Summary
In Matter of Bruno v. Peyser (40 N.Y.2d 827), the Court of Appeals affirmed this court's dismissal of a proceeding, on timeliness grounds, which had not been commenced within the 14-day period required by statute.
Summary of this case from Matter of Schneeberg v. N.Y. St. Bd. of ElecOpinion
Argued September 8, 1976
Decided September 9, 1976
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROGER J. MINER, J.
Frederick P. Roland for Richard Bruno, appellant.
John C. Rice, Carroll J. Mealey, Michael J. Cunningham and Michael T. Wallender for Peter Peyser, respondent.
David E. Blabey for New York State Board of Elections, respondent.
MEMORANDUM. Since the order appealed from is in form a reversal, but in fact affirmed the order and judgment of Special Term, leave to appeal is granted by this court sua sponte.
The petitioner, Richard Bruno, instituted this proceeding to contest the election petition of Peter Peyser, a candidate for the Republican nomination for the United States Senate. The respondent did not actually receive the mailed service of process until after the expiration of the 14-day limitation period imposed by subdivision 1 of section 330 of the Election Law. Hence, this proceeding was not timely. (Matter of Burton v Coveney, 32 N.Y.2d 842; Matter of Thompson v Board of Elections, 40 N.Y.2d 814 [decided Sept. 2, 1976].) Matter of Pell v Coveney ( 37 N.Y.2d 494), relied upon by petitioner, has no application where it is the objector, and not the candidate, who receives notice of an adverse Board of Elections decision after the expiration of the 14-day period. Objectors, unlike candidates, have sufficient knowledge and information regarding the nature of the objections in order to enable them to commence a timely proceeding to invalidate designating petitions without the need to await a determination of the Board of Elections. The order of the Appellate Division should be affirmed.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Appeal taken as of right dismissed, without costs.
Leave to appeal granted by the court sua sponte.
Order affirmed, without costs.