Opinion
August 19, 1987
Appeal from the Supreme Court, Rockland County (Weiner, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the application is granted to the extent that the Board of Elections of Rockland County is directed to afford enrolled Republican voters of Rockland County the opportunity to write in names of candidates for the office of Sheriff.
The petitioner Kerry T. Fortes filed a designating petition as a Republican Party candidate for the public office of Sheriff of Rockland County. Pursuant to Election Law § 16-102 (2), the last day to commence a proceeding with respect to the petition was July 30, 1987. On July 31, 1987, the petitioner received notice by mail of the decision of the Board of Elections of Rockland County to invalidate his designating petition. Thereafter, on August 5, 1987, the petitioner commenced the instant proceeding. The Supreme Court dismissed the proceeding, finding it to be untimely. We disagree.
The board of elections failed to notify the petitioner of its decision to invalidate the petition until after the statutory period had expired. Under such circumstances, strict adherence to the requirements of Election Law § 16-102 has been held to be unjust provided that it can be established that the petitioner has acted with due diligence to commence the proceeding following notification by the board (see, Matter of Pell v. Coveney, 37 N.Y.2d 494; Matter of Jones v. Sachs, 133 A.D.2d 195 [decided herewith]). Here, we conclude that the petitioner did in fact act with due diligence in commencing the proceeding within five days after notification of the board's action (see, Matter of Carr v New York State Bd. of Elections, 104 A.D.2d 577). Accordingly, the proceeding was timely brought.
At the oral argument of this appeal, the petitioner abandoned that part of his proceeding which sought to validate the petition. However, we grant his alternate prayer for relief to afford the Republican voters an opportunity to ballot at the primary election (see, Matter of Brown v. Ulster County Bd. of Elections, 48 N.Y.2d 614), as it would appear that there was an "intention * * * manifested to nominate some candidate" by the political party involved (Matter of Hunting v. Power, 20 N.Y.2d 680, 681). Brown, J.P., Weinstein, Eiber and Kooper, JJ., concur.