HAWKINS v. SZCZESNIAK (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Howie HAWKINS, Petitioner-Appellant, v. Edward J. SZCZESNIAK and Helen M. Kiggins, Commissioners, Constituting Onondaga County Board of Elections, and Dustin M. Czarny, Respondents-Respondents.

Decided: October 20, 2003

PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, KEHOE, AND HAYES, JJ.

Mark David Blum, Manlius, for Petitioner-Appellant. Anthony P. Rivizzigno, County Attorney, Syracuse (Joanna Gozzi of Counsel), for Respondents-Respondents Edward J. Szczesniak and Helen M. Kiggins, Commissioners, Constituting Onondaga County Board of Elections. Green & Seifter, Attorneys, PLLC, Syracuse (Dafni S. Kiritsis of Counsel), for Respondent-Respondent Dustin M. Czarny.

Petitioner appeals from an order dismissing his petition in this Election Law proceeding for lack of personal jurisdiction, based on improper service of the order to show cause and petition. Petitioner commenced this proceeding seeking to set aside the determination of respondent Onondaga County Board of Elections invalidating his independent nominating petition as a candidate for Councilor-at-Large on the City of Syracuse Common Council. Petitioner himself personally served the order to show cause and petition upon respondents. On appeal, petitioner contends that personal service by a party to the action is a mere irregularity that does not deprive Supreme Court of personal jurisdiction over respondents. We disagree, and conclude that the court properly dismissed the petition as jurisdictionally defective (see CPLR 2103[a]; Matter of Wein v. Thomas, 78 A.D.2d 611, 434 N.Y.S.2d 642, affd. 51 N.Y.2d 862, 433 N.Y.S.2d 1019, 414 N.E.2d 399; Miller v. Bank of New York, 226 A.D.2d 507, 650 N.Y.S.2d 737; Kedzielawa v. Smolinski, 133 A.D.2d 517, 520 N.Y.S.2d 87, lv. denied 70 N.Y.2d 604, 519 N.Y.S.2d 1026, 513 N.E.2d 713).

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

MEMORANDUM:

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