Opinion
October 24, 1995
Appeal from the Supreme Court, Ulster County (Torraca, J.).
By orders to show cause dated September 28, 1995 and October 3, 1995, petitioner commenced this proceeding pursuant to Election Law § 16-104, CPLR article 78 and for a declaratory judgment to remove the name of respondent Michael T. Hoeger from the ballot, ostensibly on the ground that his designation as the Democratic Party candidate for the position of Ulster County Legislator by respondent Committee to Fill Vacancies filed with respondent Ulster County Board of Elections (hereinafter the Board of Elections) on July 20, 1995 was void. The basis for that allegation was that Joseph Frangione, the originally designated candidate who was not a member of the Democratic Party, had not filed a certificate of acceptance and, further, that a letter of declination which was signed by Frangione and filed with the Board of Elections on July 17, 1995 was not in proper form. Petitioner, one of the two Commissioners of the Board of Elections, despite his official participation in informing the Committee to Fill Vacancies by letter dated July 17, 1995 of the filing of Frangione's declination, contends that the lack of an acknowledgment rendered Frangione's designation void pursuant to Election Law § 6-146 and that this fact was kept from him by the fraudulent conduct of a Deputy Election Commissioner; as a result, petitioner argues, the subsequent designation of Hoeger was a nullity. Following a hearing at which petitioner failed to offer any proof regarding the alleged fraud, Supreme Court granted the petition without addressing respondents' timeliness defense. Respondent Ulster County Democratic Committee and the Committee to Fill Vacancies appeal.
We reverse. Petitioner was aware of the facts forming the basis for the alleged fraud as of July 28, 1995 upon his receipt of Frangione's letter dated July 27, 1995. This proceeding is subject to the 14-day period of limitations established by Election Law § 16-102 (2) ( see, Matter of Scaringe v. Ackerman, 119 A.D.2d 327, affd on opn below 68 N.Y.2d 885; see also, Matter of Stampf v. Hill, 218 A.D.2d 919; Matter of Ferguson v Cheeseman, 138 A.D.2d 852; Matter of Garrow v. Mitchell, 112 A.D.2d 1104, lv denied 65 N.Y.2d 607) and, as such, is clearly untimely. Moreover, petitioner failed to establish the alleged fraud which he claims kept him from timely discovering the defects in Frangione's declination.
Cardona, P.J., Mikoll, Mercure, Casey and Spain, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and petition dismissed.