Opinion
August 29, 1994
Appeal from the Supreme Court, Schenectady County (Lynch, J.).
Thomas E. Isabella commenced a proceeding, pursuant to Election Law § 16-102 (2), seeking to invalidate the Conservative Party designating petition naming Anthony J. Piscitelli as a candidate for the office of Schenectady County Clerk. In response, Piscitelli commenced a separate proceeding seeking a declaration that his designating petition is valid. Supreme Court, after a full evidentiary hearing, dismissed both petitions without reaching the merits, finding that neither Isabella nor Piscitelli had complied with CPLR 304. Isabella's subsequent motion for reargument was granted but, upon reargument, the court adhered to its prior decision. These appeals ensued.
We begin by noting that the filing requirements set forth in CPLR 304, as opposed to the various time periods contained in the new commencement-by-filing statutes enacted by the Laws of 1992 (ch 216) (see, Matter of Barbarite v. Hill, 197 A.D.2d 740), do apply to Election Law proceedings (see, Matter of Zicari v Stewart, 207 A.D.2d 951). We nevertheless conclude that Supreme Court erred in dismissing Isabella's invalidation petition without reaching the merits. As the record indecates, Piscitelli never answered Isabella's invalidation petition nor did he make any motions with respect thereto; only the Schenectady County Board of Elections (hereinafter Board) answered, raising two affirmative defenses not related to whether Isabella appropriately, and therefore timely, filed/commenced his invalidation proceeding. We therefore find that because Piscitelli neither moved to dismiss the invalidation petition nor raised such an objection in a responsive pleading, Piscitelli has waived any objection as to the timely commencement of Isabella's invalidation petition (see, CPLR 3211 [a] [5]; [e]). Under such circumstances, Supreme Court lacked the authority to go beyond the face of the pleadings and sua sponte examine such details.
Having so concluded, we shall proceed to consider the merits of Isabella's invalidation petition, as the full record is before us and the parties have addressed the merits in their briefs (see, Meraner v. Albany Med. Ctr., 199 A.D.2d 740, 741-742).
Election Law § 6-132 (2) provides, inter alia, that each sheet of a designating petition be witnessed and the residence of said witness must be set forth. While the Election Law equates residence with domicile (see, Auerbach v. Rettaliata, 765 F.2d 350, 351; Matter of Markowitz v. Gumbs, 122 A.D.2d 906, 907, lv denied 68 N.Y.2d 605), it does not preclude a person from having two residences and choosing one for election purposes provided he or she has "legitimate, significant and continuing attachments" to that residence (Matter of Ferguson v. McNab, 60 N.Y.2d 598, 600).
Pages 1 and 12 of Piscitelli's designating petition were witnessed by Rocco Verrigni, who listed his address as 150 1/2 Front Street in Schenectady. Predicated on Verrigni's testimony, however, we find that Verrigni was not a resident of 150 1/2 Front Street for the purposes of the Election Law (see, Election Law § 1-104) since he did not have significant and continuing attachments to that residence (see, Matter of Ramos v Gomez, 196 A.D.2d 620). Consequently, the 11 remaining signatures on those pages of Piscitelli's designating petition that Verrigni witnessed are invalid (see, Matter of Lemishow v. Black, 63 N.Y.2d 684, 685). Likewise, Verrigni's own signature on page 6 of Piscitelli's designating petition is also invalid (see, Matter of Liepshutz v. Palmateer, 65 N.Y.2d 965).
Three other signatures on pages 1 and 12 were already invalidated by the Board.
It is undisputed that Piscitelli needed 101 valid signatures on his designating petition. His original petition contained 121 signatures. The Board previously invalidated 20 signatures, leaving 101. We have now invalidated 12 more signatures on Piscitelli's designating petition. Thus, even if we were to reach the merits of Piscitelli's validation petition and restore the three signatures he now maintains were improperly invalidated by the Board, his designating petition would still lack the requisite 101 valid signatures. Hence, Piscitelli's designating petition is invalidated.
Cardona, P.J., White, Casey, Weiss and Peters, JJ., concur. Ordered that the orders are modified, on the law, without costs, by granting the invalidation petition of Thomas E. Isabella and invalidating the designating petition naming Anthony J. Piscitelli as the Conservative Party candidate for the office of Schenectady County Clerk in the September 13, 1994 primary election, and, as so modified, affirmed.