Straniere v. Molinaro

—In a proceeding pursuant to Election Law article 16 to compel the Board of Elections of the City of New York to use voting machines instead of paper ballots in the primary elections to be held on September 11, 2001, for the nomination of candidates of the Independence Party for the public offices of Staten Island Borough President and Member of the City Council, City of New York, for the 32nd Council District, the appeal is from a final order of the Supreme Court, Richmond County (Lebowitz, J.), dated September 7, 2001, which granted the petition. Ordered that the final order is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits. The Supreme Court signed an order to show cause and provided the mode by which and the time within which service had to be made to commence the proceeding. Before the expiration of that time period and before all named parties had been served in accordance with the directions in the order to show cause, the Supreme Court proceeded to consider and determine the merits. This was error. We note that there would have been sufficient time for the court to determine the proceeding on the merits following the service date specified in the order to show cause. As the time for service has now expired and all necessary parties have not been served, the proceeding must be dismissed (see, Matter of Gadsen v Board of Elections, 57 NY2d 751; Matter of Fusco v Westchester County Bd. of Elections, 286 AD2d 456; Matter of Giorgi v Monroe County Bd. of Elections, 198 AD2d 886). In light of our determination, we need not reach the parties’ remaining contentions. O’Brien, J. P., Luciano, Smith and Crane, JJ., concur.