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

Matter of Annemarie SANTORO, Peter J. Burkhardt, David Gulisano, James E. McKeegan, Joseph F. Parlet, Timothy M. Riley, Martin A. Mroczek, Eric A. Sniders and Ronald W. Nesbitt, Petitioners-Respondents, v. Betty SCHREIBER, Pauline Ashley, Floyd R. Musclow, David Galeazzo, Charles Duffy, Michael W. Robinson, John Langdon, Bruce Smith, Richard Verstraete, Julie A. Bleier, Robert Meyer and Joanne Hutton, Respondents-Appellants.  (Appeal No. 2.)

Decided: July 09, 1999

PRESENT:  PINE, J.P., LAWTON, PIGOTT, JR., HURLBUTT and SCUDDER, JJ. Philip S. Glickman, Rochester, for respondents-appellants. Joseph D. Picciotti, III, Rochester, for petitioners-respondents.

Ronald W. Nesbitt (petitioner), a member of the Town Board of the Town of Webster (Town) and the Water Commissioner for the Town, filed written objections and commenced this special proceeding pursuant to Town Law § 91, seeking to invalidate 23 petitions for permissive referenda signed and filed by property owners in various Town water districts.   The referendum petitions sought to submit to the electors of the districts for approval or disapproval the resolutions of the Town Board implementing and funding a change in the water supplier for the various water districts from the Village of Webster to the Monroe County Water Authority.

 Respondents waived any objection to petitioner's standing because they did not raise the defense of lack of standing either in a preanswer motion or in their responsive pleadings (see, CPLR 3211[a][3];  [e];  Matter of Prudco Realty Corp. v. Palermo, 60 N.Y.2d 656, 657, 467 N.Y.S.2d 830, 455 N.E.2d 483;  Gilman v. Abagnale, 235 A.D.2d 989, 990, 653 N.Y.S.2d 176).

 Supreme Court erred in, sua sponte, adding eight petitioners as parties to the proceeding.   Their petitions were not accompanied by orders to show cause in accordance with Election Law § 16-116 and thus the court had no jurisdiction with respect to those petitions.   Moreover, a special proceeding is commenced by filing a notice of petition or order to show cause and petition (see, CPLR 304), and, absent such filing, service of the petitions is a nullity (see, Matter of Millar v. Tolly, 252 A.D.2d 872, 675 N.Y.S.2d 440).   We modify the orders in appeal Nos. 1 and 2, therefore, by deleting those eight petitioners from the caption of the proceeding, and we further modify the order in appeal No. 1 by vacating the last ordering paragraph.

 The court also erred in invalidating the referendum petitions, after reargument, upon two grounds not raised by petitioner in his objections filed with the Town Clerk or in his petitions filed in Supreme Court (see, Matter of Vogel v. Blackwell, 225 A.D.2d 1091, 639 N.Y.S.2d 190;  Matter of Thomas v. Blackwell, 219 A.D.2d 795, 632 N.Y.S.2d 989).  Fundamental fairness requires that prior notice be given of the basis for the challenge to referendum petitions (see, Matter of Suarez v. Sadowski, 48 N.Y.2d 620, 421 N.Y.S.2d 50, 396 N.E.2d 198;  Matter of Levitt v. Mahoney [appeal No. 2], 133 A.D.2d 516, 520 N.Y.S.2d 290;  Matter of Belak v. Rossi, 96 A.D.2d 1011, 467 N.Y.S.2d 100, lv. denied 60 N.Y.2d 552, 467 N.Y.S.2d 1026, 454 N.E.2d 540).   Reargument is not a vehicle for parties to raise new questions or “advance arguments different from those tendered on the original application” (Foley v. Roche, 68 A.D.2d 558, 568, 418 N.Y.S.2d 588).   However, with a single exception, the court properly invalidated the referendum petitions on the additional ground that they had insufficient numbers of signatures, because they were filed separately and were not fastened together in accordance with Town Law § 91 (see, Matter of Stemmer v. Ehlers, 129 A.D.2d 1010, 514 N.Y.S.2d 276).   The pleadings and supporting papers filed with the order to show cause provided respondents with sufficient notice of that ground, i.e., that the separate petitions could not be combined for the purpose of calculating signatures.   Sufficient valid signatures were gathered on the single petition for the Maple Drive Water District, and thus we further modify the order in appeal No. 2 by vacating the determination that the Maple Drive Water District petition for a permissive referendum on Resolution No. 87/988798 is invalid and dismissing the petition seeking to invalidate the Maple Drive referendum petition.

Order unanimously modified on the law and as modified affirmed without costs.


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