ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

September 01, 2015

Proper and timely service of an action critical to going forward with the lawsuit


Proper and timely service of an action critical to going forward with the lawsuit
Angletti v Morreale, 2015 NY Slip Op 06647, Court of Appeals

Marcus Morreale initially declined to be designated as a candidate for the County Legislature, Niagara County, thereby creating a vacancy. Subsequently Morreale consented to be designated as the substitute candidate to fill the vacancy created by his own declination of the earlier designation and the Committee to Fill Vacancies filed a certificate of substitution, purporting to designate Morreale as the candidate for the office.

Frances J. Angletti filed a formal objection to Morreale’s nomination with the County Boardof Elections but his objection was rejected by the Board.

The Court of Appeal’s decision notes that Angletti next commenced a proceeding in Supreme Court seeking to invalidate the Morreale “designating petition” and to enjoin the Board from placing Morreale's name on the ballot. Supreme Court signed an order to show cause dated the same day, July 22, 2015, authorizing service on Morreale by one of ten methods permitted.

Angletti utilized "nail and mail" service under the order to show cause, was required to affix the papers to the door of Morreale's residence "AND [enclose] the same in a securely sealed and duly prepaid wrapper addressed to [Morreale] at the address set forth in his . . . designating petition, and depositing the same with a depository of the United States Postal Service via Express Mail on or before the 23rd day of July, 2015."

Morreale answer to Angletti’s action raising several affirmative defenses, including the representation that Angletti’s action was not timely commenced.**

Supreme Court granted Angletti’s petition and ordered the Board to strike Morreale's name from the ballot. The Appellate Division affirmed, concluding that the proceeding had been timely commenced. However, the Court of Appeals, for reasons explained in its decision, elected to address with specificity only the issue upon which the dissent in the Appellate Division was grounded,*** inasmuch as it held that Morreale's other arguments were “without merit.”

The court explained that under Election Law §16-116, a petitioner is required to provide notice "as the court or justice shall direct," and "this requirement calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced."

Agreeing with the courts below that this proceeding was properly commenced in a timely manner, the Court of Appeals said that here “there is no dispute that [Angletti] complied with the terms of the order to show cause by nailing the papers to the door of Morreale's residence on July 22, 2015 and mailing the papers to that residence by express mail on July 23.”

Although Morreale argued that mailing on the last day of the statutory period was jurisdictionally defective since delivery inevitably would occur outside of the statutory period, the court disagreed, noting that “where the instrument of notice has been delivered by another prescribed method within the statutory period,” it has rejected such contentions concerning mailing, citing Serri v Heffernan , 298 NY 629.

As to “nailing” the papers, the Court of Appeals said that a decision that Morreale cited involving “nail and mail,” the papers [1] “were nailed to the outside wall of the residence instead of the door” and [2] the attempted service by mail on the final day "was inadequate and ineffectual to institute the proceeding."

In contrast, the Court of Appeals found that in Angletti’s situation, the instrument of notice had been properly nailed to Morreale’s door and delivered prior to the deadline.

Thus, said the court, the order of the Appellate Division should be affirmed.

* Nail and mail service requires the posting of the action on the door of the person's home and mailing a copy of the papers to the appropriate mailing address.

** July 23, 2015 was the last day to commence the proceeding under the 14-day period authorized by Election Law (see Election Law §16-102 [2]).

*** Two Appellate Division Justices dissented and would have reversed on the basis that the mailing had to have been made at an earlier time when receipt could reasonably be expected to occur within the statutory period.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com