Opinion
March 11, 1988
Appeal from the Supreme Court, Westchester County (Ruskin, J.).
Ordered that the judgment in proceeding No. 1 is affirmed, without costs or disbursements; and it is further,
Ordered that the appeal from the judgment in proceeding No. 2 is dismissed as academic, without costs or disbursements, in light of our determination with respect to the judgment in proceeding No. 1.
The Supreme Court properly dismissed the validation proceeding (proceeding No. 1) as jurisdictionally defective because of the petitioners' failure to effectuate personal service upon objector Sunderland within the prescribed period of 14 days after the last day to file petitions (see, Election Law § 16-102; Matter of Gadsen v. Board of Elections, 57 N.Y.2d 751; Matter of Wein v Molinari, 51 N.Y.2d 717; Matter of Macri v. D'Apice, 122 A.D.2d 905; Matter of Fratello v. Kruger, 64 A.D.2d 937; Matter of Bruno v. Ackerson, 51 A.D.2d 1051, affd 39 N.Y.2d 718). Matter of Pell v. Coveney ( 37 N.Y.2d 494), upon which the petitioners rely, is distinguishable; the delay of the Westchester County Board of Elections in issuing its determination herein invalidating the petition until after the last day for commencing a proceeding did not cause proceeding No. 1 to be untimely. Instead, the petitioners in proceeding No. 1 actually attempted to commence the proceeding within the statutory time limit but did not do so properly. Thus, the untimeliness of proceeding No. 1 was due to the petitioners' actions (see, Matter of Elston v. Mahoney, 122 A.D.2d 969). Accordingly, the Supreme Court properly dismissed proceeding No. 1 for lack of jurisdiction. Thompson, J.P., Brown, Weinstein and Balletta, JJ., concur.