Opinion
009142/08.
Decided June 10, 2008.
Cartier, Bernstein, Auerbach Dazzo, By: Kenneth A. Auerbach for petitioner, Patchogue, NY.
Steinbert Boyle, By: Robert G. Steinberg (Of Counsel), E. Islip NY.
Sale Groothuis, By: Mark L. Groothuis (Grenfell), Hempstead, NY.
Nassau County Attorney, for Board of Elections, By: Karen Schmidt, Mineola, NY.
Jaspan Schlesinger Hoffman, By: Chris Vatter, for Village Clerk, Frank C. Dell'Amore (6/4/08), Garden City, NY.
These proceedings were commenced to invalidate a petition designating the respondent EARL J. GRENFELL, JR. ("Grenfell") as the Village Reform Party candidate for the position of Mayor of the Village of Manorhaven in the election to be held on June 17, 2008. By "so ordered" stipulations dated June 2, 2008, the actions were joined for trial. As to the Li action, the petition also was amended to raise an objection based on Respondent Grenfell's lack of residence within Manorhaven and the specific line by line objections were withdrawn.
It is alleged that Grenfell failed to comply with the residency requirements of Election Law § 1-104(22) in that he is not a resident of the Village of Manorhaven. Grenfell purports to reside at 36 Dunwood Road, Port Washington, New York ("Dunwood") which is within the Village of Manorhaven.
A substantial portion of the Petitioner's case rested on Grenfell's testimony who initially was called as the Petitioner's witness. Following a significant portion of Mr. Grenfell's testimony, counsel for the Petitioner, Li, requested to be excused from the balance of the trial and to be bound by any result and testimony in the Amiry action. This was agreed to by all counsel and granted by the Court.
Also testifying in this trial were Patricia Babington (an employee of National Grid), Ellida Nellis (the girlfriend of respondent Grenfell), and Robert Douglas "Doug" Morrell (an investigator hired on behalf of the Petitioner, Amiry).
The Trial was held from June 2, 2008 through June 6, 2008.
The law places the burden of proof by clear and convincing evidence on the Petitioner that Grenfell was not a resident of the Village of Manorhaven preceding the upcoming election. Hosley v. Curry, 85 NY2d 447. It was incumbent on petitioner to show by clear and convincing evidence that Grenfell did not have a definite and honest intent to make the Dunwood residence his fixed and permanent home. The petitioner argues that this alleged residence is a sham.
Mr. Grenfell testified that Elida Nellis has been his girlfriend for about seven years. Beginning in approximately 2001, he stayed with her at her home once in awhile. At that time, she lived at 58 Edgewood in Port Washington. His residence was at 2 Harbor Street in Massapequa with his parents.
Beginning in 2002 he lived with Ms. Nellis at her home at 29 Cambridge Avenue in Manorhaven. He kept some belongings there and got some mail there. He also went back and forth to his parents home in Massapequa due to their illness.
As of 2004, the 29 Cambridge Avenue address with Ms. Nellis was his permanent address. He registered with the Board of Elections at this address.
In November 2006, he moved with Ms. Nellis to her house at 8 Fairfield Avenue ("Fairfield") in Port Washington. He brought his clothes and his tools. He did construction work at the premises. He filed a change of registration with the Board of Elections due to the change in his permanent residence. The Fairfield address is not in the Village of Manorhaven.
Ms. Nellis has remained at her home located at the Fairfield address to date. Their relationship has continued.
The Court then heard conflicting testimony as to why Mr. Grenfell purportedly moved from Fairfield to an apartment in a three family home owned by Ms. Nellis at 60 Graywood ("Graywood") in Port Washington in December 2007. Although Mr. Grenfell claims to have timely notified the Board of Elections as to his move, this was not supported by the records in evidence. His purpose in moving was to establish residency in Manorhaven and/or to do construction work at Graywood. He did not pay any rent nor did he have a lease. Electric service was never in his name. He brought with him an Aerobed, some tools, and some personal belongings. He did not bring any furniture. He sometimes slept at Fairfield, sometimes at Graywood, and occasionally at his parents home in Massapequa. He also used either a car or a van owned by Ms. Nellis. He stored tools in the van.
Doug Morrell testified credibly on behalf of the petitioner.
He testified that the distance from Fairfield to Dunwood is 1.6 miles. Essentially, he testified that during any of his mid — May, 2008 nighttime visits to Dunwood, it did not appear that anyone was living in the second floor apartment. He did see Mr. Grenfell at the Fairfield location at various times.
Mr. Grenfell then testified on his own behalf. He started to live sometimes at Dunwood while working on the apartment. He did not produce any utility bills, repair bills or furniture bills for Dunwood.
The Court of Appeals has recognized that:
[t]he Election Law defines residence as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return" (Election Law § 1-104). Thus, to be a resident of a place, a person must be physically present with the intent to remain for a time ( see, Matter of Palla v. Suffolk County Bd. of Elections, 31 NY2d 36, 47, 334 N.Y.S.2d 860, 286 N.E.2d 247; see also, Williams v. Salerno, 792 F.2d 323, 327 [2d Cir.]). The definition of "residence" comes from traditional notions of domicile ( Matter of Palla, supra, 31 NY2d, at 47, 334 N.Y.S.2d 860, 286 N.E.2d 247; see also, Matter of Hosley v. Curry, 85 NY2d 447, 451, 626 N.Y.S.2d 32, 649 N.E.2d 1176, rearg. denied 85 NY2d 1033, 631 N.Y.S.2d 292, 655 N.E.2d 405). The determination of an individual's residence is dependent upon an individual's expressed intent and conduct ( Matter of Palla, supra, 31 NY2d, at 47, 334 N.Y.S.2d 860, 286 N.E.2d 247, People v. O'Hara, 96 NY2d 378, 384).
He works as a jeweler and does construction work at different homes that his girlfriend owned. He claims to have been paid in cash for materials but not paid for the labor. The various construction work done includes sheetrock, flooring tile, plumbing, roofing, painting, etc. He used various ladders as well.
Mr. Grenfell also receives Social Security Disability payments for full disability due to a leg injury he sustained in the early 1980's. Mr. Grenfell testified that he has not notified Social Security of any change in his work status.
In February, 2008 he testified that he moved yet again to a home owned by Ms. Nellis' mother, Mildred Boehm. This time it was to the second floor apartment at 36 Dunwood. The apartment needed a lot of work. He had a lease dated March 1, 2008 with a commencement date of March 15, 2008 at a monthly rent of $1,000 and security of $1,000. The lease and rider were signed by Ms. Nellis on her mother's behalf. Supposedly, Ms. Boehm required a lease, although Ms. Nellis later testified that her mother did not even know about Mr. Grenfell's tenancy. There is also a notarized signature of Mr. Grenfell on the lease which is dated May 22, 2008. There is no mention in the lease or rider of any barter arrangement for construction in lieu of rent. Mr. Grenfell claims to have moved to the Dunwood location during the first or second week of March. He brought with him some clothes, his aerobed, some tools, some books and a radio.
He kept a large recliner chair that had been left in the apartment. He did not bring any furniture. The apartment had a refrigerator, electric stove, and a broken fan. There was no microwave. There was baseboard heating. In the refrigerator he kept Diet Coke, Gatorade, cold cuts, water, some condiments and Hot Pockets. He ate a number of meals at Fairfield with Ms. Nellis. He often slept at Fairfield.
He did not have telephone service or cable TV at Dunwood. He uses a cell phone owned by Ms. Nellis.
He first attempted to place the electric service into his name on May 20, 2008 after the commencement of these proceedings. He eventually effectuated the change on May 22, 2008.
He claims to have notified the Board of Elections of his address change in mid April, 2008. He states that his prior address change (Fairfield to Graywood) in mid-February, 2008 was returned to him as the postage allegedly fell off.
Some two months ago, after he purportedly moved to Dunwood, he then sent in both address changes. The Board of Elections date stamped these on April 18, 2008.
He did not make any attempt to change the address on his New York State driver's license until April 28, 2008. He did not notify the Department of Motor Vehicles of the change within 10 days as required ( see, VTL § 505 (5)). He claims to have been too busy prior to that date.
He did not file a 2007 tax return, therefore the address which would have been on it is unknown.
Ms. Patricia Babington testified in a forthright and credible manner. She is a supervisor at National Grid and is involved with customer relations. Various records were admitted into evidence. The meter for the second floor apartment at Dunwood had been registered to Mr. Alex Mejia from February 1, 2006 through March 19, 2008. In late May, 2008, Mr. Grenfell tried to open an account in his name, and then requested that it be retroactive to mid March and he would assume responsibility for that period. The usage on the account for the period from mid-March to mid-May, 2008, compared to a similar period in 2007, shows significantly less usage in 2008. The two month usage is quite a bit lower than any other two month period on the account, despite Mr. Grenfell's testimony of living there and also using power tools there.
The witness stated that most customers apply for current service or a future date, not an old date.
Ms. Elida Nellis then testified. She referred to Earl Grenfell as her boyfriend since 2001 and stated "he's my honey". She acknowledged that she and Mr. Grenfell lived together from 2001 through late 2006. When she bought her home at Fairfield, everything was broken. Mr. Grenfell worked on it for about a year before they moved in. After they moved in, Mr. Grenfell continued to do work on the house.
She stated that Mr. Grenfell stopped living with her in late 2007 because the Graywood apartment became available. He wanted to establish residency in Manorhaven and he would do renovations there. She testified that he was afraid to reside with Ms. Nellis if he ran for political office as her home had been damaged when he previously ran. Despite this assertion, they frequently spent time at Fairfield and went out in public in Manorhaven quite often.
At Graywood, Ms. Nellis had leases with her other tenants. She did not have a lease with Mr. Grenfell. There were no utilities in Mr. Grenfell's name and Mr. Grenfell did not pay any rent.
Another tenant became available for Graywood after Mr. Grenfell did significant renovations, so Mr. Grenfell moved out to Dunwood, a less expensive apartment.
In mid-February, 2008, Mr. Grenfell moved to Dunwood. She later stated that from mid-February to mid-March, Mr. Grenfell was either at Fairfield or at his parents. He began to actually live there in mid-March. He has continued to sleep at Fairfield up to five times a week. He often has dinner there. Mr. Grenfell was not paid for any work done at Dunwood. There are no receipts for any rent paid. He paid $500 in cash and a third party check for $950.
Although Mr. Grenfell stated during trial that he was going to the bank to withdraw money for rent, this is not supported by his balance of $31.68, even assuming his $600 social security disability deposit would go in.
Mr. Grenfell never obtained renter's insurance as required by the lease rider. He never paid security. He has not paid for oil or water but no bill has been furnished.
Mr. Grenfell began to circulate nominating petitions for the Village Reform Party for himself for the Office of Mayor of the Village of Manorhaven on April 22, 2008. He continued circulating them until May 10, 2008. As the subscribing witness, he attested to the signatures as well as his own residence being at 36 Dunwood Road in Manorhaven. Essentially, he represented to the public that he resided at Dunwood.
As held in Eisenberg v. Strasser , 1 Misc 3d 299, Election Law § 1-104 (22) defines "residence" as "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" (see Camardi v Sinawski, 297 AD2d 357 [2002]). Under the Election Law, residence and domicile are treated as one and the same (see Matter of Isabella v Hotaling, 207 AD2d 648, 650, Iv denied 84 NY2d 801; Matter of Markowitz v Gumbs, 122 AD2d 906).
The issue is whether Mr. Grenfell genuinely took up residence at Dunwood, thus making it a bona fide residence from which he could vote ( People v O'Hara, 96 NY2d 378, 385). Whether a particular residence complies with the requirements of the Election Law is determined by the individual's manifest intent, coupled with physical presence "without any aura of sham" ( People v O'Hara, 96 NY2d 378, 385, quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947; Thompson v Karben, 295 AD2d 438, 439). The determination of an individual's residence is dependent upon an individual's expressed intent and conduct ( Matter of Palla, 31 NY2d 36, 47). See also; Bastone v Cocco, 230 AD2d 950.
It has also been held in People v O'Hara, 96 NY2d 378 that an address cannot be created solely for the purpose of circumventing residency requirements ( Matter of Hosley v Curry, 207 AD2d 116, 118, rev'd on other grounds 85 NY2d 447, supra; see also, Matter of Lemishow v Black, 104 AD2d 460 , affd 63 NY2d 684,685).
The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence "without any aura of sham" ( Matter of Gallagher, supra, 41 AD2d at 947). See also, Fernandez v Monegro , 10 AD3d 429
As to specifically when the residency requirement needs to be satisfied, no specific requirement relating to the Village of Manorhaven has been provided to the Court. Village Law § 3-300(1) provides: "In addition to any other legal requirements or prohibitions, no person shall be eligible to be elected or appointed as mayor, trustee or member of any board or commission, and, no person, if elected or appointed to such office, shall be eligible to continue to serve therein, who is not a citizen of the United States of America, at least eighteen years of age, and a resident of the village".
Pursuant to Public Officers Law § 3(1), a candidate for civil office must be a resident of the political subdivision of the state for which he shall be chosen. The term resident in this provision is synonymous with domicile. Residence requires bodily presence in a given place, while domicile requires presence as well a intention to make it one's domicile. Matter of Newcomb, 192 N . . 2238 (1908). "The question of domicile is one of fact rather than law, and it frequently depends on a variety of circumstances, which differ as widely a the peculiarities of the individual : Id at 452. A change of residence is effective, even if only for a short time, if there is a good faith intention to change domicile. Id.
When coupled with Election Law § 5-102, this residency requirement must exist for a minimum of thirty days preceding the election.
Here, the court finds that Mr. Grenfell was not a bona fide resident of the Village at the time of circulating petitions and continuing thereafter. Even assuming, arguendo, that residency was established on May 22, 2008 when electric service at Dunwood was placed in Mr. Grenfell's name, this was not at least thirty days prior to the June 17, 2008 election date. However, the court does not find that residency at Dunwood has been truly established at any time. See Gregory v. Board of Elections of New York, 93 AD2d 894 (1983).
In addition, the court finds that Mr. Grenfell was less than candid about his ability to work. A claimant for social security disability benefits must be disabled under the relevant definition. "Disability is defined by the Social Security Administration as "an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months . . ."42 U.S.C.A. § 423 (d). A recipient of benefits based on disability may not be entitled if there is a finding that the impairment has ceased, does not exist, or is not disabling. The individual engaging in substantial gainful activity is substantial evidence demonstrating the lack of a disability. 42 U.S.C. § 423 (f)(1)(B).
Pursuant to the doctrine of Falsus in Uno, the court may disregard the entire testimony of a witness who falsely testifies regarding a material fact. In Deering v. Metcalf, 74 NY 501 (1878), the court held that a witness who has shown to testify falsely is not entitled to belief upon any issue, and falsus in uno is invoked. The court reasoned, "the law holding him entirely unworthy of belief, his testimony is as no testimony, and there is no evidence upon which to base the conclusion of law excepted to."
With regard to the burden of proof which must be met by the petitioner, (See Camardi v. Sinawski; 297 AD2d 357) the court holds that clear and convincing evidence has been submitted that Earl J. Grenfell, Jr. was not a resident of The Village of Manorhaven and therefore is not eligible to run for Mayor.
For the reasons set forth above, each of the petitions is granted.
The Respondent, Village Clerk and/or the Board of Elections is directed not to place and/or print the name of Respondent, Earl J. Grenfell, Jr. on the ballot for the public office of Mayor for the Incorporated Village of Manorhaven in the village election scheduled to be held on June 17, 2008.
This constitutes the Decision, Order and Judgment of the Court.