Raphael v. Montgomery County Board of Elections

— Per Curiam. Appeal from an order of the Supreme Court (White, J.), entered August 19, 1991 in Montgomery County, which dismissed petitioners’ application, in a proceeding pursuant to Election Law § 16-102, to declare valid two opportunity to ballot petitions for the positions of Members of the Montgomery County Democratic Committee in the September 12, 1991 primary election. By order to show cause dated August 12, 1991, petitioners commenced the instant proceeding challenging the invalidation by respondent Montgomery County Board of Elections of two opportunity to ballot petitions for the position of Members of the County Democratic Committee in the September 12, 1991 primary election. Thereafter, respondents moved to dismiss the application on the grounds of lack of standing and lack of personal jurisdiction. Supreme Court granted respondents’ motion without addressing the jurisdictional issue, concluding that petitioners had no standing under Election Law § 16-102 to bring the proceeding. This appeal ensued. Pursuant to the order to show cause, petitioners were required to serve respondents either personally or by substituted service to be accomplished by affixing the papers to the front doors of their residences. In an affidavit submitted in [966] support of respondents’ motion to dismiss, respondent Eleanor Olechowski, a person designated in the order to show cause to be served, averred that she was not served in accordance with the order to show cause. This affidavit was in no way rebutted in petitioners’ opposing papers. Therefore, Supreme Court was without jurisdiction to entertain this proceeding and its order dismissing petitioners’ application should be affirmed (see, Matter of Sahler v Callahan, 92 AD2d 976, 977). Moreover, we agree with the conclusion reached by Supreme Court on the issue of standing.. Petitioners are not within the group of people authorized under Election Law § 16-102 to bring this proceeding (see, Matter of Twombly v Hall, 71 AD2d 939). Yesawich Jr., J. P., Levine, Mercure, Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.