Matter of Darryl C. Towns v Cyril F. Joseph

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Matter of Towns v Joseph 2004 NY Slip Op 06410 [10 AD3d 435] August 19, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 6, 2004

In the Matter of Darryl C. Towns, Appellant, et al., Petitioners,
Cyril F. Joseph, Respondent, et al., Respondents.


In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Cyril F. Joseph as a candidate in a primary election to be held on September 14, 2004, for the nomination of the Democratic Party as its candidate for the public office of Member of the Assembly, 54th Assembly District, and for the party position of Male Member of the Democratic State Committee, 54th Assembly District, the petitioner Darryl C. Towns appeals, as limited by his brief, from so much of a final order of the Supreme Court, Kings County (Levine, J.), dated August 13, 2004, as denied so much of the petition as was to invalidate the petition designating Cyril F. Joseph and dismissed the proceeding insofar as asserted by him.

Ordered that the final order is reversed insofar as appealed from, on the law, without costs or disbursements, the petition designating Cyril F. Joseph is invalidated, and the Board of Elections of the City of New York is directed to remove the name of Cyril F. Joseph from the appropriate ballots.

Under the circumstances of this case, as it appears that Cyril F. Joseph was evading service of process when he closed the door on the process server, we find that service was properly made on Joseph's wife when she opened the door immediately thereafter (see Lefton v Freedman, 163 AD2d 360 [1990]).

Based on statements made at oral argument, we conclude that there is no issue that Joseph's designating petition did not contain the necessary number of signatures (see Election Law § 6-136 [2] [i]). Therefore, his designating petition should have been invalidated and his name removed from the appropriate ballots. [*2]

Joseph's remaining contentions are without merit. Ritter, J.P., H. Miller, S. Miller and Spolzino, JJ., concur.