IN RE: Brian C. DAVIS

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

IN RE: Brian C. DAVIS, Petitioner-Appellant, v. Bryon J. McINTYRE, Individually and as Candidate for Democratic Party Nomination for Ellicott District Councilman, City of Buffalo, and Ralph M. Mohr and Dennis E. Ward, as Commissioners of and Constituting the Erie County Board of Elections, Respondents-Respondents.

Decided: August 22, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, and PINE, JJ. The Knoer Group, PLLC, Buffalo (Richard E. Stanton Of Counsel), for Petitioner-Appellant. James Ostrowski, Buffalo, for Respondent-Respondent Bryon J. McIntyre, Individually and as Candidate for Democratic Party Nomination for Ellicott District Councilman, City of Buffalo.

Petitioner appeals from an order dismissing his petition seeking, inter alia, to invalidate respondent Bryon J. McIntyre's designating petition for Democratic party nomination for the primary election for Ellicott District Councilman in the City of Buffalo.   Contrary to petitioner's contention, Supreme Court properly dismissed the petition on the ground that it was not timely served.   Pursuant to Election Law § 16-102(2), petitioner was required to commence this proceeding “within fourteen days after the last day to file the [designating] petition.”   It is undisputed that the last day on which to file the designating petition was July 19, 2007, and thus the statutory limitations period expired on August 2, 2007.   The petition was timely filed with the Erie County Clerk on August 2, 2007, but it was not served until August 3, 2007.  Election Law § 16-116 provides that respondents are entitled to notice of the proceeding and “[t]hat requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced” (Matter of Ehle v. Wallace, 195 A.D.2d 1086, 1086, 602 N.Y.S.2d 563, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303;  see Matter of King v. Cohen, 293 N.Y. 435, 439, 57 N.E.2d 748;  Matter of Riley v. Democratic Party of Owasco, 21 A.D.3d 708, 709-710, 800 N.Y.S.2d 258, lv. denied 5 N.Y.3d 707, 801 N.Y.S.2d 800, 835 N.E.2d 660).   We note that the fact that the order to show cause annexed to the petition provided that the last day on which to effect service was August 3, 2007 is of no moment.  “[T]hat provision could not and did not extend the period of limitations within which to institute the proceeding within the meaning of the Election Law” (Matter of Marino v. Orange County Bd. of Elections, 307 A.D.2d 1011, 1012, 763 N.Y.S.2d 505, lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 162, 798 N.E.2d 346).

In view of our decision, we do not reach petitioner's remaining contentions.

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

MEMORANDUM: