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Judge upholds BOE ruling to kick Dunleavy off ballot

Barring a change of mind, Riverhead Councilman John Dunleavy will not appear on the Nov. 7 ballot for supervisor.

That’s because State Supreme Court Justice Robert Quinlan on Tuesday rejected Mr. Dunleavy’s lawsuit seeking to overturn the Suffolk County Board of Election’s Aug. 31 ruling that bounced him from the ballot on the grounds that his nominating petitions contained the wrong address.

“I’m not going to appeal this,” Mr. Dunleavy said outside court Tuesday, in the wake of Judge Ouinlan’s ruling. To do so would have required him to take the case of the state Appellate Division in Brooklyn.

Mr. Dunleavy, who was elected as a Republican in 2005 and has had GOP backing in all of his reelection bids, was prohibited from seeking reelection to his council seat due to a term limits law the Town Board adopted last year.

Mr. Dunleavy said the term limits law was aimed at him, and he blamed incumbent Republican Supervisor Sean Walter.

As a result, Mr. Dunleavy sought to run for supervisor this year on the Libertarian Party line, rather than to challenged Mr. Walter in a GOP primary.

Despite having collected more than 700 signatures on petitions, far more than the 449 needed to get on the ballot, his petitions were invalidated by the Suffolk County Board of Elections because the petitions listed Mr. Dunleavy’s address as being Middle Country Road, instead of Middle Road.

While that was the issue that got him bounced off the ballot by Board of Elections commissioner Anita Katz and Nick LaLota, it was hardly even brought up in court on Tuesday.

Instead, the issue at hand was whether Mr. Dunleavy’s attempt to appeal the Board of Election’s ruling came within three business days of the BOE decision, as required.

Gary Donayan, the attorney representing Mr. Dunleavy, said the legal papers initiating the appeal were mailed on Sept. 6, which was the last day to do so.

The decision was made on Aug. 31, but the three business days were separated by the three-day Labor Day weekend.

Vincent Messina, the attorney representing Charles Sclafani — a supporter of Mr. Walter who challenged the validity of the petitions — argued that the legal papers should have been received by Sept. 6, and that while the court papers were mailed on Sept. 6, they weren’t received until Sept. 7.

Justice Quinlan, citing a recent appellate court ruling on another case in Suffolk County, ruled that the legal documents should have arrived on Sept. 6, and ruled that Mr. Dunleavy, barring an appeal, is now off the Nov. 7 ballot.

Another issue brought up by Mr. Dunleavy’s attorney was whether the Board of Elections violated the state open meetings law by not giving sufficient notice of the Aug. 31 meeting, and by not giving adequate notice to Mr. Dunleavy of the Aug. 31 ruling.

Judge Quinlan, again citing a prior court ruling, said the Board of Elections is a quasi-judicial board and is exempt from the open meetings law. However, he said that decision was not needed because the issue of whether the appeal was filed in time already knocked Mr. Dunleavy off the ballot.

The November ballot in Riverhead will now have Mr. Walter facing Democrat Laura Jens-Smith for supervisor, and incumbant Jodi Giglio and newcomer Frank Bayrodt running for council on the Republican line against Democrats Catherine Kent and Michele Lynch.

Photo caption: John Dunleavy seated next to Sean Walter, right, at a meeting earlier this year. (file photo)

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