Hawkins v. Szczesniak

Appeal from an order of Supreme Court, Onondaga County (Centra, J.), entered October 7, 2003, which dismissed the petition for lack of personal jurisdiction. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner appeals from an order dismissing his petition in this Election Law proceeding for lack of personal jurisdiction, based on improper service of the order to show cause and petition. Petitioner commenced this proceeding seeking to set aside the determination of respondent Onondaga County Board of Elections invalidating his independent nominating petition as a candidate for Councilor-at-Large on the City of Syracuse Common Council. Petitioner himself personally served the order to show cause and petition upon respondents. On appeal, petitioner contends that personal service by a party to the action is a mere irregularity that does not deprive Supreme Court of personal jurisdiction over respondents. We disagree, and conclude that the court properly dismissed the petition as jurisdictionally defective (see CPLR 2103 [a]; Matter of Wein v Thomas, 78 AD2d 611 [1980], affd 51 NY2d 862 [1980]; Miller v Bank of New York, 226 AD2d 507 [1996]; Kedzielawa v Smolinski, 133 AD2d 517 [1987], lv denied 70 NY2d 604 [1987]). Present — Pigott, Jr., P.J., Pine, Hurlbutt, Kehoe and Hayes, JJ.