Matter of Diamondstone v Connor

[*1] Matter of Diamondstone v Connor 2006 NY Slip Op 51598(U) [12 Misc 3d 1196(A)] Decided on August 11, 2006 Supreme Court, Kings County Harkavy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 11, 2006
Supreme Court, Kings County

In the Matter of Ken Diamondstone, Petitioner-Candidate,

against

Martin E. Connor, Jr., Mark Stein and Naftali Ausch, Respondents Objectors, and Board of Elections in the City of New York, Respondent. In the Matter of the Application of Mark Stein, Naftali Ausch, and Martin E. Connor, Jr., Petitioners-Objector against

Ken Diamondstone, Respondent Candidate, and Board of Elections in the City of New York, Respondent.

700040/06

Ira Harkavy, J.

In these proceedings brought pursuant to Article 16 of the Election Law, (1) the Candidate Ken Diamondstone (Candidate or Mr. Diamondstone), under Index No. 700040/06, seeks to vacate and annul the determination of respondent the New York City Board of Elections (Board of Elections) and declare valid the Democratic Party and Working Families Party designating petitions designating Mr. Diamondstone as a candidate in the September 12, 2006 Primary Elections for the Public Office of State Senator from the 25th Senate District located in Kings and New York Counties; and (2) the Objectors, Mark Stein, Naftali Ausch and candidate-aggrieved Martin E. Connor, Jr., (collectively, the Objectors) under Index # 700003/06, seek to declare invalid the above-referenced Democratic Party and Working Families Party designating petitions on the ground that the Respondent-Candidate does not meet the residence requirements of Article III, Section 7, of the New York State Constitution. These proceedings were joined for trial, which commenced on August 7, 2006 and concluded on August 10, 2006.

Discussion

On or about July 10, 2006, the Candidate filed with the Board of Elections petitions purporting to designate him as a candidate in the September 12, 2006 Democratic Party and Working Families Party Primary Elections for the Public Office of State Senator from the 25th Senatorial District in Kings and New York Counties.

The petitions listed "200 Clinton Street, Apt. 5K, Brooklyn, New York 11201" as Mr. Diamondstone's place of residence. The Objectors timely filed written objections and specifications with the Board of Elections to both the aforesaid Democratic Party and Working Families Party designating petitions. In their specifications of objections, the Objectors alleged, inter alia, that Mr. Diamondstone did not meet the jurisdictional residence requirement of Article III, Section 7, of the New York State Constitution, in that he did not reside in the 25th Senatorial District for the12 months preceding this year's general election of November 7, 2006 at 200 Clinton Street, Apt. 5K, Brooklyn, NY 11201, the address set forth on the designating petition. On August 3, 2006, the Commissioners of the Board of Elections met and, based upon a specification filed by the Objectors, rendered a determination ruling that the Candidate's Democratic Party and Working Families Party designating petitions were both invalid upon the ground that Mr. [*2]Diamondstone had not met the durational residence requirements of Article III, Section 7, of the New York State Constitution. Thereafter, the Candidate timely commenced the within proceeding seeking to vacate and annul the Board of Elections' determination on the grounds that it (the Board) lacked the authority to rule on the issue of residence, and that the Objectors failed to serve Mr. Joseph Kopitz, the contact person listed on the cover sheet for the Democratic Party designating petition.

Board of Election's Limited Authority

As the Candidate correctly argues, the Board of Elections lacked the authority to invalidate his designating petitions on the ground that he had not met the residency requirements mandated by the New York State Constitution. Specifically, the Board of Elections invalidated Mr. Diamondstone's designating petitions on the ground that he was not qualified to run for Senator in the 25th Senate district because he failed to comply with the 12-month residence requirement mandated by section 7 of Article III of the New York State Constitution. In making this determination, the Board of Elections apparently relied upon the fact that Mr. Diamondstone voted by affidavit ballot (reflecting the address change to the 200 Clinton Street apartment) and filed a new voter registration with the address change on November 8, 2005, which the Board described as one day short of the 12 months preceding the November 7, 2006 General Election. This determination was improper.

A board of elections has "no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and ... such extrinsic matters [i.e., a candidate's residency], if any, are to be determined in court proceedings only"(Schwartz v Heffernan, 304 NY 474, 480 [1952]; Matter of Lindgren, 232 NY 59, 61-62 [1921]; Matter of Frankel v Cheshire, 212 App.Div. 664 [1925]; Matter of Coven v Previte, 88 Misc 2d 160 [1976], affd. 54 AD2d 663 [1976]). Indeed, "the power of a board of elections to determine the validity of a nominating petition extends only to ministerial examination'" (Feustel v Garfinkle, 29 AD3d 831 [2006], quoting Schwartz, 304 NY at 480; see Matter of Sullivan v New York City Bd. of Elections, 224 AD2d 565 [1996]).

In the instant matter, the Objectors' objections and specifications raised an issue of fact regarding, inter alia, whether Mr. Diamondstone actually "resided" at the address stated on his aforementioned designating petitions (200 Clinton Street) prior to November 8, 2005. Since the question of residence/domicile is one of fact based on a variety of factors and circumstances (see Matter of Newcomb, 192 NY 238, 250 [1908]; see also, Matter of Gregory v Board of Elections, 93 AD2d 894 [1983], affd 59 NY2d 668 [1983]; Matter of Markowitz v Gumbs,122 AD2d 906, 907 [1986]), this issue was clearly beyond the purview of the Board of Elections' limited authority to review facial deficiencies and may only be determined in a court proceeding. Thus, the Board of Elections exceeded its authority in rejecting the designating petition because of facts not appearing on the face thereof, which facts are claimed to make the Candidate ineligible for the office which he seeks (see Lucariello v Commissioners of Chautauqua County Bd. of Elections, 148 [*3]AD2d 1012, 1013 [1989]; Kaplan v Meisser, 196 Misc. 237 [1949]). Indeed,"[s]uch matters as . . . questions of the qualifications of the candidate because of age, residence and the like may be passed upon in the first instance only by the courts" (Coven v Previte, 88 Misc 2d 160 [1976]). Accordingly, the Board of Election's determination invalidating Mr. Diamondstone's Democratic Party and Working Families Party designating petitions on the ground that he was not qualified to run for Senator in the 25th Senate district is hereby vacated and annulled.[FN1] Therefore, Mr. Diamondstone's designating petitions are hereby deemed valid for all purposes herein, and the court will now turn its attention to the Objectors, who now have the burden of proof in their application to invalidate said designating petitions.

Objectors' Petition to Invalidate

Prior to the commencement of the trial, the Candidate moved to dismiss the Objectors' invalidating petition on the grounds that they failed to name and serve members of the committee to fill vacancies on the Candidate's Democratic Party designating petition, and failed to serve a complete offer of proof. That motion is denied. It is well settled that, in a proceeding to invalidate a designating petition, the members of the committee to fill vacancies are not necessary parties and, therefore, need not be joined as a party to avoid dismissal of the proceeding (see Matter of Berman v Board of Elections of County of Nassau, 68 NY2d 761 [1986]; Matter of Buley v Tutunjian, 153 AD2d 784 [1989]) nor served with a copy of the petition (see Tinari v Berger, 196 AD2d 622 [1993]). The Candidate's contention that, where the qualifications of the candidate to run are challenged, the committee to fill vacancies must be joined and served pursuant to Owens v Sharpton (45 NY2d 794 [1978]) is without merit. Furthermore, the court finds the Objectors' timely filed offer of proof sufficient to proceed with the Objectors' allegation that Mr. Diamondstone has not met the residency qualifications to run for Senate in the 25th Senate district. The court will now address the merits of the Objectors' petition to invalidate.

The Objectors contend that the Candidate failed to comply with the 12-month residency requirement contained in the New York State Constitution (NY Const, art III, §7) and that he does not reside at the place of residence stated in the designating petition, to wit 200 Clinton Street, Apt. 5K, Brooklyn, New York. Rather, the Objectors contend that the Candidate's true residence is the building he owns at 216 Dean Street in Brooklyn, which is in the 18th State Senatorial District. The Objectors argue that Mr. Diamondstone's change of his voter registration on November 8, 2005 to the 200 Clinton Street address is one day short of the 12 month constitutional residency requirement in the [*4]Senate District in which he seeks election. They further argue that Mr. Diamondstone's alleged change of residence to the apartment at 200 Clinton Street is merely a temporary move while his house at 216 Dean Street undergoes substantial renovations. Additionally, the Objectors maintain that Mr. Diamondstone has taken no steps to establish a "permanent fixed abode" at that 200 Clinton Street apartment.

Section 7 of the New York State Constitution provides that: "No person shall serve as a member of the legislature unless he or she is a citizen of the United States and has been a resident of the state of New York for five years, and, except as hereinafter otherwise prescribed, of the assembly or senate district for the twelve months immediately preceding his or her election " (emphasis supplied). "Residence" is "deemed to mean 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 Camardi v Sinawski, 297 AD2d 357 [2002]). Under the Election Law, residence and domicile are treated as one and the same (see Fernandez v Monegro, 10 AD3d 429, 430 [2004]; Matter of Isabella v Hotaling, 207 AD2d 648, 650 [1994], lv. denied 84 NY2d 801 [1994]; Matter of Markowitz v Gumbs, 122 AD2d 906 [1986]). "The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, 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 [1993]; Thompson v Karben, 295 AD2d 438, 439 [2002]). Thus, to be a resident of a place, a person must be physically present with the intent to remain for a time (see Matter of Palla v Suffolk County Bd. of Elections, 31 NY2d 36, 47 [1972]; see also, Williams v Salerno, 792 F.2d 323, 327 [2d Cir.] [1986]). Indeed, the determination of an individual's residence is dependent upon an individual's expressed intent and conduct (see Matter of Palla, 31 NY2d at 47). Furthermore, it is well settled that a challenger claiming that a candidate's residence is not his or her true residence has the burden of proving same by clear and convincing evidence (see Fernandez, 10 AD3d 429; Matter of Camardi v Sinawski, 297 AD2d 357, 358 [2002]; Thompson, 295 AD2d at 440).

Applying the foregoing statements of law to the credible facts presented, the court finds that the Objectors have not met their burden of proving by clear and convincing evidence that Mr. Diamondstone was not a resident of the apartment at 200 Clinton Street, the address listed on his designating petitions, for the 12 months preceding the November 7, 2006 General Election (i.e., prior to November 8, 2005) (see Hosley v Curry, 85 NY2d 447 [1995]; Matter of Camardi, 297 AD2d at 358; Thompson, 295 AD2d at 440). Specifically, the court finds that Mr. Diamondstone moved from 216 Dean Street[FN2] to the apartment at 200 Clinton Street on November 1, 2005, and was physically [*5]present there arguably with "the intent to remain for a time" (see Matter of Palla, 31 NY2d at 47; see also People v O'Hara, 96 NY2d 378, 385 [2001]). In reaching this determination the court credits the trial testimony of Mr. Diamondstone and his life partner, Mr. Joseph Kopitz, who both testified that they signed the lease for the Clinton Street apartment on November 1, 2005, paid the security deposit and first month's rent at that time and immediately began living at said premises. Messrs. Diamondstone and Kopitz both testified that, between November 1, 2005 and November 6, 2005, they moved various items of their belongings into the apartment (i.e., bed, mattresses, box springs, chairs, small tables, dishes, glassware, a microwave, and toiletries), and that the bigger items (i.e., 2 mirrored closets, sofa, secretary, dining room table and chairs) were later moved in by professional movers on December 4, 2005. This testimony is supported by the testimony of Ms. Evelyn Abelson, a resident of the 200 Clinton Street building, who the court found to be a wholly credible witness, stating that she first visited Messrs. Diamondstone and Kopitz at their Clinton Street apartment sometime in early November 2005, at which time she noticed an inflatable bed in their bedroom. She further testified that she had been over at their apartment on many subsequent occasions (at least once every two weeks) and noticed that various items of furniture were present in the apartment. Ms. Abelson also recalled having dinner at the apartment with Messrs. Diamonstone and Kopitz on various occasions. Additionally, Mr. Diamondstone specifically testified that he moved into the Clinton Street apartment on November 1, 2005, with the intention of staying there, and that he regarded the apartment as his permanent home right now. He further testified that, after he and Mr. Kopitz moved into the apartment, they decided to renovate various portions of 216 Dean Street. These renovations commenced in or about January or February of 2006 and are currently in progress. When the renovations are completed, Messrs. Diamondstone and Kopitz testified that they intend to rent out the remainder of the premises.[FN3]

The court finds that Mr. Diamondstone was physically present at the Clinton Street apartment commencing on November 1, 2005, and that subsequent actions taken by Mr. Diamondstone after that date arguably manifest his intent to change his domicile from the 216 Dean Street address to the apartment at 200 Clinton Street. For example, the following was adduced at trial: both Messrs. Diamondstone and Kopitz changed their voter registration to the 200 Clinton Street address on November 8, 2005 and voted in that election by affidavit ballot; the main land line telephone service was transferred from the Dean Street address to Clinton Street in mid to late November 2005; Messrs. Diamondstone and Kopitz sent out approximately 1500 personalized greeting cards in December 2005, which all contained a change of address notification listing the 200 [*6]Clinton Street apartment as their new address; Messrs. Diamondstone and Kopitz hired an interior decorator in December 2005 to arrange furniture and artwork at the Clinton Street apartment; in January 2006, Mr. Diamondstone opened a bank account listing 200 Clinton as his current address, and changed his address on file with a political organization to reflect same; and, in March 2006, Mr. Diamondstone notified the community board on which he served of his change of address to Clinton Street.

Although Mr. Diamondstone admitted to continuing to receive a majority of his mail and correspondence at the 216 Dean Street address, he testified that he continued to maintain an office on the third and first floors of that building, that the business telephone lines remained operating at the building, and that he went there on a daily basis in order to retrieve and sort mail for himself and his tenants, to pay personal, as well as business related bills for his rental properties[FN4] and to tend to matters related to his business.

He further testified that he occasionally used his personal credit cards for business purposes. Additionally, Mr. Kopitz testified that they normally received a large volume of mail at 216 Dean Street, and that their mailbox at 200 Clinton Street was too small to accommodate all of it. This testimony was unrebutted.

Notwithstanding the fact that a majority of Mr. Diamondstone's mail continues to go to the 216 Dean Street address, including his personal and business-related credit card and bank account statements, brokerage statements, which all list 216 Dean Street as his current address, and that the New York City Department of Finance records indicated that Mr. Diamondstone continues to claim the STAR exemption on the property located at 216 Dean Street during the period ending July 2006, in this court's view of the credible evidence, the objectors have failed to establish, under the clear and convincing evidentiary standard, that Mr. Diamondstone did not reside at 200 Clinton Street on November 1, 2005 or anytime thereafter with the intent of making it his permanent home (see Fernandez, 10 AD3d 429; Matter of Camardi v Sinawski, 297 AD2d at 358; Thompson, 295 AD2d at 440). Subdivision 22 of section 1-104 of the Election Law provides that the term "residence" means a "place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return". The Objectors have not established by clear and convincing evidence that the apartment at 200 Clinton Street was not Mr. Diamondstone's "residence" as that term is defined in the Election Law commencing on November 1, 2005 or at any point thereafter.

Moreover, the court rejects the Objectors' contention that Mr. Diamondstone was required to completely effectuate a change of residence/domicile to the Clinton Street apartment prior to November 7, 2005. If this court were to adopt the Objectors' interpretation of the residency requirements for state legislators, candidates would be [*7]forced to move into an assembly or senate district in which they seek to be elected at least 1½ to 2 years prior to the general election in order to have the new address reflected in all of his or her records, licences, registrations and so forth. The court finds that such an interpretation is contrary to the plain language of the constitutional provision (NY Const, art III, §7).

Based upon the foregoing, it is hereby

ORDERED that the Candidate's petition to validate is granted, and it is further

ORDERED that the Objectors' petition to invalidate is denied. It is further

ORDERED that the Board of Elections shall place upon the ballot the name of the Candidate Ken Diamondstone for the aforesaid Democratic Party and Working Families Party Primary Elections to be held on September 12, 2006 for the Public Office of State Senator from the 25th Senatorial District.

E N T E R

JSC Footnotes

Footnote 1: In light of the foregoing determination, the court sees no need to address the Candidate's additional argument that the Board's determination should be annulled because the Objectors failed to serve copies of specifications and objections on Mr. Kopitz, the contact person listed on the cover sheet for the Candidate's Democratic Party designating petition.

Footnote 2: There was testimony adduced at the trial that Mr. Diamondstone is the owner of a 4-story brick row house located at 216 Dean Street in Brooklyn, wherein he and his life partner, Joseph Kopitz lived for the past 30 years.

Footnote 3: During the trial, Messrs. Diamondstone and Kopitz testified that they currently rent out the fourth (top) floor of 216 Dean Street, which is a three-bedroom apartment, to three tenants.

Footnote 4: During the trial, Mr. Diamondstone testified that he was part owner of two apartment buildings.