Opinion
2018–09747 Index No. 6029/18
08-22-2018
In the Matter of Victoria NOWINSKI, et al., appellants, v. NEW YORK CITY BOARD OF ELECTIONS, et al., respondents.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Board of Elections in the City of New York, sued herein as the New York City Board of Elections, rejecting the petitioners' objections to a petition designating the respondent Thomas P. Sullivan as a candidate in a primary election to be held on September 13, 2018, for the nomination of the Independence Party as its candidate for the public office of State Senator for the 15th Senatorial District, and to compel the respondent Board of Elections in the City of New York, sued herein as the New York City Board of Elections, to remove the respondent Thomas P. Sullivan's name from the ballot for such election, the petitioners appeal from a judgment of the Supreme Court, Queens County (Richard G. Latin, J.), entered August 9, 2018. The judgment denied the petition and dismissed the proceeding as time-barred.
ORDERED that the judgment is affirmed, without costs or disbursements.
The respondent Thomas P. Sullivan filed a petition with the respondent Board of Elections in the City of New York, sued herein as the New York City Board of Elections (hereinafter the Board), designating him as a candidate in a primary election to be held on September 13, 2018, for the nomination of the Independence Party as its candidate for the public office of State Senator for the 15th Senatorial District. The petitioners subsequently filed general objections and specifications of objections challenging the adequacy of Sullivan's designating petition. The Board thereafter notified the petitioners that their objections were defective, and offered them an opportunity to be heard with respect to that issue. The petitioners did not appear for the hearing, and Sullivan remained on the ballot as a candidate. The petitioners thereafter commenced this proceeding pursuant to CPLR article 78, inter alia, to review the Board's determination rejecting their objections and to compel the Board to remove Sullivan's name from the ballot.
It is undisputed that the petitioners commenced this proceeding challenging the Board's actions and the adequacy of Sullivan's designating petition after the expiration of the 14–day limitations period set forth in Election Law § 16–102(2). Accordingly, the Supreme Court denied the petition and dismissed the proceeding as time-barred. We affirm.
We agree with the Supreme Court's dismissal of the proceeding as untimely, as it was not commenced within the period prescribed by Election Law § 16–102(2) (see Matter of Sayegh v. Scannapieco, 10 A.D.3d 439, 780 N.Y.S.2d 743 ; Matter of Krupczak v. Mancini, 153 A.D.2d 785, 786, 545 N.Y.S.2d 51 ). Although the petitioners commenced this proceeding pursuant to CPLR article 78, they seek to remove Sullivan's name as a candidate from the ballot based on an alleged failure to comply with the requirements for a valid designating petition under the Election Law. Accordingly, this proceeding is governed by the statute of limitations set forth in the Election Law (see Matter of Ciotti v. Westchester County Bd. of Elections, 109 A.D.3d 988, 989, 972 N.Y.S.2d 524 ; Matter of Lewis v. Garfinkle, 32 A.D.3d 548, 549, 821 N.Y.S.2d 607 ; Matter of Scaringe v. Ackerman, 119 A.D.2d 327, 328–329, 506 N.Y.S.2d 918, affd 68 N.Y.2d 885, 886, 508 N.Y.S.2d 944, 501 N.E.2d 593 ; Matter of Murray v. Lord, 46 A.D.2d 721, 361 N.Y.S.2d 96, affd 35 N.Y.2d 737, 361 N.Y.S.2d 909, 320 N.E.2d 644 ). Moreover, as unsuccessful objectants to Sullivan's candidacy, the petitioners were required to commence the proceeding within the 14–day limitations period even if they did not receive notice of the Board's decision during that time period (see Matter of Thompson v. Wallace, 45 N.Y.2d 803, 804, 409 N.Y.S.2d 6, 381 N.E.2d 164 ; Matter of Bruno v. Peyser, 40 N.Y.2d 827, 828, 387 N.Y.S.2d 563, 355 N.E.2d 792 ; Matter of Krupczak v. Mancini, 153 A.D.2d at 786, 545 N.Y.S.2d 51 ).
In view of the foregoing, we need not consider the petitioners' remaining contentions.
MASTRO, J.P., LEVENTHAL, MILLER, HINDS–RADIX and IANNACCI, JJ., concur.