Mackey v. Nassau County Democratic Committee , 538 N.Y.S.2d 998 ( 1989 )

— In a proceeding pursuant to Election Law article 16 to invalidate a certificate of nomination of the Democratic Party which nominated Fannie Davis as a candidate for the office of Mayor and William Dupree and William Kelly as candidates for the office of Trustee in the Village of Hempstead general election to be held on March 21, 1989, the appeal is from an order and judgment (one paper) of the Supreme Court, Nassau County (McGinity, J.), dated February 19,1989, which, in effect, invalidated the certificate of nomination, directed that a new caucus be held on March 3, 1989, and specified how notice of the new caucus was to be given.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, and the proceeding is dismissed.

Since the order to show cause by which the petitioners sought to institute this proceeding was not served upon the appellants within 10 days of the filing of the certificate of nominations made at the caucus (see, Election Law § 16-102 [2]), the proceeding was not timely commenced. The petitioners’ failure to commence this proceeding in a timely manner is a jurisdictional defect precluding judicial review of the certificate of nominations (Visconti v Paino, 137 Misc 2d 1, affd 133 AD2d 875 on opn at Sup Ct). Mangano, J. P., Bracken, Brown and Harwood, JJ., concur.