Matter of Chaimowitz v Calcaterra

Matter of Chaimowitz v Calcaterra 2010 NY Slip Op 06436 [76 AD3d 650] August 18, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

In the Matter of Ely V. Chaimowitz et al., Respondents,
v
Regina M. Calcaterra, Appellant, et al., Respondents.

—[*1]

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate petitions designating Regina M. Calcaterra as a candidate in a primary election to be held on September 14, 2010, for the nominations of the Democratic Party and the Working Families Party, respectively, for the public office of State Senator, 1st Senatorial District, Regina M. Calcaterra appeals from a final order of the Supreme Court, Suffolk County (Bivona, J.), dated August 9, 2010, which, after a hearing, in effect, granted the petition and invalidated the designating petitions.

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

Contrary to the appellant's contention, under the circumstances of this case, the Supreme Court correctly determined that the appellant was properly served.

The petitioners established, by clear and convincing evidence, that the appellant failed to meet the constitutional and statutory residency requirements (see NY Const, art III, § 7; Election Law § 6-122; Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d 436, 437 [2008]; Matter of Stavisky v Koo, 54 AD3d 432, 433 [2008]; Matter of Fernandez v Monegro, 10 AD3d 429 [2004]; Matter of Camardi v Sinawski, 297 AD2d 357, 358 [2002]). "As used in the Election Law, the term residence is synonymous with domicile" (Matter of Stavisky v Koo, 54 AD3d at 434, quoting Matter of Markowitz v Gumbs, 122 AD2d 906, 907 [1986] [internal quotation marks omitted]; see Matter of Fernandez v Monegro, 10 AD3d 429 [2004]). "The 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 NY2d 378, 385 [2001], quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947 [1973]; see Election Law § 1-104 [22]; Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d at 437; Matter of Stavisky v Koo, 54 AD3d at 434; Matter of Fernandez v Monegro, 10 AD3d 429 [2004]).

"The question of residence is a factual one, based on a variety of factors and circumstances" (Matter of Diamondstone v Connor, 32 AD3d 482, 483 [2006]; see Matter of Fernandez v Monegro, 10 AD3d at 430). Here, the evidence adduced at the hearing supported the Supreme Court's determination that the appellant failed to meet the constitutional and statutory residency requirements (see Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d at 437; Matter of [*2]Ramos v Gomez, 196 AD2d 620, 621 [1993]; Matter of Carey v Foster, 164 AD2d 930 [1990]; Matter of Thompson v Hayduk, 45 AD2d 955, 956 [1974], affd 34 NY2d 980 [1974]). Accordingly, the Supreme Court properly, in effect, granted the petition and invalidated the designating petitions. Rivera, J.P., Santucci, Angiolillo, Eng and Hall, JJ., concur.

[Recalled and vacated by 76 AD3d 685.]