Fotopoulos v. BermanFotopoulos v. Berman
Appeal from a judgment of the Supreme Court (Benza, J.), entered October 1, 2002 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to Election Law § 16-102, to validate the independent nominating petition naming petitioners as candidates of the Reform Party for various statewide public offices in the November 5, 2002 general election.
On August 20, 2002, an independent nominating petition was filed with the State Board of Elections naming petitioners, Harry Fotopoulos, Jose I. Adames, Dominick Fusco and Ruben Vargas, as candidates of the Reform Party for the respective public offices of Governor, Lieutenant Governor, Attorney General and Comptroller in the November 5, 2002 general election. On August 23, 2002, respondent Maria A. Cornelia filed general objections to the petition with the Board. She alleges that on August 29, 2002, she filed with the Board by certified mail specific objections and on the same date served, by certified mail, copies of the specific objections on the individual petitioners. On August 30, 2002, Cornelia commenced a proceeding in Supreme Court to invalidate the independent nominating petition. This proceeding, however, was not pursued following the Board’s invalidation of the independent nominating petition on September 12, 2002.
Thereafter, petitioners commenced the instant proceeding against Comella and respondents Carol Berman, Neil W. Kelleher, Helena M. Donohue and Evelyn J. Acquila, Commissioners of the Board, seeking to validate the independent nominating petition. Following joinder of issue, Supreme Court held a hearing and ultimately granted respondents’ motion to dismiss the petition. This appeal by petitioners ensued.
Petitioners assert, inter alia, that the independent nominat
The parties agree that the last day to file and serve the specific objections was August 29, 2002. In support of their claim that the specific objections were untimely, petitioners rely upon Fotopoulos’s testimony and certain documentary evidence purportedly establishing that they were sent by express mail on August 30, 2002, more than six days after service of the general objections. However, the Board’s Deputy Director testified that, based upon a certified mail receipt, the specific objections were mailed to the Board on August 29, 2002. Moreover, the record contains copies of tbe certified mail receipts indicating that the specific objections were also mailed to the individual petitioners on August 29, 2002. While Fotopoulos testified that the mailing label attached to a box sent to him and other candidates by Cornelia bore a mailing date of August 30, 2002, he acknowledged on cross-examination that this box was sent in connection with the Supreme Court invalidation proceeding. Fotopoulos further acknowledged that he received a second box containing objections that was mailed August 29, 2002. Although still in his possession, Fotopoulos did not produce at trial the mailing label on the second box. Thus, we find that the specific objections were timely served and filed.
In addition, although 9 NYCRR 6204.1 (b) provides that service of the specific objections shall be made upon the individual candidates and requires that proof of service thereof be filed with the Board, it does not specify the form of proof of service. The Board’s practice of accepting certified mail receipts as proof of service, a manner less formal than that required under the CPLR, does not undermine the validity of the service (see Matter of Poulos v Mullarkey,
Crew III, J.P., Carpinello, Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.
Notes
We decline to consider the constitutional issue raised by petitioners for the first time on this appeal.