Angletti v. Morreale
Angletti v. Morreale
Opinion of the Court
OPINION OF THE COURT
On July 8, 2015, a designating petition was filed with the Niagara County Board of Elections (Board), naming respondent Marcus Morreale as a Democratic Party candidate for the office of Niagara County Legislator, Eighth District. Morreale initially declined the designation, thereby creating a vacancy. Thereafter, upon Morreale’s consent, the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the substitute candidate to fill the vacancy created by his own declination of the earlier designation (see Election Law § 6-148). The certificate was received by the Board on July 17, 2015. Petitioner filed a formal objection with the Board, which was rejected.
Supreme Court granted the petition and ordered the Board to strike Morreale’s name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced (131 AD3d 808 [4th Dept 2015]). Two Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period. Morreale appeals as of right pursuant to CPLR 5601 (a) and we now affirm.
Though the two-Justice dissent gives us jurisdiction to review the entire matter, we address with specificity only the issue upon which the dissent was grounded, inasmuch as Morreale’s other arguments are without merit.
Under Election Law § 16-116, a petitioner is required to provide notice “as the court or justice shall direct.” As we have previously held, “this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced” (Matter of King v Cohen, 293 NY 435, 439 [1944]).
We agree with the courts below that this proceeding was properly commenced in a timely manner. Here, there is no dispute that petitioner complied with the terms of the order to show cause by nailing the papers to the door of Morreale’s residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23. Morreale maintains that
To the extent Matter of Buhlmann v LeFever (83 AD2d 895 [2d Dept 1981], affd for reasons stated 54 NY2d 775 [1981]) may appear to reach a different result, that case is distinguishable. There, the petitioner attempted to accomplish both nailing and mailing on the last day service could be made. The Court observed that the papers were nailed to the outside wall of the residence instead of the door. The Court then stated that attempted service by mail on the final day “was inadequate and ineffectual to institute the proceeding” (Buhlmann, 83 AD2d at 896). By contrast here, as noted above, the instrument of notice had been properly delivered prior to the deadline.
Moreover, there is no sound reason to adopt a rule that would effectively shorten the very brief period of limitations applicable to election cases — ranging from 3 to 14 days (see Election Law § 16-102 [2]) — where the proceeding has already been timely commenced by filing, respondent already has notice thereof by the nailing method of service, and imminent delivery of the mailing made within the limitations period can be expected.
Accordingly, the order of the Appellate Division should be affirmed, without costs.
Order affirmed, without costs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.