IN RE: Ely V. Chaimowitz (2010)

Argued-August 17, 2010

DECISION & ORDER

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petitions designating Regina M. Calcaterra as a candidate in a primary election to be held on September 14, 2010, for the nominations of the Democratic Party and the Working Families Party, respectively, for the public office of State Senator, 1st Senatorial District, Regina M. Calcaterra appeals from a final order of the Supreme Court, Suffolk County (Bivona, J.), dated August 9, 2010, which, after a hearing, in effect, granted the petition and invalidated the designating petitions.

ORDERED that the final order is affirmed, without costs or disbursements.

Contrary to the appellant's contention, under the circumstances of this case, the Supreme Court correctly determined that the appellant was properly served.

The petitioners established, by clear and convincing evidence, that the appellant failed to meet the constitutional and statutory residency requirements (see NY Const, art III, § 7;  Election Law § 6-122;  Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d 436, 437;  Matter of Stavisky v. Koo, 54 AD3d 432, 433;  Matter of Fernandez v. Monegro, 10 AD3d 429;  Matter of Camardi v. Sinawski, 297 A.D.2d 357, 358).  “As used in the Election Law, the term ‘residence’ is synonymous with ‘domicile’ ” (Matter of Stavisky v. Koo, 54 AD3d at 434, quoting Markowitz v. Gumbs, 122 A.D.2d 906, 907 [internal quotation marks omitted];  see Matter of Fernandez v. Monegro, 10 AD3d 429).  “The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent [to reside there], coupled with physical presence ‘without any aura of sham’ ” (People v. O'Hara, 96 N.Y.2d 378, 385, quoting Matter of Gallagher v. Dinkins, 41 A.D.2d 946, 947;  see Election Law § 1-104[22];  Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d at 437;  Matter of Stavisky v. Koo, 54 AD3d at 434;  Matter of Fernandez v. Monegro, 10 AD3d 429).

“The question of residence is a factual one, based on a variety of factors and circumstances” (Matter of Diamondstone v. Connor, 32 AD3d 482, 483;  see Matter of Fernandez v. Monegro, 10 AD3d at 430).   Here, the evidence adduced at the hearing supported the Supreme Court's determination that the appellant failed to meet the constitutional and statutory residency requirements (see Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d at 437;  Matter of Ramos v. Gomez, 196 A.D.2d 620, 621;  Matter of Carey v. Foster, 164 A.D.2d 930;  Matter of Thompson v. Hayduk, 45 A.D.2d 955, 956, affd 34 N.Y.2d 980).   Accordingly, the Supreme Court properly, in effect, granted the petition and invalidated the designating petitions.

RIVERA, J.P., SANTUCCI, ANGIOLILLO, ENG and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court