Opinion
September 11, 1975
Appeal from the Onondaga Supreme Court.
Present — Marsh, P.J., Moule, Mahoney, Goldman and Witmer, JJ. (Order entered August 27, 1975.)
Order unanimously affirmed, without costs. Memorandum: Special Term denied petitioner's application on the ground that he had not complied with section 145 of the Election Law. As a candidate aggrieved, petitioner was not required to do so (Election Law, § 330, subd 1; Matter of Burns v Wiltse, 303 N.Y. 319; Matter of Fleishman v Board of Elections of County of Nassau, 31 Misc.2d 326, 328; Matter of Chonin v Millspaugh, 13 Misc.2d 841; Matter of Le Sawyer v Board of Elections of Columbia County, 207 Misc. 12, 16; Matter of O'Connor [Babcock], 180 Misc. 630, 632; Gassman, Election Law, p 267). We affirm the order of Special Term, however, on other grounds. Subdivision 1 of section 330 of the Election Law provides that "a proceeding under this subdivision must be instituted within fourteen days after the last day to file petitions". Failure to comply with the statutory time period is a jurisdictional defect (Matter of Ullman v Power, 36 Misc.2d 1015, 1018, affd 17 A.D.2d 792, affd 12 N.Y.2d 724). The last day to file designating petitions was July 24, 1975. Notice was mailed on August 7, 1975 and received on August 8, 1975. While this was within the time period specified in the order to show cause, it was one day beyond the 14-day requirement of section 330. Mailing on the last permissible day is insufficient to institute a proceeding under subdivision 2 of section 330 of the Election Law (Matter of Weiser v Power, 29 A.D.2d 640), and the statutory period of limitations may not be extended by the court (see Matter of Ullman v Power, supra; Dyte v Lawley, 20 Misc.2d 988; Matter of Kaplan v Meisser, 196 Misc. 6; Ramos-Lopez v Heffernan, 64 N.Y.S.2d 603). Thus, the untimeliness of service requires dismissal of this proceeding.