Bruno v. Peyser , 40 N.Y.2d 827 ( 1976 )

Memorandum. Since the order appealed from is in form a reversal, but in fact affirmed the order and judgment of Special Term, leave to appeal is granted by this court sua sponte.

The petitioner, Richard Bruno, instituted this proceeding to contest the election petition of Peter Peyser, a candidate for the Republican nomination for the United States Senate. The respondent did not actually receive the mailed service of process until after the expiration of the 14-day limitation period imposed by subdivision 1 of section 330 of the Election Law. Hence, this proceeding was not timely. (Matter of Burton v Coveney, 32 NY2d 842; Matter of Thompson v Board of Elections, 40 NY2d 814 [decided Sept. 2, 1976].) Matter of Pell v Coveney (37 NY2d 494), relied upon by petitioner, has no application where it is the objector, and not the candidate, who receives notice of an adverse Board of Elections decision after the expiration of the 14-day period. Objectors, unlike candidates, have sufficient knowledge and information regarding the nature of the objections in order to enable them to commence a timely proceeding to invalidate designating petitions without the need to await a determination of the Boárd of Elections. The order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Appeal taken as of right dismissed, without costs.

Leave to appeal granted by the court sua sponte.

Order affirmed, without costs.