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Matter of Rosenthal v. Kelly

Appellate Division of the Supreme Court of New York, Second Department
Aug 24, 2000
275 A.D.2d 429 (N.Y. App. Div. 2000)

Opinion

Argued August 22, 2000

August 24, 2000.

In a proceeding pursuant to Election Law § 16-102, inter alia, to validate petitions designating Philip Rosenthal as a candidate in a primary election to be held on September 12, 2000, for the nomination of the Democratic Party as its candidate for the public office of Trustee in the Village of Spring Valley, the appeal is from a final order of the Supreme Court, Rockland County (Sherwood, J.), dated August 9, 2000, which denied the petition and dismissed the proceeding.

Before: GUY JAMES MANGANO, P.J., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JJ.


DECISION ORDER

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

The petitioner alleged that the respondent Philip Simon abandoned his domicile in the Village of Spring Valley, and therefore his position as a Trustee in the Village of Spring Valley became vacant.

"For a change to a new domicile to be effected, there must be a union of residence in fact and an `absolute and fixed intention' to abandon the former and make the new locality a fixed and permanent home" (Matter of Hosley v. Curry, 85 N.Y. 447, 451, quoting Matter of Newcomb, 192 N.Y. 238, 251). The party alleging the change of domicile has the burden of proving the change by clear and convincing evidence (see, Matter of Hosley v. Curry, supra). Under the circumstances, the petitioner has failed to meet his burden.


Summaries of

Matter of Rosenthal v. Kelly

Appellate Division of the Supreme Court of New York, Second Department
Aug 24, 2000
275 A.D.2d 429 (N.Y. App. Div. 2000)
Case details for

Matter of Rosenthal v. Kelly

Case Details

Full title:IN THE MATTER OF PHILIP ROSENTHAL, APPELLANT, v. ANN MARIE KELLY, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 24, 2000

Citations

275 A.D.2d 429 (N.Y. App. Div. 2000)
713 N.Y.S.2d 128

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