SHORT FORM ORDER

INDEX NO.: 25663/2010

SUPREME COURT - STATE OF NEW YORK I . A . S. EART 2 SUFFOLK COUNTY

Present:

BOIl· tlOBB C;. InPJIA JUstice

-----------------------------------x

In the Matter of the Application of

ELY V. CHAIMOWITZ, MARY MAGNIPICO, and MARIA RE-KILHARTIN, Citizen Objectors,

Petitioners,

- against -

REGINA H. CALCATERRA, a candidate seeking the public office of State Senator, First Senate District, County of Suffolk, State of New York, as a designee of the Democratic Party and the Working Families Party, and

ANITA S. KATZ and CATHY L. RICHTER GEIER, as Commissioners of and constituting the Suffolk County Board of Elections,

Respondents.

-----------------------------------x

Petitioners seek the following relief;

PLTF'S/pET'S ATTY:

LII'VBlft'IIAL MID SLIDY, LLP 15 Remsen Avenue

Roslyn, N.Y. 11576

DEFT'S/RESP'S ATTY:

SftOOClt • 8'J'ROOC:K a LAVAII LLP

180 Maiden Lane

New York, N.Y. 10038

GA%L _. LOL%S, BSQ. Oeputy County Attorney H. Lee Dennison Building 6th Floor

100 Vets. Memorial Highway PO Box 6100

Hauppauge, N.Y. 11788

1. Invalidating and declaring null and void the Democratic Party and Working Families Party designating petitions of the respondent-candidate for the public office of State Senator, First Senate District. County of Suffolk. State of New York;

2. Enjoining and restra.injng the Commissioners of the Suffolk County Board of Elections from placing the respondent·candidate's name upon the official ballots in the primary election to be beld on September 14. 2010.

Re: In the Matter of the Application of Ely V. Chaimowitz, et a1

v, Regina M. Calcaterra Page 2

Petitioners, voters registered to vote for the public office of State Senator, First Senate District, County of Suffolk, State of New York, filed written Objections with the Suffolk County Board of Elections objecting to the petitions designating respondent, Regina M. Calcaterra (the "respondent candidate"), as a candidate of the Democratic and Working Families Parties for the public office of State Senator, First Senate District, County of Suffolk, State of New York.

Respondents, ANITA S. KATZ and CATHY L. RICHTER GEIER, were and are Commissioners of the Suffolk County Board of Elections, and constitute the Board of Elections of the County of Suffolk in the State of New York.

On or about July 27, 2010, petitioners commenced the within proceeding by Order to Show Cause. Petitioners were ordered to serve the within Order to Show Cause and Verified Petition personally upon respondent on or before July 29, 2010, the date on which the relevant statute of limitations expired. On July 29,2010, in an ex parte application, Justice Covello of the Appellate Division of the Supreme Court, Second Department modified the Order to Show Cause, and ordered that "nail and mail" service may be effected on or before July 29th•

Respondents served a Verified Answer in tbe instant proceeding, interposing several affirmative defenses, including that petitioners lacked standing in that the aforesaid Objections were not bona fide Objections within the meaning of the Rules of the Suffolk County Board of Elections or the law, and, therefore, petitioners had failed to satisfy a condition precedent to cornmence the within proceeding.

Petitioners further argued that service was not proper in that mailing on the date the statute of limitations expires is not lawful or proper because a Court cannot extend a statute of limitation by including impermissible types of service in an order. It is petitioners' contention th.at the requirement of "due diligence" was also not asked to be waived by petitioners. and it was not superseded or stricken by the Court. Accordingly, "nail and mail" service without a showing of due diligence should not be deemed proper service .

. Finally, on the merits, respondent-candidate also argues that petitioners have failed to reach their "heightened burden" by clear and convincing proof that respondentcandidate has not maintained her New York residency throughout the relevant period of time.

Petitioners claim that the respondent candidate's Democratic and Working

Re: In the Matter of the Application of Ely V. Chaimowitz, et al

v. Regina M. Calcaterra Page 3

Families Party designating petitions are defective for the following reasons:

a) The respondent-candidate fails to meet the constitutional qualifications for the public office of State Senator, First Senate District, County Suffolk, State of New York by reason of her failure to reside in the State of New York for a period of five years immediately preceding the genera} election scheduled to take place on November 2,2010;

b) The respondent-candidate fails to meet the statutory qualifications for the public office of State Senator, First Senate District, County of Suffolk, State of New York by reason of her failure to meet the constitutional qualifications for such public office (see. N.Y. Election Law 16-122);

c) The respondent-candidate knew or should have known of her failure to meet the constitutional and statutory qualifications for the public office of State Senator, First Senate District, County of Suffolk, State of New York by reason of her failure to reside in the State of New York for a period of five years immediately preceding the general election scheduled to take place on November 2,2010; and d) The designation petition is permeated with fraud.

A hearing was held on August 3, concluding on August 4,2010. Respondent placed one (1) document in evidence and there were twenty-four (24) documents placed into evidence as joint exhibits. The Court received respondent's Pre Trial Memorandum of Law. The Court also received by facsimile the petitioners' Post-Trial Memorandum of Law and the respondent-candidate's Post-Trial Memorandum of Law.

Petitioner, Ely V. Chaimowitz, did Dot file Objections. As such, counsel for petitioners voluntarily withdrew that particular claim, without objection from opposing counsel.

The respondent's counsel called the process server, Victor Veleny, as a witness on the issue lack of proper service. Respondent-candidate, Regina M. Calcaterra, testified. Petitioners did not cross-examine tberespondent-candidate.

Counsel for both parties presented two stipulated facts, namely that respondent, Ms. Calcaterra, was admitted to the New York Bar in 1997 and that she was admitted to the Pennsylvania Bar in 2004. The second stipulated fact was that Ms. Calcaterra joined the Philadelphia office of the Law .Firm of Barrack, Rodos & Bacine in 2004. There was only a Philadelphia Office. and no New York office.

Rc: In the Matter of the Application of Ely V. Chairnowitz, et al

v. Regina M. Calcaterra Page 4

STANDING

According to respondent-candidates' s counsel, petitioners lack standing because they failed to serve and file proper Specifications of Objections. It is argued that petitioners violated Suffolk County Board of Election Designating and Nominating Petition Guidelines and Requirements which provide that: "Objectors are warned not to include in their specifications ... claims which are not supported by documents filed with the Board. The Board may dismiss the objections in their entirety as frivolous if specifications include such claims." The candidate contends that the petitioners' Objections are "not supported by documents filed with the Board" and therefore. should be declared a nullity. The Board of Elections did not dismiss the Objections and counsel urged this Court to dismiss ab initio those specifications.

Although counsel explains that there is ample case law supporting the conclusion that the declaration of Objections is a nullity. conspicuously absent are any cases supporting this affirmative defense. The Board of Elections accepted the Objections and this Court finds no legal authority supporting dismissal.

SERVICE

Election Law 116-102 provides that: "A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or within three business days after the office or board with whom or which such petition was filed makes a determination of invalidity with respect to such petition, whichever is later ... "

TIle process server, Victor Veleny, testified that he attempted to personally serve the candidate on July 27,20) 0 from approximately 6:00 p.m, until approximately 10: 15 p.m., to 0.0 avail. He left at 10:15 p.m. after the neighbors had called the police.

The following day. July 29. 2010, the petitioners' counsel appeared before Appellate Division, Second Department, Associate Justice Covello. After consideration of counsel's papers, including the affidavit of the process server, the ex parte application for substituted service was granted, modifying the Temporary Restraining Order of personal service pursuant to CPLR 1308 (1) and permitting "nail and mail", service using express mail rather than personal delivery. Respondents were duly served by "nail and mail" using express mail.

Counsel for the respondent-candidate argues that service was improper because the

Re: In the Matter of the Application of Ely V. Chairnowitz, et al

v. Regina M. Calcaterra Page 5

law provides that the mailing OD the last day of the statute of limitations did not meet the requirement of the Election Law, citing Kapliln v. Bueha, 207 A.D.2d 509, 615 N.Y.S.2d 933 (2"d Dept., 1994). Mailing must be effectuated prior to the expiration of the statute of limitations, which in the instant case is July 29, 2010 and the Court may not extend the statute of limitations, Kurth v. Orange County Board 0/ Elections, 65 A.D:3d 642, 883 N.Y.S.2d 908 (2nd Dept., 2009).

Nevertheless, pursuant to Marcoccitlll. Garfinkle, 307 A.D.2d 1010, 732 N.Y.S.2d 506 (2nd Dept., 2003) mail service on the last day of the statute of limitations was deemed proper, provided said service was mandated in the order to show cause and complied with, so as to sa~sfy the requirement of Election Law 116.102(2). Counsel for respondentcandidate distinguishes the finding in Marccocitl v. Garfinkle, supra, because it was applicable to a petition seeking to validate, rather than the instant petition seeking to invalidate. The Court finds counsel's argument flawed because the central issue in both cases is mail service on the last day of the expiration of the statute of limitations, which appears now permitted by case law provided said service is authorized by Court order, as is the case herein.

Finally. counsel for respondent-candidate urges the Court to dismiss based on improper service in that petitioners did not satisfy the due diligence test prior to seeking alternate service as required by ePLR 1308(4), citing Hennessey v. DiCll1'lo, 21 A.D.2d 505, 800 N.Y.S.2d 576 (2nd Dept., 200S) . This Court finds that service was proper as directed by Justice Covello. Justice Covello considered all the facts of the case and directed an alternate form of service in accordance with CPLR §308(5) and case law.

CONSTITUTIONAL and STATUTORY RESIDENTIAL REOUIREMENT

Article III, §7 of the New York State Constitution provides that a candidate for the State Senate must be a resident of the State of New York for five years, stating:

"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 ... of the assembly or senate district for. the twelve months immediately preceding his or her election ... "

The provision requiring a candidate for the Legislature to have "been a resident of the State of New York for five years ... immediately preceding his or her election ... " has been interpreted to mean that the candidate must have been a resident for five continuous years prior to election day so as to ensure "familiarity and involvement with the issues facing the

Rc: In the Matter of the Application of Ely V. Chairnowitz, et al

v. Regina M. Calcaterra Page 6

state". Bourges 1I. LeBlanc, 98 N.Y.2d 41.8, 748 N.Y.S.2d 347 (2002).

Petitioners' burden is to prove by clear and convincing evidence the candidate's failure to meet the residency requirement. See, Johnson v. Simpson, 43 A.D.3d 478; 840 N.Y.S.2d.543 (2nd. Dept., 2007). The determination of residence depends upon expressed intent and conduct. See, Thompson v.Karben,295A.D.2d478, 743N.Y.S.2d 175 (2nd Dept., 2002).

"The crucial determinatio.n whether a particular residence complies with the requirements of the New York Election Law is that the individual must manifest an intent, coupled with physical presence • without any aura of sham' (cit.om.), As this Court has stated. an individual having two residences may choose one to which she has 'legitimate, significant and continuing attachments as her residence for purposes of the Election Law' (cit.om.). Generally, where there is no reason to assume that a residence has been asserted merely for the purposes of voting, where no fraud or deception has been practiced and where there is a history of the residence employed, the courts have upheld a fact-finder's determination of residency (cit.om.).", People v. O'Hara, 96 N.Y.2d 378; 729 N.Y.S.2d.396 (2nd Dept., 2001).

In. his book Goldfeder's Modern Election Law by Jerry H. Goldfeder the author expands on the residency requirement in Chapter 2 at pp.5 and 6 stating:

Although the constitutional and statutory authorities are clear as to how long an elected official must reside in the state or locality in order to run. or serve, the good news and bad news is there is no bd,llt line test for residency. The Election Law is general, and the "standard .. f01.' .-esidence is factdri veu. Electi on Law § 1-1 04(22) defines • 'residence" as the "place where a person maintai ns a fixed permanent and principal home and to which [sJhe, wherever: temporarily located, always intends to return. A candidate can, therefore, satisfy this test in a variety of ways: by filing taxes from the subject address; by establishing service with a telephone and a utility company; by signing a lease for, or mortgage or deed to, the peopeny: by maintaining personal effects in the residence, such as cloches. furniture. dishes and the like; by re~st.erin.g a car or other vehicle from that home; by using a local dry cleaners or laundry, and regularly buying groceries from the local market; by demonstTating familiarity with the ncjghborhood; by sleeping there with a modicum ot frequency: and. of course. by registering to vote from the domicile. While none of these indicia is talismanic. each act by the candidate, and all of her conduct taken together, constitutes evidence as to whetbe~ the residence is fixed and permanent. to which the candidate intends always to return.

The law of the State of New York allows "constructive residence" to satisfy the requirement, resulting from a person's intent to remain a citizen of New York, Meehan v. Lomenz.o, 63 Misc.2d 490, 312 N.Y .S.2d 500 (Sup.Ct., Albany Cty., 1970) aff d 34 A.D .2d 1024, 311 N. Y.S.2d 65 (2nd Dept., 1970). As long as a candidate has some connection to the

Re: In the Marter of the Application of Ely V. Chaimowitz, et a1

v. Regina M. Calcaterra Page 7

State previously and currently, and intends to consider himself or herself a New York resident during the five year period. that candidate may be deemed to have a "constructive residence" in the State of New York for the purposes of the constitutional requirement. To determine intent, the Court can examine documentary evidence such as lease agreements, title to property, voting records. income taxes filed, etc., Meehan v. Lomen1.O, supra. In Thompson v. Hayduk, 45 A.D.2d 955; 359 N.Y.S.2d.72 (2Dd Dept., 1974) the Court found that a candidate could not be deemed a resident of a county when he registered and voted in a different county.

The respondent-candidate's counsel argues that petitioners cannot prove that Ms.

Calcaterra abandoned any residential connection with New York. Counsel elicited testimony from the respondent-candidate as to her difficult upbringing in various foster homes, her family ties and her vast political volunteer work, all occurring in the State of New York. Ms. Calcaterra was born and raised in New York. She has lived in various apartments/condominiums in the State of New York. Her closest relatives-her sister, brotherin-law, nephews and nieces-live in New York. She was admitted to the bar of the State of New York and continuously maintained her registration as a member of the New York Bar. She has enrolled in CLE courses to maintain her New York law license. It is undisputed that she has worked and practiced law in New York, including representing New York pension funds.

In 2004 the respondent-candidate began working for the Pennsylvania Law Firm of Barrack, Rodos and Bacine, where according to her testimony she was the New York attorney on the litigating team representing the N.Y. State Common Retirement Fund as plaintiff in a global class action against World-Com in the Southern District of New York. Ms. Calcaterra was also employed to assist client development because of her past dealings with the N. Y. State Comptroller. At that time, up until the summer of 2004, Ms. Calcaterra lived in the Bronx in. a condominiums owned by the candidate and her husband.

Thereafter. in 2004 Ms. Calcaterra moved to New Hope, Pennsylvania, purchasing a home with her husband there. She explained that she had chosen that specific Pennsylvania location because it was equi-distant from New York City and Philadelphia, thereby enabling her to have access to New York Courts and clients, all the while being able to meet with the legal team and review the documents located in Philadelphia. In March of 2005, Ms. Calcaterra was working fOT the Pennsylvania law firm in Manhattan where the litigation attorneys would congregate in the "war room". In April or May of 2005, the case settled.

There was evidence that Ms. Calcaterra executed a Sub-Lease Agreement for the term of May 15. 2006 until August 31,2006 for an apartment located at 315 West 33rd Street,

Re: In the Matter of the Application of Ely V. Chairnowitz, et al

v. Regina M. Calcaterra Page 8

New York, New York (Exhibit "18") and a lease Agreement for the term of September 1, 2006 until August 31, 2007 for an apartment located at 314 West 81" Street. The marital residence in New Hope, Pennsylvania was sold in June of 2006. In January of 2007 Ms. Calcaterra purchased a home in New Suffollc, New York.

During the past five (5) years the candidate often visited her sister and sister's family in Farmingville, Suffolk County. New York. once or twice a month, where she also kept possessions and clothes. Ms. Calcaterra also testified that she saw a therapist in Manhattan from April of 2004 until August of 2006.

In the summer of 2004 Ms. Calcaterra surrendered her N. Y. driver's license, obtained a Pennsylvania driver's license and registered to vote in Pennsylvania Beginning i.n 2005 and continuing thereafter, she filed a joint tax return with her husband, listing her horne address as the Pennsylvania home. She also filed a New York non-resident/part-time resident return for that year. According to the tax return approximately thirteen (13) percent of her salary with the law finn was allocated as New York income.

The evidence shows that on August 9. 2004 Ms. Calcaterra registered to vote in Pennsylvania. She actually voted in Pennsylvania four times: on November 2, 2004 in a general election; on May 17, 2005 in the primary election; on November 8, 2005 in the municipal election and on May 16,2006 she voted in Pennsylvania for the general primary election. Ms. Calcaterra divorced in 2006. She was the plaintiff in that matrimonial action. Counsel for petitioners stated that she filed that action in Pennsylvania. listing her Pennsylvania address for purposes of jurisdiction and venue, and there was no contrary evidence to her designation of Pennsylvania as her address for jurisdictional purposes.

It is clear that the candidate has in the past and presently pays taxes in the State of New York. In the past the candidate was and is presently registered to vote in New York; in the past the candidate had and she now has a drivers' license from New York. It is respondent's contention that throughout the time while she maintained a New Hope, Pennsylvania residence, she continued to maintain a New York residence, intending New York to be her actual domicile. She maintained throughout her testimon y that New York was her permanent home - her permanent residence. Counsel for Ms. Calcaterra further argues that in all respects, the facts of the instant proceeding are wholly distinguishable from Bourges, where the candidate there lived for a dozen years across the continent in California, with no record of any connection to New York.

The concern of the Court is whether indeed Ms. Calcaterra maintained a residence in New York from November of 2005 until May of 2006. She explained that she would often

Re: In the Matter of the Application of Ely V. Chaimowitz, et a1

v. Regina M. Calcaterra Page 9

stay with a friend in New York City or in an apartment leased by her law firm. Based upon. her conduct of surrendering her New York driver's license, voting in Pennsylvania, maintaining her bank account in Pennsylvania, obtaining her divorce in Pennsylvania, filing income taxes in Pennsylvania (listing herself as a non-resident of New York) it is this Court's reluctant opinion th.at for the period from November of 2005 until May of 2006 the candidate was not a New York resident and therefore, she has not met the constitutional requirement of a five (5) year continuous residency.

Finally, this Court expressly and vehemently rejects the petitioners' claim that Ms.

Calcaterra perpetrated a "fraud" on the Pennsylvania Court when the candidate sought her divorce in Pennsylvania. Furthermore, there was absolutely not one scintilla of evidence that Ms. Calcaterra's attempt to be a candidate for the New York State Senate was a "sham" as stated by petitioners' counsel. Such shameful allegations leveled against a courageous, impressive, successful woman who overcame so many adversities are totally unwarranted and ignoble, serving only to discredit petitioners and the election process. Perhaps, as William Cullen Bryant stated: "Difficulty is a nurse of greatness."

TIle foregoing constitutes the Order of this Court.

DATED: August 9. 2010

HON. JOHN C. BIVONA l.S.C.

Sign up to vote on this title
UsefulNot useful