Ask any practicing lawyer in New York how to timely commence an action or initiate a proceeding and, invariably, the response will be “by filing a summons or petition, within the statute of limitations period, of course.” Ask whether filing on the very last day of the statute of limitations renders the action untimely, the response would undoubtedly be “no.” That lawyer would be correct on both counts, most of the time.
If you asked whether the summons or petition needed to be served within the limitations period to be commenced timely, the lawyer would likely answer, “no, service is to acquire jurisdiction over the party.” Again, that lawyer would be correct, most of the time.
This article discusses an anomaly in New York law, a judicially created requirement for service, as well as filing, of a petition under Election Law §16-102, within the statutory limitations period for the proceeding to be timely “instituted.” That requirement was recently cemented as law by the Court of Appeals’ denial of leave to appeal in Matter of Andrew DeStefano v. James Borkowski, 29 N.Y.3d 915 (2017).
On July 31, 2017, DeStefano filed a petition under Election Law §16-102 seeking judicial review of the Board of Elections’ disallowance of his designating petition as a candidate in the Republican primary for Putnam County Sheriff. DeStefano’s petition and proposed order to show cause were filed on the last of the three-day limitations period for filing. The Board of Elections responded, contending, inter alia, that the petition was untimely because it was not filed and served within the limitations period.
Supreme Court (Hon. Paul I. Marx, J.S.C.) found the petition was timely because it was filed within the limitations period. The court evaluated and upheld the petition on the merits and ordered DeStefano to be placed on the ballot for the primary election. Matter of DeStefano v. Borkowski, 57 Misc.3d 498 (Sup. Ct. Putnam County 2017), rev’d in part Matter of DeStefano v. Borkowski, 153 A.D.3d 817 (2d Dep’t 2017).
On appeal, the Appellate Division held that the petition was untimely because it had not been served within the limitations period. That court stated that “a petitioner raising a challenge under Election Law §16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law 16-102(2)” (DeStefano, 153 A.D.3d at 805). In so ruling, the Appellate Division relied on, inter alia, Matter of Angletti v. Morreale, 25 N.Y.3d 794 (2015) and Matter of King v. Cohen, 293 N.Y. 435 (1944).
The Court of Appeals denied DeStefano leave to appeal. Consequently, the law in New York is that filing a petition under Election Law §16-102(2) within the limitations period is insufficient to timely commence the proceeding. Service is also required, notwithstanding CPLR §304.
In 1992, after decades in which legal proceedings were commenced by service of legal papers, New York enacted CPLR §304, providing for legal proceedings, including election law proceedings, to be commenced by the filing of legal papers. CPLR §304 provides, in pertinent part:
(a) A special proceeding is commenced by filing a petition …
(c) … filing shall mean the delivery of the … petition to the clerk of the court in the county in which the … special proceeding is brought …
One of the benefits of CPLR §304 is that the party who commences an action can be assured that the action was timely commenced by simply ensuring that the initiating papers were delivered to the appropriate clerk before the statute of limitations expires. This has, in many cases, eliminated any uncertainty of whether an action was timely commenced. However, that certitude has not been extended to Election Law proceedings because courts have added a requirement of service for timely commencement.
Once a proceeding is commenced by filing, the petitioner has the period allotted by CPLR §306-b in which to serve a copy of the pleadings on the respondent. Completion of service confers personal jurisdiction over the responding party. CPLR §306-b specifies that in Election Law proceedings, where the statute of limitations is four months or less, service must be made not later than 15 days after the date on which the statute of limitations expires.
For proceedings under Election Law §16-102, the service requirements are specified by Election Law §16-116 to be “as the court or justice shall direct,” a phrase generally understood to require an Order to Show Cause. Courts have taken an expansive view of that provision. In the process, they have read CPLR §304 out of Election Law §16-102(2) proceedings.
As relevant to this article, Election Law §16-102(2) provides:
A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition, whichever is later; …
Consequently, the period for instituting a proceeding to validate a designating petition is three days after the Board of Elections has invalidated it. Three days to accomplish anything in the law, it must be conceded, is extremely brief. Nevertheless, the appellate divisions and highest court of this state have repeatedly held that a proceeding under Election Law §16-102 is not instituted until both filing and service has occurred. How can that be? After all, the statute does not require service within the limitations period for commencement.
The requirement for both service and filing emanates from the Court of Appeals’ decision in King, decided 48 years before New York adopted commencement by filing through CPLR §304. King involved a petition under Election Law §330, the predecessor to Election Law §16-102, to annul certain designating petitions. The petitioner obtained an order which directed service to be made by midnight the same day. Service was completed by substitute service and follow up mailing. The mailed copy did not arrive prior to the expiration of the limitations period. The Court of Appeals held that service was ineffectual because the requirement for “such notice thereof ‘as the court, justice or judge shall direct’ … calls for delivery of the instrument of notice not later than on the last day on which the proceeding may be commenced.” Id. at 439.
Although King was decided under procedural requirements that have been substantially modified by CPLR §304, the Appellate Divisions and the Court of Appeals continue to apply the rule of law from King and its progeny to modern day election proceedings. Indeed, as noted above, in reversing DeStefano, the Appellate Division relied on King and Angletti.
Angletti, decided in 2015, dispensed with the requirement of actual delivery, which was a holdover from King, but continued to hold that service within the limitations period was required.
What is simultaneously heartening and discouraging about Angletti is the high court’s conclusion that:
there is no sound reason to adopt a rule that would effectively shorten the very brief period of limitations applicable to election cases—ranging from 3 to 14 days (see Election Law §16-102)—where the proceeding has already been timely commenced by filing, respondent already had notice thereof by the nailing method of service, and imminent delivery of the mailing made within the limitations period can be expected.
Angletti, 25 N.Y.3d at 798. (emphasis added.)
It cannot be gainsaid that the Angletti court held that “the proceeding [was] timely commenced by filing.” Yet, the Court of Appeals clung to the service requirement. If the Court of Appeals truly wishes to preserve the “very brief period of limitations applicable to election cases” and protect the substantive rights of petitioners, it must eliminate the requirement for service to be completed within the limitations period. Why continue with an additional requirement that deprives a petitioner of the full limitations period?
The way is already open to courts to prevent shortening the limitations period through the very provision in Election Law §16-116 that notice of the proceeding be provided “as the court or justice shall direct”. Courts routinely deal with orders to show cause and the need for expedited attention to certain matters and are well equipped to provide for service of an election petition within the restricted time frames necessary for resolving election challenges. Determining whether candidates should or should not appear on the ballot is amongst the most time sensitive issues presented to the courts. The Election Law itself mandates that these matters be given priority in determination. Supreme Courts are directed by Administrative Order to decide Election Law matters swiftly to ensure that all appellate rights can be exercised prior to the Board of Elections printing and distributing ballots.
There is simply no need for courts to continue to shoe horn service into the limitations period. More importantly, there is no statutory support in either the Election Law or the CPLR for a judicially fashioned rule that is outdated and whose continued application deprives petitioners of the full limitations period and, at times, their substantive rights. Courts should not use the exigencies of election proceedings to continue applying bad law by relying on King, which has been superseded.
DeStefano provides an excellent example as to why service within the statutory three days should not be a requirement under the current law governing the time to institute or commence a proceeding. DeStefano filed his Petition and Order to Show Cause on the last day permitted by law. Thus, he complied with the statutory requirement to “institute” the proceeding by filing as required by Election Law §16-102. Nonetheless, DeStefano was eventually deprived of the opportunity to appear on the ballot because the courts have, by judicial fiat, predicated on decisional law rendered in 1944, added an extra requirement that has been absent from the statutory mandates since 1992.
Where the legislature has specifically provided in the Election Law that a proceeding be instituted by filing of a petition in order to be timely, the Courts should not add another requirement for service to be completed within that same time period when service is no longer a required component for commencement of a proceeding. If the legislature intended to require filing and service to be made within the three-day time period set forth in Election Law §16-102(2), it could have so provided at any time after CPLR §304 was amended. It has not. Election Law §16-102 was last amended on May 8, 1992, just prior to the amendment of CPLR §304 on June 23, 1992, which had an effective date of July 1, 1992.
The issues presented by Election Law §16-102 proceedings are of paramount importance. It is an ideal that citizens be allowed the opportunity to participate in the electoral process as candidates. Imposing a requirement for filing and service deprives a party of the full limitations period. Further, that requirement creates a trap for the unwary. A petitioner cannot discern from Election Law §16-102 that service of a petition must be made within three days of a Board determination because that requirement is conspicuously absent from the statute.
Apparently, CPLR §304, the commencement by filing statute, applies to special proceedings, but not to extra special election proceedings which are commenced by more than filing. Until the Court of Appeals or Appellate Divisions reject King, the requirement for both filing and service within the limitations period will remain.
Practitioners beware, in a clash of CPLR §304 and Election Law §16-102, case law prevails and the CPLR is vanquished.
Paul I. Marx is a Justice of the Supreme Court, Rockland County. Bridget Gauntlett is Justice Marx’s Principal Law Clerk.