Gregory v. Board of Elections ( 1983 )

Titone, J. P., and Laser, J., concur in part and dissent in part, with the following memorandum:

At the outset, we agree that Joan Gill’s application to validate her nominating petition was rendered moot by the fact that the board of elections had validated that petition. We vote to dismiss the application to invalidate for lack of jurisdiction. As the majority has indicated, Mrs. Gill did not receive the order to show cause and its accompanying papers until March 17, 1983, three days after the last day to commence this proceeding. The method of service utilized by Mr. Gregory, was not one of the alternatives provided in the order to show cause by which he sought to bring on his invalidation proceeding. Had Mr. Gregory simply deposited a postpaid envelope containing the order in a mail depository on March 11,1983 as provided by the order, it seems rather likely that it would have been received by March 14, 1983, the last day to institute such proceeding. Instead, he elected to use certified mail, return receipt requested, a method not mentioned in the order. This method is a more restrictive type of service than ordinary mail (cf. Matter of King v Cohen, 293 NY 435, 439; Matter of Butler v Gargiulo, 77 AD2d 939), and we do not believe that it was reasonably calculated to give Mrs. Gill timely notice (see, also, Matter of Floyd v Coveney, 83 AD2d 897; Matter of Buhlmann v Le Fever, 83 AD2d 895, affd 54 NY2d 775), which, indeed, it did not. Since the invalidation proceeding against Mrs. Gill was thus untimely instituted, if it was instituted at all, the court was without jurisdiction to entertain it. Mrs. Gill’s participation in the invalidation proceeding is of no help to Mr. Gregory’s cause since subject matter jurisdiction cannot be waived (Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324; Marine Midland Bank v Bowker, 89 AD2d 194,195-196; Zurich Ins. Co. v Evans, 90 Misc 2d 286, 287). We, therefore, find it unnecessary to reach the merits of the case. However, if we were to do so, we would concur with the majority that Mrs. Gill is not a resident of the community school board district in which she is a candidate for office.