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RESPONDENT CANDIDATE FOR THE NYS ASSEMBLY DID NOT DEMONSTRATE HE MAINTAINED A RESIDENCE IN NEW YORK FOR FIVE YEARS; PETITIONERS’ APPLICATION TO INVALIDATE RESPONDENT’S CANDIDACY SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined respondent, a candidate for the NYS Assembly, did not establish he maintained a residence in New York for five years. Therefore the petitioners’ application to invalidate respondent’s candidacy should have been granted:

Petitioners brought this proceeding pursuant to Election Law § 16-102 to declare invalid the designating petitions naming respondent. Petitioners alleged that, because respondent lived continuously in Illinois from 2009 until 2016, he failed to satisfy the New York residency requirements of article III (§ 7) of the State Constitution. Section 7 provides: “No person shall serve as a member of the legislature unless he or she . . . has been a resident of the state of New York for five years” … . …

Petitioner presented evidence that, in April 2009, respondent left Germany and briefly relocated to Albany, New York, the home of his father and aunt. He visited there for approximately four months until August 2009, at which time he moved to Chicago, Illinois. Respondent took up residence … [in] Chicago, Illinois, from which he: obtained an Illinois driver’s license; registered to vote in the State of Illinois; enrolled in a graduate school program; obtained employment; paid Illinois state and Federal income taxes using the Chicago residence address; and obtained a cell phone with a Chicago area code.

We note that respondent’s having voted in Illinois during the five year period preceding the upcoming election is inconsistent with his claim to have maintained New York as his residence throughout that five year period … . While we have held that being registered to vote in another state, standing alone, is not necessarily dispositive … , in this case, respondent’s time in Illinois … does not support his argument that he “always intended to return” to New York as required by Election Law § 1-104 (22). Matter of Patch v Bobilin, 2020 NY Slip Op 05172, First Dept 9-29-20

 

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