Maneiro v Patterson
Annotate this CaseDecided on August 13, 2009
Supreme Court, Monroe County
Saul A. Maneiro, Petitioner,
against
Michael A. Patterson, and Thomas F. Ferrarese Commissioner of the Monroe County Board Of Elections, and Peter Quinn, Commissioner Of the Monroe County Board of Elections, Respondents.
09/10878
JASON E. SHELLY, ESQ., of Counsel
Attorney for Petitioner
Office and P.O. Address
6 Watchman Court
Rochester, NY 14624
HISCOCK & BARCLAY, LLP
ROBERT M. SHADDOCK, ESQ., of Counsel
Attorneys for Respondent Michael A. Patterson
Office and P.O. Address
2000 HSBC Plaza
100 Chestnut Street
Rochester, NY 14604
William P. Polito, J.
Petitioner by order to show cause seeks an order striking respondent's name from the Democratic Primary Ballot on the basis that respondent's designating petitions are permeated with fraud and the candidate himself participated in such fraud.
Respondent opposes and submits that the special proceeding is untimely and/or the
designating petitions are not permeated with fraud and should be validated.
Decision:
Petitioners application is dismissed as untimely.
Facts:
The petitioner commenced the proceeding by filing the petition with an unsigned order to
show cause without return date in the Monroe County Clerk's Office on July 29, 2009. The time
stamped order to show cause and attached petition were delivered to the Supreme Court Clerk's
Office on July 29, 2009 and assigned to Justice Polito and delivered on July 30, 2009. Justice
Polito was in attendance at the Judicial Education Seminar in Syracuse that day and the papers
were forwarded to the Ex Parte Judge Elma Bellini for signature on the afternoon of July 30,
2009. Justice Bellini signed the order to show cause on the morning of July 31, 2009 and the
papers were returned to petitioner's counsel that day. Petitioner personally served the order to
show cause on respondent on July 31, 2009 the same day the papers were signed.
Law and Rationale:
Under the circumstances, it is unnecessary to decide the substantive issues since the dispositive issue terminating the proceeding is the untimely institution of the proceeding pursuant to Election Law Section 16-102. NY CLS Election Law Section 16-102 states that "a proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later. The last day to file the petition was July 16, 2009 and the last day to "institute" a proceeding was July 30, 2009.
Although petitioner timely commenced the action within 14 days by filing the [*2]petition (CPLR 304) on July 29, 2009, the order to show cause was not signed nor served until July 31, 2009 one day after the expiration of the Statute of Limitations. The Fourth Department under similar circumstances has held that the failure to both file and serve an action challenging petitions under Election Law 16-102 within 14 days, even though one day later, as here, is, nevertheless, fatal and dismissal is required. (See Riley v. Democratic Party of Owasco, 21 AD3d 708, (4th Dept., 2005); Davis v. McIntyre, 43 AD3d 636, (4th Dept., 2007); Keane v. Clark, 43 AD3d 639, (4th Dept., 2007)). The three day invalidity rule set forth in Election Law Section 16-102 is only applicable to "candidates whose petitions have been invalidated" and not, as here, in actions challenging the validity of another candidate's petitions. (See Riley at 708).
Although dismissal seems harsh from a due process stand point where the papers have been timely filed with the Court, but the Court delays in the signing and returning the order to show cause. However, the Appellate Division in reviewing a similar situation alternatively determined that dismissal was still required. (Krenzer v. Town of Caledonia, 233 Ad2d 882, (4th Dept., 1996)). The Court focused on a portion of the mandated request that the respondent be served within 14 days. Dismissal was required even where the Court timely signs the order to show cause and extends the time to serve beyond the 14 day time limitation. (See Marino v. Orange County Board of Elections, 307 AD2d 1011, (2nd Dept., 2003)). This Court is bound to follow our Appellate Division's prior decisional precedence.
The case authority cited by petitioner in his responsive memorandum Pennington v. Clark and Castillo v. Navarro were non election law cases where the Court permitted extensions to serve pursuant to CPLR 306-b and CPLR 304 where the delay was caused by the Court. However, CPLR 306-b which permits the nunc pro tunc extension for good cause shown or in the interest of justice is not applicable in Election Law cases. (See CPLR 306-b; Pennington v. Clark, 16 AD3d 1049, (4th Dept., 2005); Castillo v. Navarro, 13 AD3d 329, (2nd Dept., 2004).
The Court of Appeals case also cited by petitioner supporting his position that the matter
should be deemed timely instituted is inapplicable to the case at bar. (Pell v. Covency, 37
NY2d 494, (1975); See Wilson v.
Garfinkle, 5 AD3d 409, (2nd Dept., 2004)).
In Pell, petitioners received notice of the Board's determination after the
time to commence the action had already expired, which is unlike the situation here. Further, at
the time of that 1975 decision, Election Law Section 16-102 provided for only 14 days to
institute the action rather than the greater of 14 days or three days after the determination of
validity. (See inapplicability under facts of this case-Wilson v. Garfinkle,
supra).
The case most supportive of petitioner's argument, Helfer v. Amos, 159 Misc 2d [*3]65, (Sup. Ct., Erie County, 1993) improperly applied extensions under CPLR 306-b which section is specifically inapplicable to Election Law cases. Further, that trial level decision was prior to the Fourth Department cases specifically on point and cited herein above.
Accordingly, although harsh in its result, this Court is bound to follow the Fourth Department's prior case decisions and dismiss the petition.
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry.
SO ORDERED.
Dated this 12th day of August, 2009 at Rochester, New York.
______________________________
HON. WILLIAM P. POLITO
JUSTICE SUPREME COURT
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
