Bohrer v. Barci , 730 N.Y.S.2d 249 ( 2001 )

In a proceeding pursuant to Election Law § 16-102, inter alia, to validate a petition designating Roger H. Bohrer as a candidate in a primary election to be held on September 11, 2001, for the nomination of the Conservative Party as its candidate for the public office of District Court Judge, 3rd District, Town of Huntington, the appeal is from an order of the Supreme Court, Suffolk County (Burke, J.), dated August 20, 2001, which denied the motion of the respondent Ellen B. Pagano to dismiss the proceeding for failure to comply with the filing requirements of CPLR 304.

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

The Supreme Court erred in determining that the respondent Ellen B. Pagano failed to timely raise her claim that the petitioner did not comply with the filing requirements set forth in CPLR 304 (cf., Matter of Fry v Village of Tarrytown, 89 NY2d 714). The motion to dismiss was timely and should have been granted. The petitioner failed to file his order to show cause and petition within the statutorily mandated five-day period (see, CPLR 304).

The appellant’s remaining contentions need not be addressed in light of our determination. Ritter, J. P., S. Miller, H. Miller, Smith and Townes, JJ., concur.