Matter of Kapsis v Kelleher
2007 NY Slip Op 00984 [37 AD3d 381]
February 5, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 11, 2007

In the Matter of James L. Kapsis et al., Appellants,
Neil W. Kelleher et al., Respondents, and State Committee of the New York State Independence Party et al., Respondents.


In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate certificates of nomination and authorization designating Maureen O'Connell as the candidate of the Independence Party for the public office of State Senator for the 7th Senatorial District, in a special election to be held on February 6, 2007, the petitioners appeal from a final order of the Supreme Court, Nassau County (Brandveen, J.), dated January 29, 2007, which granted the motion of, among others, the State Committee of the New York State Independence Party and the Nassau County Committee of the New York State Independence Party to dismiss the petition, and dismissed the proceeding.

Ordered that the final order is affirmed, without costs or disbursements.

The order to show cause, which was drafted by the petitioners' attorney, and was returnable at 9:30 a.m. on January 26, 2007, in effect, required the petitioners to ensure that the order to show cause and supporting papers were received by the respondents (other than the Board of Elections) "at or before 11:59 p.m." on January 25, 2007. Several of the respondents did not receive the papers by the prescribed time. Therefore, the petitioners failed to comply with the order to show cause (see Matter of McGreevy v Simon, 220 AD2d 713 [1995]; Matter of Bell v State Univ. of N.Y. at Stony Brook, 185 AD2d 925 [1992]).

In light of our determination, we need not reach the petitioners' remaining contentions. Crane, J.P., Krausman, Fisher and Dickerson, JJ., concur.