Bruno v. Rettaliata , 506 N.Y.S.2d 124 ( 1986 )

— Per Curiam.

Appeal from a judgment of the Supreme Court at Special Term (Conway, J.), entered August 8, 1986 in Albany County, which dismissed petitioners’ application, in a proceeding pursuant to Election Law § 16-102, to, inter alia, compel respondent’s acceptance of a certificate of declination for the nomination to the office of State Senator from the 38th Senate District for the Right to Life Party in the September 9, 1986 primary election.

A designating petition was timely filed with the State Board of Elections designating petitioner William A. Martin, Jr., as the Right to Life Party Candidate for the public office of State Senator from the 38th Senate District. The Board sent Martin notice of the deadline for filing a declination for such nomination on July 15, 1986, one day after the deadline date of July 14, 1986. On July 26, 1986 Martin executed a certificate of declination for such nomination which was duly filed by petitioner Richard Bruno with the Board on July 28, 1986.

On July 28, 1986, Bruno, by way of an order to show cause instituted this proceeding against respondents, pursuant to Election Law § 16-102, seeking a declaration that the aforementioned declination was valid and proper and requiring respondents to permit the Committee on Vacancies to fill the vacancy created by such declination. Special Term dismissed the proceeding on the ground it was not instituted within the required statutory period. This appeal by Bruno ensued.

In our view, Special Term properly dismissed the proceeding as untimely (Election Law § 16-102 [2]; see also, Matter of Baird v Ness, 109 AD2d 975, 976). Were we to reach the merits of the proceeding, the same result would obtain, Martin’s failure to file his certificate of declination within the time period prescribed by Election Law § 6-158 (2) requires its rejection (Election Law § 1-106 [2]; Matter of Baker v Monahan, 42 NY2d 1074, 1075).

Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.