Matter of Ragusa v Board of Elections in the City of New York

[*1] Matter of Ragusa v Board of Elections in the City of New York 2014 NY Slip Op 50293(U) Decided on March 3, 2014 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2014
Supreme Court, Queens County

IN THE MATTER OF THE APPLICATION OF Philip Ragusa, Petitioner(s)

against

The Board of Elections in the City of New York, THE NEW YORK STATE BOARD OF ELECTIONS, ROBERT L. TURNER, JOAN M. VOGT, ANTHONY NUNZIATO, SALVATORE BACARELLA, BART J. HAGGERTY, WILLIAM JOHNERT, THOMAS V. OGNIBENE, MEI LIN TAN, OLIVER G. TAN, JANICE E. BAR, CARL C. ALIVIADO, AMANDA RYAN, SHEILA PERALTA, KATHERINE A. JAMES, MARIE WARHOLA, MARGARET OGNIBENE, AMY HOLDEN, DENIS RING, KEVIN RYAN, ROBERT M. SCHWACH, SCOTT E. JORDAN, PHILIP T. SICA, FRANCES M. SCHMIDT, NAZIA MOHAMMED, JOANNE R. MUGNO, MATTHEW D. HUNTER, JOHN WATCH, LATCHMAN BUDHAI, AMANDA M. KOHUT, MICHAEL F. WATSON, FERDINAND BAYBAY, JOHN D. CALCAGNILE, EDWARD J. CARROLL AND RUDOLPH S. GIULIANI, Respondent(s), For an order pursuant to N.Y. Election Law Sec. 16-102 invalidating and vacating the purported Certificate of Names and Post Office Addresses of Officers Elected at the Party Organization Meeting of the Republican Party of Queens County which fraudulently certified that the individual respondents had been elected as officers of the Queens County Republican County Committee at the aforesaid Organizational meeting held on September 27, 2013.



18674 2013

Phyllis Orlikoff Flug, J.



Petitioner, Philip Ragusa, seeks, inter alia, a judgment declaring invalid the Certificate of Names and Post Office Addresses of Officers Elected at a party organization meeting of the Republican Party of Queens County held on September 27, 2013 and filed with respondent Board of Elections in the City of New York.

Respondents separately move for an order dismissing the petition on the grounds of statute of limitations and lack of personal jurisdiction.

The petition and respondents' motion are consolidated for the purposes of a single decision and order.

At the outset, the court notes that although petitioner's counsel in response to the motion to dismiss has submitted an "affirmation in support of a cross motion for preliminary injunction", a notice of cross motion does not appear to have been submitted to the court. Therefore, as the petitioner's cross motion for a preliminary injunction is not properly before the court, this request will not be considered.

The order to show cause dated October 7, 2013 directed petitioner Philip Ragusa to [*2]serve a copy of the order to show cause and all ancillary papers on the individual respondents by personal service on or before October 8, 2013 at 3 p.m.; on respondent Board of Elections in City of New York on or before October 8, 2013 at 3 p.m. by delivery to a person of suitable age and discretion at the Queens County Board of Election; and on respondent New New York State Board of Elections by overnight mail, sent on or before October 7, 2013. The return date of the order to show cause was October 9, 2013.

The petitioner bears the ultimate burden of establishing that the court has personal jurisdiction over the respondents (see Frankel v Schilling, 149 AD2d 657, 659 [1989]). "The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" (Matter of Hennessey v DiCarlo, 21 AD3d 505, 505 [2005], appeal denied 5 NY3d 706 [2005]; see also Matter of Rotanelli v Board of Elections of Westchester County, 109 AD3d 562 [2d Dept 2013]; Matter of Kiernan v New York State Bd. of Elections, 95 AD3d 1242 [2d Dept 2012]; Matter of Haggerty v Queens County Republican Comm., 92 AD3d 681 [2d Dept 2012]).

The affidavits of service submitted herein establish that petitioner has failed to comply with the terms of the order to show cause. No affidavit of service was submitted with respect to respondent New York State Board of Elections. Rather, petitioner submitted a copy of a FEDEX receipt and tracking information which indicates that a package was mailed by Lawrence Mandelker, petitioner's counsel, to the New York State Board of Elections on October 7, 2013 and was received on October 8, 2013. Mr. Mandelker, in his opposing affirmation, simply states that "service was made" on the State Board of Elections on October 7, by overnight mail, and refers the court to Exhibit F which consists of the FEDEX receipt and tracking information. Mr. Mandelker, however, does not state that he prepared the FEDEX package, or witnessed its preparation, and that said package included a copy of the order to show cause and supporting papers. Mr. Mandelker's affirmation, therefore, is insufficient to establish that the order to show cause and supporting papers were served on respondent New York State Board of Elections (CPLR 306 [a]).

No affidavit of service was submitted with respect to respondent Board of Elections in the City of New York. Mr. Mandelker in his affirmation, merely states that service was made on this respondent by personal delivery prior to 3 p.m. on October 8, 2013, and refers the court to Exhibit G. Said exhibit consists solely of a copy of the order to show cause, and thus is insufficient to establish service of process was made on this respondent.

With respect to the thirty-six individually named respondents, the court directed that personal service, i.e. service pursuant to CPLR 308, be made on each of these respondents on or before October 8, 2013, by 3 p.m. Petitioner has submitted thirty-six affidavits from two process servers. A review of the affidavits of service reveals that 5 individual [*3]respondents were personally served pursuant to CPLR 308(1); 18 individual respondents were purportedly served pursuant to CPLR 308(2) and 12 individual respondents were served pursuant to CPLR 308(4).

Petitioner admits that respondent Janice E. Bar was not served with process was not served due to an incorrect address listed in the certificate filed with the Board of Elections. The affidavit of service submitted for Ms. Bar states that the address listed does not exist. The mailing of the order to show cause and supporting papers to said non-existent address is insufficient to establish that this respondent was personally served with process.

Respondent Margaret Ognibene states in her affidavit that on October 8, 2013 she walked her dog at approximately 3:30 p.m., and discovered two copies of the order to show cause and petition. She states that had been in and out of the house all morning but was home all afternoon and did not previously see said papers. She further states that on October 9, 2013, she found two envelopes in her mail slot addressed to herself and to her husband, respondent Thomas Ognibene. She states that the envelopes each have a private mailing label indicating that they were mailed on October 8, 2013, but neither appear to be cancelled by the United States Post Office. She states that she believes that these envelopes were deposited in her mail slots by agents of the petitioner.

With respect to the individuals served with process on October 7, 2013, and on October 8, 2013, pursuant to CPLR 308(4), in each instance, the process server states he rang the door bell of the residence of the named individual, at the stated address and time; that there was no answer; and that he affixed the order to show cause, verified petition and exhibits on the front door. A copy of the order to show cause, verified petition and exhibits were mailed to each of these individuals on October 8, 2013.

Service of process, pursuant to CPLR 308, must be made in strict compliance with the statutory methods for effecting personal service upon a natural person (see Dorfman v Leidner, 76 NY2d 956, [1990]; see also Macchia v Russo, 67 NY2d 592 [1986]; Estate of Waterman v Jones, 46 AD3d 63 [2007]). Service pursuant to CPLR 308(4) may be made "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode," only where the alternate methods of personal service provided for in CPLR 308(1) or(2) "cannot be made with due diligence" (Gurevitch v Goodman, 269 AD2d 355, 355 [2000] [internal quotation marks omitted]; see Kalamadeen v Singh, 63 AD3d 1007, 1008 [2009]; McSorley v Spear, 50 AD3d 652, 653 [2008]).

With respect to 18 individual defendants, the affidavits of service fail to establish that the process server exercised "due diligence" in attempting to effectuate service pursuant to CPLR 308(1) or (2) prior to resorting to the "affix and mail" method pursuant to [*4]CPLR 308(4) (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., 78 AD3d 902 [2010]; Lombay v Padilla, 70 AD3d 1010, 1012 [2010]; Kalamadeen v Singh, 63 AD3d at 1008).

Under these circumstances, the service of the order to show cause, verified petition and supporting papers pursuant to CPLR 308(4) was defective as a matter of law (see JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd., supra; Earle v Valente, 302 AD2d 353[2003]; Gurevitch v Goodman, 269 AD2d at 356).

Respondent Robert Turner, in his affidavit, states that he resides at 175 Ocean Avenue, Breezy Point, New York; that he was not personally served with any papers process in this proceeding; that no one who resides with him was served with papers; and that no papers were placed at, or affixed to, his residence. Mr. Turner states that he was advised that a member of his cooperative board received a package of legal papers, but that he did not authorize this person to act on his behalf or receive service on his behalf. He states that said staff person later forwarded those papers to him by regular mail.

With respect to Mr. Turner, the affidavit of service states that on October 8, 2013, the order to show cause and supporting papers were served at 175 Ocean Avenue, Breezy Point, New York, by serving "LAURA BARBOSA COMMUNITY ADM. ASST. WHO REFUSED ACCESS AUTHORIZED TO ACCEPT PER COMMUNITY POLICY", and that a copy of these papers were mailed to said address on October 8, 2013, said address being "the usual place of abode, last known residence of the DEFENDANT".

As said affidavit of service fails to state to set forth the time service, petitioner has failed to establish that Mr. Turner was served by the prescribed time. Therefore, the court need not decide whether Ms. Barbosa was a person of suitable age and discretion, under CPLR 308(2).

In view of the fact that petitioner has failed to establish that all of the respondents, who are necessary parties to this proceeding, were served in the manner prescribed in the order to show cause, the court lacks jurisdiction over the respondents(see Crown Waterproofing Inc. v Tadco Constr. Co., 99 AD3d 964 [2d Dept 2012]). Respondents' motion to dismiss the petition, therefore, is granted, and petitioner's request for relief is denied as academic.

Dated: March 3, 2014

J.S.C.