SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
835
CAE 14-01441
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND VALENTINO, JJ.
IN THE MATTER OF ERIN J. O’BRIEN,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
FRANCIS J. PORDUM, TIMOTHY J. PAWARSKI,
MARY I. JULIAN, MARY ALICE GRANT,
RICHARD F. ROSE, RICHARD E. DOBSON,
REBECCA L. PORDUM AND NEW YORK STATE BOARD OF
ELECTIONS, RESPONDENTS-RESPONDENTS.
SLIWA & LANE, BUFFALO (PAUL F. MURAK OF COUNSEL), FOR
PETITIONER-APPELLANT.
THOMAS E. WEBB, JR., WILLIAMSVILLE (JAMES OSTROWSKI OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS FRANCIS J. PORDUM, TIMOTHY J. PAWARSKI, MARY
I. JULIAN, MARY ALICE GRANT, RICHARD F. ROSE, RICHARD E. DOBSON, AND
REBECCA L. PORDUM.
NEW YORK STATE BOARD OF ELECTIONS, ALBANY (KATHLEEN O’KEEFE OF
COUNSEL), RESPONDENT-RESPONDENT PRO SE.
Appeal from an order of the Supreme Court, Erie County (Matthew
J. Murphy, III, A.J.), entered August 14, 2014 in a proceeding
pursuant to Election Law article 16. The order, insofar as appealed
from, dismissed the petition as jurisdictionally defective on the
ground that petitioner failed to serve the Attorney General.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the petition is
reinstated and the matter is remitted to Supreme Court, Erie County,
for further proceedings in accordance with the following Memorandum:
Petitioner commenced this proceeding by order to show cause and
petition pursuant to Election Law article 16 seeking to invalidate the
joint designating petition of Francis J. Pordum, Timothy J. Pawarski,
Mary I. Julian, Mary Alice Grant, Richard F. Rose, Richard E. Dobson,
and Rebecca L. Pordum (candidate respondents). The first six of those
candidate respondents sought to be designated judicial delegates of
the 147th Assembly District in the September 9, 2014 Democratic Party
primary election, and the final candidate respondent sought to be
designated an alternate delegate thereof. We agree with petitioner
that Supreme Court erred in dismissing the petition as
jurisdictionally defective on the ground that she failed to serve the
Attorney General with the order to show cause as required by CPLR 2214
-2- 835
CAE 14-01441
(d), and we therefore reverse the order insofar as appealed from,
reinstate the petition, and remit the matter to Supreme Court for
entry of an order determining the merits.
CPLR 2214 (d) provides, in relevant part, that “[a]n order to
show cause against a state body or officers must be served in addition
to service upon the defendant or respondent state body or officers
upon the attorney general by delivery to an assistant attorney general
at an office of the attorney general in the county in which venue of
the action is designated or if there is no office of the attorney
general in such county, at the office of the attorney general nearest
such county.” In our view, however, the record on appeal establishes
that the “respondent state body” in this case—respondent New York
State Board of Elections—was represented by its own counsel, and we
therefore conclude that petitioner’s failure to serve the Attorney
General was at most a technical defect that may be disregarded (see
CPLR 2001; see also Duffy v Schenck, 73 Misc 2d 72, 73, affd 42 AD2d
774; see generally Patrick M. Connors, Practice Commentaries,
McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:30, at 151-152; cf.
Matter of Castracan v Colavita, 173 AD2d 924, 926 n 3, appeal
dismissed 78 NY2d 1041)
We reject the contention of respondent candidates that the appeal
should be dismissed for petitioner’s failure to include the hearing
transcript in the record on appeal inasmuch as we conclude that the
record on appeal is adequate for us to decide the above jurisdictional
issue. Finally, we have examined the additional contentions raised by
the candidate respondents and conclude that they are without merit.
Entered: August 20, 2014 Frances E. Cafarell
Clerk of the Court