IN RE: James P. KEANE

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

IN RE: James P. KEANE, Aggrieved Candidate, Kurt J. Heffle, Objector, Ford Beckwith, Objector, and Louis P. Corrigan, Objector, Petitioners-Respondents, v. Paul T. CLARK, Candidate, and Dennis E. Ward and Ralph M. Mohr, as Commissioners of and Constituting the Erie County Board of Elections, Respondents-Appellants.

Decided: August 22, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Harris Beach PLLC, Buffalo (Richard T. Sullivan of Counsel), for Respondent-Appellant Paul T. Clark, Candidate. Laurence K. Rubin, County Attorney, Buffalo (James L. Tuppen of Counsel), for Respondents-Appellants Dennis E. Ward and Ralph M. Mohr, as Commissioners of and Constituting the Erie County Board of Elections. Gary J. Wojtan, P.C., Cheektowaga (Gary J. Wojtan of Counsel), and Joseph A. Ables, Jr., for Petitioner-Respondent James P. Keane, Aggrieved Candidate. Lovallo & Williams, Buffalo (Joseph A. Ables, Jr., of Counsel), for Petitioners-Respondents Kurt J. Heffle, Objector, Ford Beckwith, Objector, and Louis P. Corrigan, Objector.

Petitioners commenced this proceeding seeking, inter alia, to invalidate the designating petition of respondent Paul T. Clark as the Independence Party Candidate for the office of Erie County Executive (see Election Law § 6-120 [3] ).   Supreme Court denied respondents' motion seeking dismissal of the petition on the ground that it was not timely served on all of the parties.   That was error. Election Law § 16-102(2) requires that a proceeding with respect to a designating petition, of which a certificate of authorization is an integral part, “shall be instituted within fourteen days after the last day to file the petition” (see Matter of Stampf v. Hill, 218 A.D.2d 919, 630 N.Y.S.2d 813;  see also Matter of Naples v. Swiatek, 286 A.D.2d 567, 730 N.Y.S.2d 589, lv. denied 96 N.Y.2d 718, 732 N.Y.S.2d 630, 758 N.E.2d 656).   Here, although petitioners timely filed the petition, they failed to serve all of the parties with the petition within the requisite 14-day period, and the court therefore should have dismissed the petition as time-barred (see 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;  Matter of Ehle v. Wallace, 195 A.D.2d 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).   Contrary to the contention of petitioner James P. Keane and the conclusion of the court, the 14-day period began to run on July 19, 2007, the last date on which to file the designating petition, rather than the date on which the last certificate of authorization and certificate of acceptance were filed (see Naples, 286 A.D.2d 567, 730 N.Y.S.2d 589;  Stampf, 218 A.D.2d 919, 630 N.Y.S.2d 813).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed.

MEMORANDUM: