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Decided on December 6, 2007
Supreme Court, Onondaga County

2007-7797
Joseph Cote, Esq. Cote, Limpert & Van Dyke, LLP Attorneys for Petitioner George P. Alessio 214 North State Street Syracuse, NY 13203 Jeffrey T. Buley, Esq.
Attorney for Respondent Paul G. Carey
79 Columbia Street
Albany, NY 12210
Joanna Gozzi, Esq.
Anthony P. Rivizzigno, Onondaga County Attorney
Attorneys for Onondaga County Respondents
Onondaga County Department of Law
421 Montgomery Street, 10th Floor
Syracuse, NY 13202
Deborah H. Karalunas, J.
By order to show cause dated November 21, 2007 and signed by Justice James Murphy, petitioner George P. Alessio sought court examination of seven disputed absentee ballots cast in the November 6, 2007 general election for the office of town justice in the Town of Salina. Petitioner in the order to show cause also sought a "preliminary injunction affording the relief requested in Plaintiff's Motion," which this court construes as the relief requested in Alessio's verified petition filed on November 21, 2007. The petition seeks the following relief: (1) a judicial determination that seven disputed ballots are valid; (2) an order directing the Board of Elections to recanvass returns in the election of Salina town justice to include seven disputed ballots; and (3) an order directing correction of any statement by the Board of Elections to include seven disputed ballots as valid ballots. Respondent Paul G. Carey field a verified answer to the petition but no cross-petition.
An evidentiary hearing took place on November 30, 2007. At that time, counsel for petitioner amended the petition to clarify that Alessio sought a judicial determination regarding the validity of the seven disputed ballots but not a ruling that all seven were valid.
Justice Murphy on December 3, 2007 signed an amended order to show cause in this matter. Among other things, the amended show cause order nunc pro tunc allowed service of the original order to show cause, petition and supporting papers upon Carey by personal service on or before November 28, 2007. In an amended answer verified on December 3, 2007, respondent Carey asserted two cross-claims.
II. Facts
Petitioner George P. Alessio was the Democratic and Working Families candidate for the office of Salina town justice in the November 6, 2007 general election. Respondent Paul G. Carey was the Republican, Conservative and Independence candidate for the same office.
Acting in their capacity as Board of Elections commissioners, Respondents Helen M. Kiggins and Edward J. Szczesniak, oversaw the canvass of absentee ballots in the town justice race. During that process, elections inspectors ruled that seven ballots were invalid. These ballots were not included in the final vote totals. Petitioner's representatives objected to the ruling. Five of the seven ballots cast votes for Alessio and the other two cast votes for Carey.
Petitioner contends that the Board of Elections intended to declare Carey the winner of the Salina town justice race by a two-vote margin out of nearly 9,000 votes cast. The original and amended orders to show cause enjoined respondents from certifying the result of the election or taking any action to alter the status quo pending the outcome of this proceeding.
Alessio's petition does not seek court action with respect to three affidavit ballots described in petitioner's supporting affidavits as unopened and uncounted. The Board of Elections opened the affidavit ballots pursuant to Justice Murphy's oral order on or about November 21, 2007. Two votes were for Carey and one was for Alessio. In his amended answer, Carey asserted a cross-claim seeking a declaration that these three affidavit ballots are valid and should be counted.
Although counsel for the county respondents participated in the November 30, 2007 evidentiary hearing, the county submitted no papers in these proceedings. Counsel for the [*2]county respondents stated that they oppose Alessio's petition and Carey's cross-claims because the actions of the Board of Elections and its two commissioners were consistent with law.
III.
Discussion

A.
Personal jurisdiction over respondent Carey


During the evidentiary hearing, counsel for respondent Carey for the first time clarified the basis for his first affirmative defense claiming a lack of personal jurisdiction. Specifically, Carey argued that petitioner failed to effect proper service of the original order to show cause pursuant to CPLR Section 308(2) because the mailing to Carey's actual place of business did not include the legend "personal and confidential" on the envelope.
The original order to show cause required that service on respondents be made pursuant to CPLR

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