Leahy v. O'Rourke

Aug 20, 2003
Versions:307 A.D.2d 1008
763 N.Y.S.2d 508

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Denise K. O’Rourke as a candidate in a primary election to be held on September 9, 2003, for the nomination of the Independence Party as its candidate for the public office of Nassau County Legislator for the 18th Legislative District, the petitioners appeal from a final order of the Supreme Court, Nassau County (Austin, J.), dated August 14, 2003, which, after a hearing, dismissed the petition for failure to properly serve Denise K. O’Rourke and denied the petition on the merits.

Ordered that the final order is reversed, on the law and the facts, without costs or disbursements, the petition is granted, the designating petition is invalidated, and the Nassau County Board of Elections is directed to remove the name of Denise K. O’Rourke from the appropriate ballot.

The Supreme Court improperly dismissed the petition for lack of personal jurisdiction over Denise K. O’Rourke, as the petitioners’ method of service was reasonably calculated to complete service within the statutory time period (see Matter of Contessa v McCarthy, 40 NY2d 890, 891 [1976]; Matter of Stabile v DeFronzo, 231 AD2d 577 [1996]).

*1009The unrefuted testimony establishes that notary public Paul Nehrich did not administer an oath or affirmation to the witnesses in any manner required by law (see Matter of Helfand v Meisser, 22 NY2d 762 [1968]; Brown v Suffolk County Bd. of Elections, 264 AD2d 489 [1999]; Matter of Merrill v Adler, 253 AD2d 505 [1998]; Matter of Zunno v Fein, 175 AD2d 935 [1991]; Matter of Andolfi v Rohl, 83 AD2d 890 [1981]; CPLR 2309 [b]). Consequently, the designating petition of Denise K. O’Rourke did not contain a sufficient number of valid signatures.

In light of this determination, the petitioners’ remaining contention regarding notary public Mary Noe has been rendered academic. Altman, J.P., Krausman, Goldstein, Cozier and Rivera, JJ., concur.