In the Matter of Martin J. Kerins, Respondent, v. Randall Hinrichs, Appellant, and Suffolk County Board of Elections, Respondent

In the Matter of Martin J. Kerins, Respondent, v Randall Hinrichs, Appellant, and Suffolk County Board of Elections, Respondent. [730 NYS2d 442] [MAJORITY] In a proceeding pursuant to Election Law § 16-102 to invalidate a petition designating Randall Hinrichs as a candidate in a primary election to be held on September 11, 2001, for the nomination of the Independence Party as its candidate for the public office of Judge of the County Court, Suffolk County, the appeal is from an order and final order ,(one paper) of the Supreme Court, Suffolk County (Tolbert, J.), dated August 9, 2001, which denied the appellant’s motion to dismiss the proceeding on the ground that the petitioner failed to timely commence the proceeding, and granted the petition. Ordered that the order and final order is reversed, on the law, without costs or disbursements, the motion is granted, the petition is denied, and the proceeding is dismissed as untimely. The Supreme Court erred in finding that the proceeding was timely commenced pursuant to CPLR 304. There was no evidence that “circumstances prevent [ing] immediate filing” were present (see, Matter of Connolly v Chenot, 275 AD2d 583, 585). Moreover, the petitioner’s contention that he was prevented from timely commencing the proceeding by reason of the failure of the Commissioner of the Suffolk County Board of Elections to rule on his objections is without merit (see, Blenman v Herron, 51 NY2d 750). Therefore, the proceeding is dismissed as untimely (see, Matter of Augustine v D'Apice, 153 AD2d 714). Ritter, J. P., S. Miller, H. Miller, Smith and Townes, JJ., concur.