IN RE: Vince V. ANELLO

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

IN RE: Vince V. ANELLO, Petitioner-Appellant, v. NIAGARA COUNTY BOARD OF ELECTIONS and Michael W. Rimmen, Respondents-Respondents.

Decided: August 22, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND PINE, JJ. Roscetti & DeCastro, P.C., Niagara Falls (Douglas A. Janese, Jr., of Counsel), for Petitioner-Appellant. Claude A. Joerg, County Attorney, Lockport, for Respondent-Respondent Niagara County Board of Elections. Matthew P. Pynn, P.C., Lockport (Matthew P. Pynn of Counsel), for Respondent-Respondent Michael W. Rimmen.

 Petitioner appeals from an order denying his petition seeking to validate his designating petition for the office of Mayor of the City of Niagara Falls and directing respondent Niagara County Board of Elections (Board of Elections) to place his name on the ballot for the Democratic primary election on September 18, 2007.   We affirm.   Petitioner contends that the three-day period within which respondent Michael W. Rimmen was permitted to file general objections to petitioner's designating petition pursuant to Election Law § 6-154(2) began to run from the date on which the designating petition was postmarked inasmuch as the designating petition was deemed filed on that date pursuant to Election Law § 6-154(2).   We reject that contention.   Rather, the three-day period within which to file general objections to a designating petition commences when the designating petition is received and accepted for filing by the Board of Elections, not when such petition is postmarked (see Matter of Miele v. Reda, 243 A.D.2d 566, 663 N.Y.S.2d 221, lv. denied 90 N.Y.2d 811, 666 N.Y.S.2d 99, 688 N.E.2d 1381;  Matter of Benson v. Scaringe, 84 A.D.2d 603, 604, 444 N.Y.S.2d 224, lv. denied 54 N.Y.2d 609, 445 N.Y.S.2d 1027, 429 N.E.2d 835;  see also Matter of Bartolomeo v. Acito, 65 A.D.2d 660, 409 N.Y.S.2d 462, lv. denied 45 N.Y.2d 712, 411 N.Y.S.2d 1025, 383 N.E.2d 563).   Contrary to petitioner's further contention, the fact that Election Law § 1-106(1) states that “[a]ll papers sent by mail in an envelope postmarked prior to midnight of the last day of filing shall be deemed timely filed and accepted for filing when received” does not require a contrary result.

 Here, it is undisputed that petitioner's designating petition was received and accepted for filing by the Board of Elections on July 23, 2007 and that Rimmen filed his general objections to the designating petition on July 25, 2007.   Rimmen's general objections to the designating petition, filed within the requisite three days after the Board of Elections received the designating petition and accepted it for filing, therefore were timely (see Miele, 243 A.D.2d 566, 663 N.Y.S.2d 221;  Benson, 84 A.D.2d at 604, 444 N.Y.S.2d 224;  Bartolomeo, 65 A.D.2d 660, 409 N.Y.S.2d 462).   Petitioner's reliance on Matter of Bush v. Salerno, 51 N.Y.2d 95, 432 N.Y.S.2d 679, 412 N.E.2d 366 is misplaced because, in that case, the issue before the Court concerned the six-day period within which specifications to general objections must be filed.

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

MEMORANDUM: