Maasv.Gaebel

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of the State of New YorkMay 21, 2015
9 N.Y.S.3d 701 (N.Y. App. Div. 2015)
9 N.Y.S.3d 701129 A.D.3d 1782015 N.Y. Slip Op. 4353

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518079

05-21-2015

In the Matter of Gary D. MAAS, Respondent, v. Rodney GAEBEL et al., as Commissioners of the Sullivan County Board of Elections, et al., Respondents, and Rubin Braunstein et al., Appellants.

Gail B. Rubenfeld, Monticello, for appellants. Newberg Law Offices, Monticello (Marvin Newberg of counsel), for Gary D. Maas, respondent.


Gail B. Rubenfeld, Monticello, for appellants.

Newberg Law Offices, Monticello (Marvin Newberg of counsel), for Gary D. Maas, respondent.

Before: PETERS, P.J., EGAN JR., ROSE and LYNCH, JJ.

Opinion

PETERS, P.J.

Appeal from an order of the Supreme Court (Schick, J.), entered December 26, 2013 in Sullivan County, which, among other things, partially granted petitioner's application, in a proceeding pursuant to Election Law § 16–106, to, among other things, declare invalid certain absentee ballots cast for certain public offices in the Town of Cochecton at the November 5, 2013 general election.Petitioner, the Vice–Chair of the Sullivan County Republican Committee, filed affidavits with the Sullivan County Board of Elections (hereinafter the Board) in October 2013 challenging the eligibility of 29 registered voters in the Town of Cochecton, Sullivan County on the basis that each was not a resident of the Town within the meaning of the Election Law (see Election Law § 5–220 ). Sixteen of the challenged voters are shareholders of apartments at the Lake Huntington Summer Community cooperative located in Lake Huntington, Sullivan County (hereinafter collectively referred to as the Lake Huntington voters). Upon receipt of the challenges, the Board notified the 29 challenged voters and, pursuant to its duty to investigate (see Election Law § 5–220[1] ), requested that each complete a detailed questionnaire. Following their review of the questionnaires that had been returned, respondents Rodney Gaebel and Ann Prusinski, the Commissioners of the Board, disagreed as to whether petitioner's challenges should be granted, resulting in a ruling by the Board that the voter registrations would stand (see Election Law § 3–212[2] ).

Petitioner then commenced this proceeding pursuant to Election Law § 16–106 challenging the Board's determination and seeking an order directing that the challenged voters' absentee ballots for the November 2013 general election be declared invalid and their names removed from the Town's registration rolls. Following an evidentiary hearing, Supreme Court partially granted the petition, concluding, as relevant here, that the Lake Huntington voters were not residents of the Town for voting purposes. The Lake Huntington voters appeal.

Although a notice of appeal was promptly filed by the Lake Huntington voters following entry of Supreme Court's December 18, 2013 order, the appeal was not perfected until August 25, 2014 and no motion for a preference was made.
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The Board's determination upholding the voter registrations at issue constituted presumptive evidence of the Lake Huntington voters' residence for voting purposes; thus, petitioner was saddled with the weighty burden of proffering sufficient evidence to overcome that presumption (see Election Law § 5–104[2] ; Matter of Hosley v. Curry, 85 N.Y.2d 447, 452, 626 N.Y.S.2d 32, 649 N.E.2d 1176 [1995] ; Matter of Amedore v. Peterson, 102 A.D.3d 995, 998–999, 957 N.Y.S.2d 511 [2013], lv. denied 20 N.Y.3d 1006, 959 N.Y.S.2d 689, 983 N.E.2d 768 [2013] ; Matter of Dorman v. Scaringe, 245 A.D.2d 949, 950, 667 N.Y.S.2d 76 [1997], lv. denied 91 N.Y.2d 813, 674 N.Y.S.2d 278, 697 N.E.2d 179 [1998] ; Matter of Bressler v. Holt–Harris, 37 A.D.2d 898, 898, 330 N.Y.S.2d 565 [1971], affd. on op below 30 N.Y.2d 529, 330 N.Y.S.2d 379, 281 N.E.2d 176 [1972] ). The Election Law defines “residence” as “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 Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d 139, 146, 897 N.Y.S.2d 704, 924 N.E.2d 812 [2010] ; People v. O'Hara, 96 N.Y.2d 378, 384, 729 N.Y.S.2d 396, 754 N.E.2d 155 [2001] ). As the courts of this state have repeatedly explained, the Election Law “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 Isabella v. Hotaling, 207 A.D.2d 648, 650, 615 N.Y.S.2d 945 [1994], lv. denied 84 N.Y.2d 801, 617 N.Y.S.2d 135, 641 N.E.2d 156 [1994], quoting Matter of Ferguson v. McNab, 60 N.Y.2d 598, 600, 467 N.Y.S.2d 192, 454 N.E.2d 532 [1983] ; accord Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d 1088, 1089, 865 N.Y.S.2d 739 [2008] ). “The crucial [factor in the] determination [of] 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 N.Y.2d at 385, 729 N.Y.S.2d 396, 754 N.E.2d 155, quoting Matter of Gallagher v. Dinkins, 41 A.D.2d 946, 947, 343 N.Y.S.2d 960 [1973], affd. 32 N.Y.2d 839, 346 N.Y.S.2d 268, 299 N.E.2d 681 [1973] ; accord Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d at 1089–1090, 865 N.Y.S.2d 739 ; see Matter of Weiss v. Teachout, 120 A.D.3d 701, 702, 991 N.Y.S.2d 654 [2014] ; Matter of Stewart

v. Chautauqua County Bd. of Elections, 69 A.D.3d 1298, 1300, 894 N.Y.S.2d 249 [2010], affd. 14 N.Y.3d 139, 897 N.Y.S.2d 704, 924 N.E.2d 812 [2010] ).

Applying these principles to the Lake Huntington voters, we find that they are residents of the Town within the meaning of the Election Law. Each of the Lake Huntington voters has owned his or her cooperative home for nearly a decade, at the least, and several have resided there for more than 30 years. The cooperative community in which their homes are located is seasonal, operating from mid-May to mid–October of each year. While the water supply is shut off until the resumption of operations the following year, the homes remain accessible year-round. All of the Lake Huntington voters own or occupy another residence outside of Sullivan County, yet they each return to their Lake Huntington homes every year for extended stays from the spring through the fall. Further, each pays his or her proportionate share of local property and school taxes, as well as water and sewer fees. While none of the Lake Huntington voters has ever obtained employment within the Town, enrolled children in the Town's schools or utilized their Lake Huntington address on his or her driver's license, vehicle registrations or tax returns, and all were previously registered to vote outside of Sullivan County, the evidence presented at the hearing makes clear that “their ties to [the Town] were not a sham for voting purposes, but genuine, long-term contacts created out of a true desire to become part of the [Lake Huntington] community” (Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d at 1090, 865 N.Y.S.2d 739 ).

Two of the Lake Huntington voters provided testimony at the hearing that was stipulated to be representative of that of the remaining Lake Huntington voters. Respondent Peter Glick, who has owned his Lake Huntington residence since 1981, attested to his family's continuous use of the home during that time and expressed his intent to use this residence for the “indefinite future.” He explained that, during the five-month period from mid–May to mid–October, he and his family spend weekends, and at times a week or two, at his Lake Huntington home and otherwise try to “get up there whenever [they] can.” When his children were younger, Glick's wife and children would spend the entire summer there. Glick noted that his Lake Huntington residence remains furnished year round, as are those of other residents in the community, is adorned with family pictures and has been renovated and improved through the use of local contractors. Glick also detailed his active involvement in the Lake Huntington community as well as his contributions to several nonprofit organizations within the Town. Similarly, respondent Joan Enker testified that she has occupied her Lake Huntington home for approximately 35 years and that, during such time, it has been utilized by her children, extended family and friends. Enker explained that she goes “back and forth” between her Lake Huntington home and her home in New Jersey and, in recent years, she has been spending more time at the Lake Huntington home. Throughout the more than three decades that she and her husband have been shareholders at the cooperative, Enker has been involved in environmental groups in the community and has donated to local organizations. Like Glick, Enker testified that she and her family intend to remain at their Lake Huntington residence for the indefinite future.

In our view, these voters should not have been disenfranchised. The evidence established that the Lake Huntington voters have legitimate, significant and continuing attachments to the Town for the indefinite future such that they should be permitted to choose their Lake Huntington residence for voting purposes (see Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d at 1091, 865 N.Y.S.2d 739 ; Matter of Shafer v. Dorsey, 43 A.D.3d 621, 623, 840 N.Y.S.2d 843 [2007], lv. denied 9 N.Y.3d 804, 842 N.Y.S.2d 780, 874 N.E.2d 747 [2007] ; Matter of Bressler v. Holt–Harris, 37 A.D.2d at 898, 330 N.Y.S.2d 565 ; compare Matter of Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d at 147, 897 N.Y.S.2d 704, 924 N.E.2d 812 ; Matter of Bastone v. Cocco, 230 A.D.2d 950, 951, 647 N.Y.S.2d 43 [1996], appeal dismissed and lv. denied 88 N.Y.2d 971, 648 N.Y.S.2d 876, 671 N.E.2d 1273 [1996] ). Supreme Court's conclusion to the contrary came on the heels of its faulty perception that “the issue is where their permanent home is as opposed to a vacation home.” Proceeding under that framework, the court determined that the “fixed, permanent and principal home” of the Lake Huntington voters is not their home at the cooperative, which is only open seasonally, but rather their “year-round permanent home.” The term “residence,” however, has not been interpreted so restrictively as to “requir [e] a finding that the individual has more significant contacts to that place than any other” (Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d at 1089, 865 N.Y.S.2d 739 ). We take this opportunity to reiterate that “the inquiry is not which of [the Lake Huntington voters'] dual residences is ‘the more appropriate one’ for voting purposes, but whether the residence held by [them] is a legitimate one” (id. at 1091, 865 N.Y.S.2d 739, quoting People v. O'Hara, 96 N.Y.2d at 385, 729 N.Y.S.2d 396, 754 N.E.2d 155 ).Supreme Court's reliance on the motive behind the Lake Huntington voters' decision to change their voting residence also warrants discussion. While acknowledging that the Lake Huntington voters “may very well have shown that [they] all ... are residents of Lake Cochecton and they all have intent to return there, every year, and they all have significant ties to the Lake Cochecton community,” Supreme Court expressed concern that the conceded purpose for their change in voting residence was, in part, to attempt to express their political views on the issue of gas exploration within the community. Yet, “[m]otives are immaterial, except as they indicate intention” (Matter of Hosley v. Curry, 85 N.Y.2d at 452, 626 N.Y.S.2d 32, 649 N.E.2d 1176 [internal quotation marks and citation omitted]; accord Matter of Larkin v. Herbert, 185 A.D.2d 607, 608, 586 N.Y.S.2d 679 [1992] ). Simply put, the fact that one's position on a specific political issue may serve as a motivating factor to register to vote in a place where he or she has established a bona fide residence does not render such residence a “sham.”

On these facts, and absent an indication in the record that any of the Lake Huntington voters have attempted to “create an address solely for the purpose of circumventing residency requirements” (People v. O'Hara, 96 N.Y.2d at 385, 729 N.Y.S.2d 396, 754 N.E.2d 155 ; accord Matter of Willkie v. Delaware County Bd. of Elections, 55 A.D.3d at 1091, 865 N.Y.S.2d 739 ; see Matter of Shafer v. Dorsey, 43 A.D.3d at 623, 840 N.Y.S.2d 843 ; compare Matter of Hosley v. Curry, 207 A.D.2d 116, 119, 621 N.Y.S.2d 399 [1995], revd. on other grounds 85 N.Y.2d 447, 626 N.Y.S.2d 32, 649 N.E.2d 1176 [1995] ), we conclude that their Lake Huntington residences are, in fact, legitimate ones for voting purposes. Accordingly, Supreme Court erred in declaring the Lake Huntington voters' absentee ballots invalid and directing that their names be stricken from the registry of voters.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as partially granted the petition, invalidated the absentee ballots of respondents Rubin Braunstein, Carol Cherry, Aaron Cohen, Joan Enker, Warren Enker, Randy Frankel, Deborah Friedman, Peter Glick, Toby Glick, Scott Groom, Theodore Haber, Marla Kessler, Pat Konecky, Robert Putz, Marlene Star and Souzin Thau and directed that their names be stricken from the registry of voters; petition dismissed to that extent and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

EGAN JR., ROSE and LYNCH, JJ., concur.


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