Montes-Amaya v. Suffolk County Board of Elections

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition nominating Waldo Cabrera as the candidate of the Integrity Party for the public office of Member of the Assembly, 6th Assembly District, in a general election to be held on November 7, 2006, Waldo Cabrera appeals from a final order of the Supreme Court, Suffolk County (Spinner, J.), dated October 11, 2006, which, after a hearing, granted the petition and invalidated the nominating petition. Ordered that the final order is affirmed, without costs or disbursements. Service of process was properly effected pursuant to CPLR [947] 308 (1) (see Bossuk v Steinberg, 58 NY2d 916, 918 [1983]; Matter of Cannuscio v Garfinkle, 307 AD2d 1003 [2003]). The Supreme Court correctly determined that the third volume of the appellant’s nominating petition was not “filed” within the meaning of Election Law § 1-106 until it was marked by the United States Post Office (hereinafter the Post Office) as received, on August 23, 2006 (see Matter of Hogan v Goodspeed, 196 AD2d 675 [1993]; Matter of George v Van Keuren, 185 Misc 671 [1945]; see also Matter of Bush v Salerno, 51 NY2d 95 [1980]). The Post Office’s notation that it received the mailing on August 23, 2006 was verifiable evidence of the date on which the third volume of the nominating petition was mailed (see Estate of Wood v C.I.R., 909 F2d 1155, 1161 [1990]). Because the last day to timely file nominating petitions was August 22, 2006, the filing of the third volume of the nominating petition was untimely and the signatures thereon were properly invalidated (see Election Law § 1-106). Florio, J.P, Krausman, Rivera and Fisher, JJ., concur.