IN RE: Lola M. CAMARDI

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Lola M. CAMARDI, Appellant, v. Gary SINAWSKI, et al., Respondents-Respondents, et al., Respondents.

Decided: August 23, 2002

DAVID S. RITTER, J.P., NANCY E. SMITH, SONDRA MILLER, HOWARD MILLER and SANDRA L. TOWNES, JJ.

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition, among other things, designating Gary Sinawski and Debra Pearl as candidates in a primary election to be held on September 10, 2002, for the nomination of the Independence Party as its candidates for the positions of Male and Female Members, respectively, of the Independence Party State Committee for the 16th Assembly District, Nassau County, the petitioner appeals, as limited by her brief, from so much of a final order of the Supreme Court, Nassau County (Roberto, J.), dated August 19, 2002, as, after a hearing, denied those branches of the petition which were to invalidate so much of the petition as designated Gary Sinawski and Debra Pearl as candidates.

ORDERED that the final order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, those branches of the petition which were to invalidate so much of the petition as designated Gary Sinawski and Debra Pearl as candidates for the nomination of the Independence Party as its candidates for the position of Male and Female Members, respectively, of the Independence Party State Committee for the 16th Assembly District, Nassau County, are granted, and the matter is remitted to the Nassau County Board of Elections to remove the names of Gary Sinawski and Debra Pearl from the appropriate ballot.

 The Supreme Court erred in concluding that the appellant failed to sustain her burden of proving that Gary Sinawski was not a resident of the 16th Assembly District, Nassau County, for the 12 months immediately preceding the primary election to be held on September 10, 2002 (see Election Law § 2-102 [3] ).  “Residence” is “deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return” (Election Law § 1-104[22] ).   There was testimony adduced at the hearing that Sinawski moved to Graywood Road in Port Washington, Nassau County, on October 31, 2000.   However, in addition to other indications that he still resides in New York City, Sinawski's driver's license and attorney registration filed with the Office of Court Administration still list his address as West 43rd Street in New York County.   Furthermore, Sinawski, a practicing Election Law attorney, did not change his voter registration to Nassau County until October 12, 2001, and admitted to voting on November 7, 2000, from New York County while ostensibly residing in Nassau County.   In addition, on his 2000 New York State Resident Income Tax Return, filed in 2001, Sinawski listed New York as his county of residence and Manhattan as his School District.   Accordingly, the appellant met her burden of proving by clear and convincing evidence that Sinawski was not a resident of Nassau County during the requisite time period (see Matter of Hosley v. Curry, 85 N.Y.2d 447, 626 N.Y.S.2d 32, 649 N.E.2d 1176).

 Since Sinawski was a subscribing witness to some of the signatures on the designating petition, it must be invalidated as to both candidates (see Election Law § 6-132[2];  Lemishow v. Black, 104 A.D.2d 460, 478 N.Y.S.2d 971, affd. 63 N.Y.2d 684, 479 N.Y.S.2d 972, 468 N.E.2d 1109;  Matter of Ramos v. Gomez, 196 A.D.2d 620, 601 N.Y.S.2d 343).

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