Rodriguez v. Ward

Aug 22, 2007
Versions:43 A.D.3d 640
842 N.Y.S.2d 622

Appeal from an order of the Supreme Court, Erie County (Janice M. Rosa, J., for Diane Y. Devlin, J.), entered August 17, 2007 in a proceeding pursuant to Election Law article 16. The order dismissed the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking to validate her designating petition for the office of City Court Judge for the City of Buffalo in the Democratic primary election to be held on September 18, 2007. Supreme Court properly dismissed the petition. Petitioner failed to provide the requisite proof that service was effectuated in accordance with the terms of the order to show cause (see generally Matter of Gershel v Porr, 89 NY2d 327, 331 [1996]), and the court therefore lacked personal jurisdiction over respondents (see Matter of Phillips v Sanfilippo, 306 AD2d 954, 955 [2003], lv denied 100 NY2d 507 [2003]). In any event, the petition also was properly dismissed on the ground that it failed to “specify the individual determinations of [the Erie County] [B]oard of [E]lections that [petitioner] claims were erroneous, including the signatures that [she] claims were improperly invalidated” ( Matter of Jennings v Board of Elections of City of N.Y., 32 AD3d 486, 486 [2006], lv denied 7 NY3d 707 [2006]).

Even assuming, arguendo, that service was properly effectuated and that the petition sufficiently set forth the allegedly erroneous determinations of the Erie County Board of Elections, we nevertheless are unable to determine the merits of petitioner‘s contentions inasmuch as the record on appeal is incomplete. Petitioner, “as the appellant, . . . must suffer the consequences” of submitting an incomplete record (Matter of Santoshia L., 202 AD2d 1027, 1028 [1994]). Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Pine, JJ.