LEWIS PAGE 01/2105/28/2002 21:58 2127532521 BARRY LEWIS PAGE 02/21 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NEW YORK x IN THE MATTER OF THE APPLICATION OF ROBERT K. JERESKI AS CANDIDATE. AGGRIEVED SEEKING THE DEMOCRATIC Index No.: 111401/04 PARTY DESIGNATION FOR THE PUBLIC OFFICE OF REPRESENTATIVE IN CONGRESS, 14" CONGRESSIONAL DISTRICT, NEW YORK STATE Petitioner, RESPONDENTS’ MEMORANDUM OF LAW y ~ against - TO AFFIRM REFEREE’S 8 REPORT AND i NANCY MOTTOLA SCHACHER, TERRENCE RECOMMENDATIONS TO a C, O'CONNOR, DOUGLAS A. KELLNER, DISMISS THE PETITION TO RONALD D’ANGELO, FREDERIC M. UMANE, VALIDATE. ‘WEYMAN A. CAREY, NERO GRAHAM, IR., MARK B, HERMAN, STEPHEN H. WEINER, MICHAEL J. CLIMI, BEING THE, COMMISSIONERS OF THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK. costes gaan sec -and- MICAH Z. KELLNER AND HEATHER K. LEIFER, AS ORTECTORS. wand CAROLYN B. MALONEY, AS CANDIDATE AND INCUMBENT, Respondents, for an Order Pursuant to Sections 16-100, 16-102 and 16-116 of the Election Law, declaring valid the designating petition which designated the petitioner as a candidate for the office of Representative in Congress from the 14" District, New York County, City and State of New York in the Demiocratic Party Primary Election to be held September 14, 2004, and for an order Pursuant to Section 17-158 of the Election Law declaring i FMA via52 ogr182004 tsox278.0105/28/2002 21:58 = 2127532521 BARRY LEWIS PAGE invalid the designating petition of candidate Carolyn B. Maloney for said office POINTE The Referee’s Finding that the Petition to Validate ‘Was Not Properly Served Should be Affirmed Special Referee for Election Matters, Leslie Lowenstein, in the Referees Report and Recouunendations dated August 12, 2004 (“Referee’s Report”) found that Respondent Objectors Micah Z. Kellner and Heather K. Leifer (“Respondents”) were not properly served by Potitioner Robert K. Jereski (“Petitioner”) and therefore the petition to validate (“Petition”) for failure to effectuate service upon them should be dismissed. A copy of the Referee’s Report is annexed hereto as Exhibit t Pursuant to the Order of William J, Davis, dated August © 2004, Petitioner was, directed to effect service of the Order to Show Cause and Petition on Respondent Objectors and Respondent Carolyn Maloney pursuant to CPLR 308(1), which requires personal delivery. Justice Davis specificalty denied Petitioner's application that he be perinitted to effect service by using altcmative methods under CPLR 308 = (i.e., (1) affix and mail or (2) delivery to person of suitable age and discretion and mail). Petitioner failed to personally serve the Respondents with the Order to Show Cause and Petition. Instead, Petitioner apparently attempted to serve pursuant to CPLR 308(4) ~ affix and mail. ‘The failure to serve the Order to Show Cause and Petition pursuant to CPLR 308(1) is a jurisdictional defect because it violates Justice Davis’ Order prescribing the sole method of service. As held by the Second Department in Brno v, Ackerson: * ‘The question of service upon Respondent Carolyn B. Maloney, 99 Candidate and Incumbent ("Maloney") is aot addressed in the within memorandum as the Court, (Ce, J.) on the record on August 11, 2004 granted Meloney"s ‘motion to dismiss that part ofthe Petition that seks to twvalidate her designating petition ss having been ‘commenced untimely past the starry deadline as set hy the Legislature. The Referee nevertheless made a finding that Maioney was slso not properly served, (Exhibit 1) 2 3/21