Stempel v. Kinley

Appeal from an order of the Supreme Court (Connor, J.), entered October 15, 1991 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to Election Law § 16-102, to declare valid the caucus report naming certain persons as the Conservative Party candidates for various offices in the Town of Berne in the November 5, 1991 general election.

On September 7, 1991, the Conservative Party caucus for the Town of Berne in Albany County was held. While the statute required that the caucus report nominating the party’s candidates be filed by September 17, 1991 (Election Law § 6-158 [6]), it was not mailed until September 18, 1991 and was not received by the Albany County Board of Elections until a day later. The Board thereafter voted unanimously to invalidate the nominating report for not being filed within the time *1064limitations of Election Law § 6-158 (6) and § 1-106. Petitioner, a Conservative Party candidate whose nomination was invalidated, commenced this proceeding to challenge the Board’s determination. Supreme Court dismissed the petition and we affirm. It is well settled that the failure to file within the mandatory time limits prescribed by the Election Law is a "fatal defect” (Election Law § 1-106 [2]; see, e.g., Matter of Rutherford v Jones, 128 AD2d 978, 979, lv denied 69 NY2d 606) and "the judiciary may not fashion exceptions, however reasonable they might be made to appear” (Matter of Tobin v May, 72 AD2d 648).

Weiss, J. P., Mikoll, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.