Dowd & Marotta (Raymond J. Dowd of counsel), for petitioner.
Thomas V. Ognibene for Ryan Walsh, respondent.
Martin Schoenfeld, J.
The most interesting of the several issues that this Election Law article 16 special proceeding raises is whether a court can invalidate a designating petition that the court finds is permeated with fraud if the objector thereto fails to serve the candidate with notice of the proceeding in a manner reasonably calculated to reach the candidate prior to the end of the period during which the proceeding had to be commenced. This
court concludes, reluctantly, that the law does not allow such invalidation. Other related issues, in this rather disturbing case, involve the service requirement for commencing such proceedings and the requirements of CPLR 3013 " notice pleading" therein.
Respondent Ryan Walsh (Walsh) submitted a designating petition for the September 2001 primary ballot to the Board of Elections in the City of New York (the Board). The petition indicates that Walsh lives in Queens and is seeking the Republican Party nomination for the office of Member of the New York City Council from the 20th Councilmanic District, Borough of Queens. Petitioner Paul Graziano (petitioner), who is a candidate for the same office, filed objections. Petitioner thereafter commenced the instant proceeding as an aggrieved candidate. His order to show cause states that petitioner is seeking to invalidate the designating petition of Walsh as a candidate for the " Public Office of Member of Assembly [from] the 62nd Assembly District, New York County, City and State of New York in the Republican Party Primary Election to be held September 12, 2000." Likewise, the text of the petition makes repeated references to the 62nd Assembly District, the September 2000 Republican Party Primary, and other confusing information. Little, if anything, other than Graziano's and Walsh's names, is present to connect the papers to the 20th District City Council race.
Pursuant to Election Law § 6-158, Walsh's designating petition had been due by July 12, 2001. Pursuant to Election Law § 16-102 (2), petitioner had to commence the instant proceeding by July 26, 2001. On this last day, petitioner brought his order to show cause and petition to court.
An Election Law special proceeding must be commenced upon such notice to such officers, persons or committees as the court shall direct. (Election Law § 16-116.) A justice signed the order to show cause on the 26th and directed that service upon Walsh be by personal delivery that same day. The justice emphatically struck out all of the alternative methods of service proposed by petitioner.
Petitioner has submitted an affidavit of service of a Gerard Rotondi, who states as follows:
" on July 26, 2001 I personally made several attempts, the last at 11:30 P.M ., to serve the attached order to Show Cause [and] Petition ... upon:
RYAN J. WALSH 149-49 ELM AVENUE FLUSHING, N.Y. 11355
but was unable to personally serve ... Walsh. An attempt was made to leave the above with a person of reasonable age and discretion ... Mr. Walsh's neighbors on the first floor; however, they refused service. I then affixed the Order to Show Cause [etc.] upon the inner door of 149-49 Elm Avenue and mailed the same in a sealed envelope, with postage prepaid ... directed to the address set out above."
Walsh has submitted an affidavit, dated August 13, 2001, in which he states that he resides at 149-49 Elm Avenue in Flushing. He has acknowledged that he actually received both the " affixed" and the " mailed" service on July 27, 2001. Allegedly, he ignored the papers because he is not a ...