Opinion
2014-08-20
In the Matter of Harris WEISS, et al., appellants, v. Zephyr R. TEACHOUT, respondent-respondent, et. al, respondent.
, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and HECTOR D. LaSALLE, JJ.
In a proceeding pursuant to Election Law § 16–102, inter alia, to invalidate a petition designating Zephyr R. Teachout as a candidate in a primary election to be held on September 9, 2014, for the nomination of the Democratic Party as its candidate for the public office of governor of the State of New York, the petitioners appeal, as limited by their brief, from so much of a final order of the Supreme Court, Kings County (Walker, J.), dated August 11, 2014, as, after a hearing, denied the petition, inter alia, to invalidate and dismissed the proceeding.
ORDERED that the final order is affirmed insofar as appealed from, without costs or disbursements.
The New York Constitution requires that a candidate for the office of governor reside within the state for the five-year period immediately preceding the election ( seeN.Y. Const, art IV, § 2). The Election Law defines the term “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” (Election Law § 1–104[22]; see Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d 139, 146, 897 N.Y.S.2d 704, 924 N.E.2d 812; People v. O'Hara, 96 N.Y.2d 378, 384, 729 N.Y.S.2d 396, 754 N.E.2d 155; Matter of Willis v. Suffolk County Bd. of Elections, 54 A.D.3d 436, 437, 862 N.Y.S.2d 608; Matter of Stavisky v. Koo, 54 A.D.3d 432, 434, 863 N.Y.S.2d 87; Matter of Fernandez v. Monegro, 10 A.D.3d 429, 430, 780 N.Y.S.2d 741; Matter of Camardi v. Sinawski, 297 A.D.2d 357, 746 N.Y.S.2d 489; Matter of Thompson v. Karben, 295 A.D.2d 438, 439, 743 N.Y.S.2d 175). Thus, “[a]s used in the Election Law, the term ‘residence’ is synonymous with ‘domicile’ ” ( Matter of Stavisky v. Koo, 54 A.D.3d at 434, 863 N.Y.S.2d 87 [internal quotation marks omitted]; see Matter of Chaimowitz v. Calcaterra, 76 A.D.3d 685, 686, 909 N.Y.S.2d 76; Matter of Fernandez v. Monegro, 10 A.D.3d at 430, 780 N.Y.S.2d 741; Matter of Markowitz v. Gumbs, 122 A.D.2d 906, 907, 505 N.Y.S.2d 948). Although “[t]he 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 at 385, 729 N.Y.S.2d 396, 754 N.E.2d 155, quoting Matter of Gallagher v. Dinkins, 41 A.D.2d 946, 947, 343 N.Y.S.2d 960, affd. 32 N.Y.2d 839, 346 N.Y.S.2d 268, 299 N.E.2d 681; see Matter of Palla v. Suffolk County Bd. of Elections, 31 N.Y.2d 36, 47, 334 N.Y.S.2d 860, 286 N.E.2d 247), the party challenging residence has the burden of proof by clear and convincing evidence ( see Matter of Chaimowitz v. Calcaterra, 76 A.D.3d at 686, 909 N.Y.S.2d 76; Matter of Willis v. Suffolk County Bd. of Elections, 54 A.D.3d at 437, 862 N.Y.S.2d 608; Matter of Fernandez v. Monegro, 10 A.D.3d at 429, 780 N.Y.S.2d 741; Matter of Camardi v. Sinawski, 297 A.D.2d at 358, 746 N.Y.S.2d 489; Matter of Rosenthal v. Kelly, 275 A.D.2d 429, 713 N.Y.S.2d 128).
“The question of residence is a factual one, based on a variety of factors and circumstances” ( Matter of Chaimowitz v. Calcaterra, 76 A.D.3d at 686, 909 N.Y.S.2d 76 [internal quotation marks omitted]; see Matter of Diamondstone v. Connor, 32 A.D.3d 482, 483, 819 N.Y.S.2d 486). Although Zephyr R. Teachout has resided in several different residences within the City of New York since 2009, while maintaining close connections to her childhood domicile of Vermont, that is nothing more than an ambiguity in the residency calculus. However, the burden in this proceeding is not on Teachout to establish residency, but rather, upon the petitioners to establish by clear and convincing evidence that she does not meet the residency requirements established by article IV, section 2, of the New York Constitution. The Supreme Court's determination that the petitioners failed to meet their burden of demonstrating that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts ( seeN.Y. Const., art. IV, § 2; Election Law § 1–104[22]; People v. O'Hara, 96 N.Y.2d at 385, 729 N.Y.S.2d 396, 754 N.E.2d 155; Matter of Newcomb, 192 N.Y. 238, 250, 84 N.E. 950; Matter of Chaimowitz v. Calcaterra, 76 A.D.3d at 686, 909 N.Y.S.2d 76; Matter of Willis v. Suffolk County Bd. of Elections, 54 A.D.3d at 437, 862 N.Y.S.2d 608; Matter of Stavisky v. Koo, 54 A.D.3d at 434, 863 N.Y.S.2d 87; Matter of Rosenthal v. Kelly, 275 A.D.2d at 429, 713 N.Y.S.2d 128). Accordingly, the Supreme Court properly denied the petition, inter alia, to invalidate the petition designating Teachout as a candidate for the public office of governor and dismissed the proceeding.