Fernandez v. Monegro

Appellate Division of the Supreme Court of New York

Fernandez v. Monegro

10 A.D.3d 429, 780 N.Y.S.2d 741, 2004 N.Y. App. Div. LEXIS 10349

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 19, 2004

StatusPublished

Cited by18 cases

This text of 10 A.D.3d 429 (Fernandez v. Monegro) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fernandez v. Monegro, 10 A.D.3d 429, 780 N.Y.S.2d 741, 2004 N.Y. App. Div. LEXIS 10349 (N.Y. Ct. App. 2004).

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Opinion

In a proceeding pursuant to Election Law § 16-102 to invalidate a petition designating Abner O. Monegro as a candidate in a primary election to be held on September 14, 2004, for the Democratic Party position of Assembly District Leader (Male) for the 35th Assembly District, Part B, Abner O. Monegro appeals from a final order of the Supreme Court, Queens County (O’Donoghue, J.), dated August 11, 2004, which granted the petition and invalidated the designating petition.

Ordered that the final order is affirmed, without costs or disbursements.

The petitioners established, by clear and convincing evidence (see Matter of Camardi v Sinawski, 297 AD2d 357, 358 [2002]), that the appellant did not reside at the address listed as his residence on his designating petition (see Election Law § 6-132 [1]; [430]*430Matter of Eisenberg v Strasser, 100 NY2d 590, 591 [2003]). “As used in the Election Law, the term ‘residence’ is synonymous with ‘domicile’ ” (Matter of Markowitz v Gumbs, 122 AD2d 906, 907 [1986]). “The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent [to reside there], coupled with physical presence ‘without any aura of sham’ ” (People v O’Hara, 96 NY2d 378, 385 [2001], quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947 [1973]; see Election Law § 1-104 [22]).

The question of residence is a factual one, based on a variety of factors and circumstances (see Matter of Markowitz v Gumbs, supra at 907). Where there is conflicting testimony, the resolution of the conflict lies within the province of the trial court, as the finder of fact, and should not be disturbed on appeal unless “it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence” (id. at 907). Here, the evidence adduced at the trial supported the Supreme Court’s conclusion that the appellant did not reside at the address listed as his residence on his designating petition.

Accordingly, the Supreme Court properly granted the petition and invalidated the appellant’s designating petition (see Matter of Eisenberg v Strasser, supra; Matter of Markowitz v Gumbs, supra). Prudenti, P.J., Luciano, Schmidt and Adams, JJ., concur.

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In a proceeding pursuant to Election Law § 16-102 to invalidate a petition designating Abner O. Monegro as a candidate in a primary election to be held on September 14, 2004, for the Democratic Party position of Assembly District Leader (Male) for the 35th Assembly District, Part B, Abner O. Monegro appeals from a final order of the Supreme Court, Queens County (O’Donoghue, J.), dated August 11, 2004, which granted the petition and invalidated the designating petition.

Ordered that the final order is affirmed, without costs or disbursements.

The petitioners established, by clear and convincing evidence (see Matter of Camardi v Sinawski, 297 AD2d 357, 358 [2002]), that the appellant did not reside at the address listed as his residence on his designating petition (see Election Law § 6-132 [1]; [430]*430Matter of Eisenberg v Strasser, 100 NY2d 590, 591 [2003]). “As used in the Election Law, the term ‘residence’ is synonymous with ‘domicile’ ” (Matter of Markowitz v Gumbs, 122 AD2d 906, 907 [1986]). “The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent [to reside there], coupled with physical presence ‘without any aura of sham’ ” (People v O’Hara, 96 NY2d 378, 385 [2001], quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947 [1973]; see Election Law § 1-104 [22]).

The question of residence is a factual one, based on a variety of factors and circumstances (see Matter of Markowitz v Gumbs, supra at 907). Where there is conflicting testimony, the resolution of the conflict lies within the province of the trial court, as the finder of fact, and should not be disturbed on appeal unless “it is obvious that the court’s conclusion could not be reached under any fair interpretation of the evidence” (id. at 907). Here, the evidence adduced at the trial supported the Supreme Court’s conclusion that the appellant did not reside at the address listed as his residence on his designating petition.

Accordingly, the Supreme Court properly granted the petition and invalidated the appellant’s designating petition (see Matter of Eisenberg v Strasser, supra; Matter of Markowitz v Gumbs, supra). Prudenti, P.J., Luciano, Schmidt and Adams, JJ., concur.

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Bluebook (online)

10 A.D.3d 429, 780 N.Y.S.2d 741, 2004 N.Y. App. Div. LEXIS 10349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fernandez-v-monegro-nyappdiv-2004.

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