| Matter of Fingar v Martin |
| 2009 NY Slip Op 09506 [68 AD3d 1435] |
| December 18, 2009 |
| Appellate Division, Third Department |
| In the Matter of Gregory C. Fingar, as Chair of the ColumbiaCounty Republican Committee, et al., Respondents, v Virginia Martin, as a Commissioner of theColumbia County Board of Elections, et al., Appellants, et al.,Respondents. |
—[*1] Kathleen O'Keefe, Earlton, for Christopher Nolan and others, appellants. John Ciampoli, Albany, and James E. Walsh, Schenectady, for Gregory C. Fingar and others,respondents.
Per Curiam. Appeal from an order of the Supreme Court (Nichols, J.), entered December 8,2009 in Columbia County, which, in a proceeding pursuant to Election Law § 16-106,denied a motion by respondent Virginia Martin to dismiss the petition.
Petitioners commenced this proceeding pursuant to Election Law § 16-106challenging absentee ballots cast in the November 3, 2009 general election. On the limitedrecord[FN1]before us, [*2]it appears that the grounds for petitioners'challenges purportedly included, among other things, that signatures on the absentee ballots didnot match specimens on the voters' registration forms, there was inadequate information onabsentee applications and information on certain applications included incorrect or untrueinformation. Respondent Virginia Martin, the Democratic Commissioner of the ColumbiaCounty Board of Elections, moved to dismiss the petition. Martin and respondents Chair of theColumbia County Democratic Committee and the Democratic Party candidates for the publicoffices at issue contend that, in essence, this is a dispute as to the absentee voters' choice ofresidency since they each have more than just a local residence. Supreme Court denied themotion to dismiss and said respondents now appeal.
Petitioners have set forth sufficient allegations to avoid dismissal under the liberal standardapplicable to CPLR 3211 motions (see generally Kovach v Hinchey, 276 AD2d 942, 943[2000]). However, to the extent that petitioners do, in fact, premise any challenges on voters'dual residency, we note that the law regarding a voter choosing among residences for electionpurposes is interpreted broadly (see Matter of Willkie v Delaware County Bd. ofElections, 55 AD3d 1088, 1089-1090 [2008]), and a challenge to such residency should bemade pursuant to the procedure to challenge the issuing of the absentee ballots and not,as here, after those ballots have been cast (see Election Law § 8-402; Matter ofMessina v Albany County Bd. of Elections, 66 AD3d 1111, 1114 n [2009], lv denied13 NY3d 710 [2009]; Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18,25-26 [2004]). Moreover, the failure to join the voters as necessary parties reflects, under thecircumstances of this case, that their representation regarding residency to become registeredvoters is not being challenged (cf. Matter of Messina v Albany County Bd. of Elections,66 AD3d at 1113).[FN2]
The remaining issues have been considered and found unavailing.
Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: Notably, the stipulation referredto by County Court, in which petitioners apparently "narrowed the assertions contained generallyin their pleadings," is not in the record.
Footnote 2: It is unclear from this recordwhether the issue of nonresidency (see Matter of Delgado v Sunderland, 97 NY2d 420[2002]; Matter of Dorman v Scaringe, 245 AD2d 949 [1997], lv denied 91 NY2d813 [1998]) was raised before County Court.