SHORT FORM ORDER SUPREME COURT INDEX NO. :_25663/2010 STATE OF NEW YORK —_—L.A.S. PART 2 SUFFOLK COUNTY Present: ‘HOH. JOHN C. BIVOMR Justice aac ee nee en nen nen eens nee nn een k In the Matter of the Application of ELY V. CHAIMOWITZ, MARY MAGNIPICO, and MARIA RE~KILMARTIN, Citizen: objectors, Petitioners, ~ against - REGINA M. 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 Paxty 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. Petitioners seek the following relief: PLIF'S/PET'S ATTY: LEVENTHAL AND SLINEY, LLP 15 Remsen Avenue Roslyn, N.¥. 11576 DEFT’S/RESP'S ATTY: STROOCK & STROOCK & LAVAM LLP 180 Maiden Lane New York, N.¥. 10038 GAIL M, COLTS, ESQ. Deputy County Attorney H. Lee Dennison Building 6 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 restraining 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 held on September 14, 2010.Re: Inthe Matter of the Application of Ely V. Chaimowitz, ¢t al 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 Cavello of the Appellate Division of the Supreme Court, Second Department modified the Order to Show Cause, and ordered that “ail and mail” service may be effected on of before July 29°. Respondents scrved a Verified Answer in the 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 commence the within proceeding. Petitioners further argued that service was not proper ia chat 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. itis petitioners’ contention that 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, “pail 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 respondent- candidate 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: 8) The respondent-randidate 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 general 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 §6-122); ©) The respondent-candidate knew or should have known of her failure to meet che 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 4) The designation petition is permeated with frand. 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 not 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 the respondent-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.Re: In the Matter of the Application of Ely V. Chaimowitz, et al v. Regina M, Calcaterra Page 4 STANDING According torespondent-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 wamed 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 auility. 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 §16-102 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...” ‘The process server, Victor Veleny, testified that he attempted to personally serve the candidate on July 27, 2010 from approximately 6:00 p.in. until approximately 10:15 p.m,,to ‘no 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 pursuantto CPLR §308 (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: Inthe Matter of the Application of Ely V. Chaimowitz, et al v, Regina M, Calcaterra Page 5 law provides that the mailing on the last day of the statute of limitations did not mect the requirement of the Election Law, citing Kaplan v. Bucha, 207 A.D.24 509, 615N.Y.S.2d 933 (2™ 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, Xurth v. Orange County Board of Elections, 65 A.D:3d 642, 883 N.Y.S.2d 908 (2 Dept, 2009), Nevertheless, pursuant to Marcoceia v. Garfinkle, 307 A.D.2d 1010, 732 N.Y S.2d 506 (2" Dept., 2003) mail service on the last day of the statwte of limitations was deemed proper, provided said service was mandated in the order to show cause and complied with, $0 as 10 satisfy the requirement of Election Law §16-102(2). Counsel for respondent- candidate distinguishes the finding in Marccocia ». Garfinkle, supra, because it was applicable to a petition seeking to validate, rather than the instant petition secking 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 Dow permitted by case iaw 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 (est priot to seeking alternate service as required by CPLR §308(4), citing Hennessey v. DiCarlo, 21 A.D.24 505, 800 N.¥.S.2d 576 (2™ Dept., 2005) . 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. Article IIL, §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 meraber of the legislature unless he or she is 0 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 aresident 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:Re: in the Matter of the Application of Ely V. Chaimowitz, etal v. Regina M. Calcaterra Page 6 state”. Bourges v. LeBlanc, 98 N.Y.2d 418, 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 (2" Dept., 2007). The determination of residence depends upon expressed intent and conduct. See, Thompson v. Karben, 295 A.D.24478, 743 N.Y 8.24 175 (2™ Dept, 2002) “The crucial determination 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 Courthas 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.24 378; 729 N.Y.S.24.396 (2™ Dept., 2001). Ta 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 bow long an elected official must reside im the state of locality in order to run or serve, the good news and bad news is there is no bright line test for residency. The Election Law is general, and the “standard” for residence is fact- dtiven, Election Law §{-104(22) defines "residence" as the “place where a person maintains a fixed: permanent and principal home and to which {s]he, Wherever temporarily located, always intends to return. A candidate can, therefore satisfy this test ia 2 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 property; by maintaining personal effects in the residence, such 2¢ clothes, furniture, dishes and the like; by registering & car or ocher vehicle from that home; by using 8 Joca) dry cleaners or lavadry, and regularly buying groceries from the local market; by demonstrating familiarity withthe neighborhood; by sleeping there with a modicum of 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 whether the residence is fixed and permanent, to which the candidate intends always to setur. 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. Lomenzo, 63 Misc.24 490, 312 N.Y.S.24 500 (Sup.Ct., Albany Cly,, 1970) aff'd 34 A.D.2d 1024, 311 N.Y.S.2d 65 (2 Dept., 1970). As long asa candidate has some connection to theRe: In the Matter of the Application of Ely V. Chaimowitz, et al ¥. 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 {ease agreements, title to property, voting records, income taxes filed, etc., Meehan v. Lomenzo, supra. In Thompson v. Hayduk, 45 A.D.2d 955; 359 N.Y.S.24.72 (2™ Dept., 1974) the Court found that a candidate could not be deemed a resident of a county when he registered and voted in 2 different county. The respondent-candidate'’s counsel argues that petitioners cannot prove that Ms. Calcaterra abandoned any residectial connection with New York. Counseleficited 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 bom and raised in New York, She has lived in various apartments/condominiums in the State of New York. Her closest relatives-her sister, brother- in-law, nephews and nieces-five 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. itis 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 Barack, 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 developraent because of her past dealings with the N.Y. State Comptroller, At that time, up tntil 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 ahome 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 for the Pennsylvania faw 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 33” Street,Re: In the Matter of the Application of Ely V. Chaimowitz, et a) 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, Peansylvania was sold in June of 2006. In January of 2007 Ms. Calcaterra purchased a home in New Suffolk, 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 of 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 Pennsylvania driver's license and registered to vote in Pennsylvania. Beginning in 2005 and continuing thereafter, she filed a joint tax return with her husband, listing her horue address as the Pennsylvania home. She also filed a New York non-resident/part-time resident retura for that year. According to the tax return approximately thirteen (13) percent of her salary with the law firm 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 ¢lection; 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 lection. Ms. Calcaterra divorced in 2006. She was the plaintiff in that matrimonial action Counsel for petitioners stated thar 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 ber address for jurisdictional purposes. Itis 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 throvghout the time while she maintained a New Hope, Pennsylvania residence, she continued to maintain a New York residence, intending New York tobe her actual domicile. She maintained throughout her testimony that New York was her permanent home - her permanent residence. Counsel for Ms. Calcaterra further argues hat in all respects, the facts of the instant proceeding are whoily distinguishable from Bourges, where the candidate there lived for adozen years across the continent in California, with 20 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, etal v. Regina M. Calcatesra Page 9 stay with a friend in New York City or in an apartment teased 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 Pennsyivania (listing herself as a non-resident of New York) itis this Court's reluctant opinion that for the period from November of 2005 uati! May of 2006 the candidate was not a New York resident and therefore, she has not ret 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. Caleaterra’s attempt to be 2 candidate for the New York State Senate was a “sharn’’ 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.” ‘The foregoing constitutes the Order of this Court. DATED: August 9.2010 HON. JOHN C. BIVONA JSC