| Matter of Stavisky v Koo |
| 2008 NY Slip Op 06665 [54 AD3d 432] |
| August 20, 2008 |
| Appellate Division, Second Department |
| In the Matter of Toby Ann Stavisky, Respondent, v PeterA. Koo, Appellant, et al., Respondent. |
—[*1]
In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petitionsdesignating Peter A. Koo as a candidate in a primary election to be held on September 9, 2008,for the nominations of the Republican Party, the Conservative Party, and the Independence Party,respectively, as their candidate for the public office of State Senator for the 16th SenatorialDistrict, Peter A. Koo appeals from (1) an order of the Supreme Court, Queens County (Dollard,J.), dated August 14, 2008, which denied his motion to dismiss the petition pursuant to CPLR3016 (b), (2) a final order of the same court, also dated August 14, 2008, which, after a hearing,granted the petition and invalidated the designating petitions, and (3) a final order of the samecourt, also dated August 14, 2008, which, after the hearing, denied his cross petition to validatethe designating petitions.
Ordered that the appeal from the order dated August 14, 2008, denying the motion of PeterA. Koo to dismiss the petition pursuant to CPLR 3016 (b) is dismissed, without costs ordisbursements; and it is further,
Ordered that the final orders dated August 14, 2008, are reversed, on the facts, without costsor disbursements, the petition is denied, the cross petition is granted, the designating petitions arevalidated, and the Board of Elections in the City of New York is directed to place the name ofPeter A. Koo on the appropriate ballot.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of the finalorders in the proceeding (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issuesraised on the appeal from the intermediate order are brought up for review and have beenconsidered on the appeals from the final orders (see CPLR 5501 [a] [1]).
The petitioner contends that the petitions designating the appellant, Peter A. Koo, as acandidate in the primary election to be held on September 9, 2008, for the nominations of theRepublican Party, the Conservative Party, and the Independence Party, respectively, as theircandidate for the public office of State Senator for the 16th Senatorial District, should beinvalidated on the ground that Koo has not resided in that district for 12 months preceding thegeneral election to be held on November 4, 2008. Specifically, the petitioner contends that Koodoes not reside at the two-bedroom condominium at 133-24 41st Avenue in Flushing, which islocated within the 16th Senatorial District and is listed on the designating petitions as hisresidence, but resides in a four-bedroom home in Port Washington, which is located outside ofthe 16th Senatorial District. NY Constitution, article III, § 7, with certain exceptions notrelevant here, mandates that a candidate for the State Senate cannot serve unless he or she hasbeen a resident of the relevant senatorial district for 12 months immediately preceding his or herelection.
Contrary to Koo's contention, the Supreme Court properly denied his motion to dismiss thepetition pursuant to CPLR 3016 (b) since the petition provided "the court and [the] parties noticeof the transactions, occurrences, or series of transactions or occurrences, intended to be proved"(CPLR 3013; see Matter of Klein vGarfinkle, 12 AD3d 604, 605 [2004]). We nonetheless deny the petition on the meritsand grant Koo's cross petition to validate his designating petitions.
The petitioner has the burden of establishing by clear and convincing evidence that theaddress listed on Koo's designating petitions was not his residence for the requisite period of time(see Matter of Shafer v Dorsey, 43AD3d 621, 622 [2007]; Matter ofJohnson v Simpson, 43 AD3d 478 [2007]). "Clear and convincing evidence is definedas follows: 'a party who must establish (his, her) case by clear and convincing evidence mustsatisfy [the trier of fact] that the evidence makes it highly probable that what (he, she) claims iswhat actually happened' " (Matter ofPoldrugovaz, 50 AD3d 117, 127 [2008], quoting NY PJI 1:64). Election Law §1-104 (22) defines residence as "that place where a person maintains a fixed, permanent andprincipal home and to which he [or she], wherever temporarily located, always intends to return."In order to be a resident of a place, a person must be physically present with the intent to remainfor a time (see People v O'Hara, 96 NY2d 378, 384 [2001]). While "New York Courtshave recognized that in this modern and mobile society, an individual can maintain more thanone bona fide residence . . . , for the purposes of the Election Law, one cannotcreate an address solely for the purpose of circumventing residency requirements" (id. at384-385 [citations omitted]). "As used in the Election Law, the term 'residence' is synonymouswith 'domicile' " (Matter of Markowitz v Gumbs, 122 AD2d 906, 907 [1986]; see Matter of Fernandez v Monegro, 10AD3d 429, 430 [2004]). "The crucial [factor in the] determination [of] whether a particularresidence complies with the requirements of the Election Law is that the individual mustmanifest an intent, coupled with physical presence 'without any aura of sham' " (People vO'Hara, 96 NY2d at 385, quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947[1973]).
At the hearing on the petition and cross petition, Koo testified that he did not own theresidence at 133-24 41st Avenue, but he began residing there in January 2007. Koo and his wifetestified that they spent approximately four to five days per week at 133-24 41st Avenue, andonly spent their weekends in Port Washington in order to maintain that home. Evidence adducedat the [*3]hearing demonstrated that Koo paid more than $24,000in New York City resident income taxes for tax year 2007, that his driver's license designated hisresidence as 133-24 41st Avenue since August 2007, and that he has been registered to vote atthat residence since at least May 2007.
The question of residence is a factual one, based on a variety of factors and circumstances(see Matter of Fernandez v Monegro, 10 AD3d at 430). Where there is conflictingtestimony, the resolution of the conflict lies, in the first instance, within the province of thehearing court, as the finder of fact. However, "[w]here, as here, a case is tried without a jury, theAppellate Division's 'authority is as broad as that of the trial court . . . and as to abench trial it may render the judgment it finds warranted by the facts' " (Matter of Lehrer v Cavallo, 43 AD3d1059, 1061 [2007], quoting Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]). Here, the evidence adduced at the trial did not warrantthe Supreme Court's conclusion that the petitioner met her evidentiary burden (see Matter ofThompson v Karben, 295 AD2d 438, 440 [2002]) of establishing that the appellant did notreside at the address listed as his residence on his designating petitions.
Accordingly, the Supreme Court should have denied the petition to invalidate Koo'sdesignating petitions, and granted Koo's cross petition to validate his designating petitions (see Matter of Diamondstone v Connor,32 AD3d 482, 483 [2006]; cf. Matter of Eisenberg v Strasser, 100 NY2d 590, 591[2003]; People v O'Hara, 96 NY2d 378 [2001]; Matter of Fernandez v Monegro, 10 AD3d 429 [2004]). Rivera,J.P., McCarthy, Dickerson, Leventhal and Belen, JJ., concur.