Opinion
October 20, 1970
In a proceeding pursuant to section 330 of the Election Law (1) to invalidate the Democratic Party Primary Election held on June 23, 1970 for the party position of Assembly District Leader, Female, for the 30th Assembly District, Part A, Queens County, and (2) to direct that a new Primary Election for said position be held, petitioner appeals from a judgment of the Supreme Court, Queens County, entered August 11, 1970, which dismissed the petition. Judgment reversed, on the law, without costs, and proceeding remitted to the Special Term for proceedings consistent herewith. The findings of fact below are affirmed. Pursuant to subdivision 2 of section 330 of the Election Law, the last day on which this proceeding could be instituted was July 3, 1970. On that day, pursuant to an order to show cause which directed service in specified ways, copies of the order and petition were served on respondent Norma H. Keane, the successful candidate, by affixing them to the front door of her residence (a one-story, two-family home) and by mailing them to her. The specified ways of service, as stated in the order, were in the alternative and therefore it is our opinion that, since the copies of the order and petition were timely affixed to the front door, the fact that they were not received in the mail on July 3, 1970 was not a jurisdictional defect. Since this was the sole ground for the dismissal of the proceeding by the Special Term, the proceeding should be remitted to the Special Term for proceedings not inconsistent herewith ( Matter of O'Connor v. Power, 30 A.D.2d 926). Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.