s not required" (Matter of Fulani v Barasch, 166 AD2d 741, 743 [3d Dept 1990]; accord Matter of Baldwin v Scaringe, 176 AD2d 993, 993 [3d Dept 1991]; Matter of Hervey v Green County Bd. of Elections, 166 AD2d 743, 744 [3d Dept 1990]).
Here, the amended order to show cause authorized Laurey to effect service of the order and supporting papers on the Respondents by use of either of two methods: (a) by personal service or (b) by delivery to a person of suitable age and discretion at the residence/place of business of each Respondent, together with mailing by first class mail to the residence/office address of each Respondent on or before September 11, 2013. Rather than attempt to effect service by delivering the amended order to show cause and supporting papers directly to Schrom (thereby ensuring not only expected, but actual, receipt), Laurey opted to attempt service upon Schrom indirectly through a person of "suitable age and discretion."
"Personal delivery" directly to a party is a sub-category of, and should be distinguished from, "personal service." "Personal service" refers to any of the methods of service enumerated in CPLR 308.
Significantly, the credible evidence reveals that Houseknecht delivered the amended order to show cause and supporting papers to Smith on September 11, 2013 at approximately 5:04 p.m. in the street outside Schrom's actual place of business. Smith advised Houseknecht that he was off duty and would not be able to redeliver the papers to Schrom that day—the last day within the statute of limitations period. Under all the circumstances, while the method of service itself (in other words, delivery to a person of suitable age and discretion) was inherently reasonable, by delivering the process to an off-duty deputy, on the street, outside the Sheriff's Office, after Smith specifically advised Laurey and Houseknecht that he would not be able to redeliver the papers to Schrom before the end of the statute of limitations period, the court finds that service was not "effected at such time and in such manner as would normally be expected to result in receipt within the statutory period" (Hervey, supra, at 744). Moreover, since it is also undisputed that Schrom did not actually receive the papers until September 16, 2013, the court is constrained to conclude that service on Schrom was untimely.
Similarly, "service to a person of suitable age and discretion at a [party]'s actual place of business presumes that the business relationship between the deliveree and the [party] will induce the prompt redelivery of the [papers] to the [party], and therefore service would be reasonably calculated to apprise [the party] of the pendency" of the court proceeding within the statute of limitations (Acsendio-Sutphen v McDonald's Corp., 16 Misc 3d 184, 187-88 [Sup Ct, Bronx County 2007] [internal quotations marks and citations omitted]). Thus, for example, delivery to receptionists (see Townsend v Hanks, 140 AD2d 162, 162 [1st Dept 1988]; Albilia v Hillcrest General Hosp., 124 AD2d 499, 500 [1st Dept 1986]; Donaldson v Melville, 124 AD2d 361, 362 [3d Dept 1986] [delivery to a "receptionist, who promised to give the papers to defendant" constituted "deliver[y] to a suitable person at defendant's place of business"], lv denied 69 NY2d 604 [1987]), doormen (see Charnin v Cogan, 250 AD2d 513, 517 [1st Dept 1998], quoting F.I. duPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 795 [1977]; Roldan v Thorpe, 117 AD2d 790, 791 [2d Dept 1986]), and security guards (see U.S. 1 Brookville Real Estate Corp. v Spallone, 21 AD3d 480, 481-82 [2d Dept 2005]; Dean v Sarner, 201 AD2d 770, 771 [3d Dept 1994]), are routinely characterized as persons of suitable age and discretion for purposes of accepting service of process. "Good faith is implicit in the spirit of the statutory scheme. If a [litigant] knows, or should know, that service according to the letter of the statute will not afford notice, then, by definition, it is not reasonably calculated to afford notice, and is constitutionally infirm" (City of New York v Chemical Bank, 122 Misc 2d 104, 107 [Sup Ct, New York County 1983] [citations omitted]). Here, unlike the usual duties of the examples given, Smith's duties did not include screening callers, announcing visitors or accepting messages and packages for delivery to Schrom and, given his specific statement that he would not be able to promptly deliver the papers to Schrom, it cannot be said that he "functioned as a responsible communicator" in this case (F.I. duPont, supra, at 797). Accordingly, under the circumstances, Smith was not a person of suitable age and discretion for purposes of accepting service as required by the amended order to show cause (see Matter of Grimaldi v Board of Elections of the State of NY, 95 NY3d 1644, 1645-46 [3d Dept 2012] ["The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with"], quoting Matter of Nunziato v Messano, 87 AD3d 647, 647 [2d Dept 2011]; accord Matter of Rotanelli v Board of Elections of Westchester County, 109 AD3d 562, 562-63 [2d Dept 2013]; Matter of Kiernan v New York State Bd. of Elections, 95 AD3d 1242, 1243[2d Dept 2012], lv denied 19 NY3d 805 [2012]; Matter of Haggerty v Queens County Republican Comm., 92 AD3d 681, 681-82 [2d Dept 2012]; Matter of Murphy v Acito, 65 AD2d 662, 662 [3d Dept 1978]).
CONCLUSION
The amended order to show cause was not served at such time and in such a manner as would normally result in receipt within the statutory period. Moreover, service was not made to a person reasonably calculated to afford notice to Schrom. Schrom, in fact, did not receive a copy of the amended order to show cause until five days after the statute of limitations. Laurey, having failed to sustain his burden of proving timely and proper service of Schrom (see Country Side Sand & Gravel Inc. v Town of Pomfet Zoning Bd. of Appeals, 57 AD3d 1501, 1502 [4th Dept 2008], quoting Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993]; Lamarr v Klein, 35 AD2d 248, 250 [1970]; Hopkins v Tinghino, 248 AD2d 794, 795-96 [3d Dept 1998]), an indispensable party to this proceeding, the court must grant Schrom's motion to dismiss the entire proceeding (Matter of Sahler v Callahan, 92 AD2d 976, 977 [3d Dept 1983], citing CPLR § 1001 [a]; see CPLR 3211 [a] [5], [8]; see also Tecler v Lake George Park Commn., 261 AD2d 690, 691-92 [3d Dept 1999]).
In deciding this motion, the court has considered the following papers: (a) the order to show cause and amended order to show cause, dated September 11, 2013, and the papers on which it was granted; (d) the Board's verified answer and objections in point of law, verified on the 17th day of September 2013; (c) Schrom's answer, verified on the 19th day of September 2013; (d) the notice of Schrom's motion, dated September 18, 2013; (e) the affidavit of Schrom, sworn to on September 18, 2013, in support of the motion; (f) the affidavit of Smith, sworn to on September 18, 2013, in support of the motion; (g) the Memorandum of Law of Schrom's counsel, Jeffrey T. Buley, dated September 18, 2013, in support of the motion; (h) the Preliminary Memorandum of Law of Laurey's counsel, Jeffrey D. Walker, dated September 19, 2013, in support of the timeliness of the proceeding (among other things); (i) the Amended Affidavit of Smith, sworn to on September 20, 2013, in support of the motion; (j) the Memorandum of Law of Laurey's counsel, Jeffrey D. Walker, in Opposition to the Motion to Dismiss, dated September 24, 2013; (k) the affidavit of Mark D. Houseknecht, sworn to the 24th day of September 2013, with annexed exhibits; (l) the Memorandum of Law of Schrom's counsel, Jeffrey T. Buley, dated September 25, 2013; (m) the supplemental affidavit of Schrom, sworn to on the 25th day of September 2013; (n) the reply by letter of the Board's counsel, Bryan J. Maggs, dated July 25, 2013; (o) the sur-reply by letter of Laurey's counsel, Jeffrey D. Walker, dated September 25, 2013; (p) the testimony of Schrom, Smith and Houseknecht; and (q) Board exhibits A, B and C, admitted into evidence on September 27, 2013.
This constitutes the decision and order of the court.