[*1]
Matter of Shafer v Dorsey
2007 NY Slip Op 52562(U) [21 Misc 3d 1109(A)]
Decided on August 9, 2007
Supreme Court, Albany County
Devine, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 9, 2007
Supreme Court, Albany County


In the Matter of the Application of Howard A. Shafer, Objector and Candidate Aggrieved, and Susan E. Shafer, Objector, Petitioners,

against

Leo E. Dorsey, Jr., Candidate and the Albany County Board of Elections, Respondents.




6016-07



Thomas J. Spargo, Esq.

363 Joslyn School Road

East Berne, New York 12059

For the Petitioner Objector and Aggrieved Candidate

Justin O'C. Corcoran

Of O'Connor, O' Connor, Bresee & First, P.C.

20 Corporate Woods Blvd.

Albany, New York 12211

For the Respondent Candidate

Eugene P. Devine, J.



Petitioner has made an application, in a proceeding pursuant to Election Law § 16-102 for an Order declaring invalid the designating petition naming Leo E. Dorsey as the candidate for [*2]public office of Member, Albany County Legislature in the 36th Legislative District in Albany County in the September 18, 2007 Democratic and Independence Parties Primary Election. Petitioner also requests this Court restrain the respondent Albany County Board of Elections (Board) from placing Mr. Dorsey's name on the ballot in the Primary Election to be held on September 18, 2007 for both parties.

The petition was brought by Order to Show Cause returnable August 10, 2007. This Court, in an effort to expedite this matter requested the parties appear in Court on August 6, 2007. The parties did appear and were unable to conclude, due to witness unavailability, therefore the Court recessed the hearing on this matter to August 8, 2007.

The full hearing was conducted before this Court on August 8, 2007. The Court heard from four witnesses; Sgt. Scoons, respondent Dorsey, and petitioners Howard and Susan Shafer. The Court took into evidence twenty of petitioners' exhibits (numbered 1-20 consecutively), thirteen of respondent Board's exhibits (labeled A-M consecutively), and two of respondent Dorsey's exhibits (labeled A and B). As a group the witnesses appeared to be generally credible. Although three out of the four witness are a party to this action, and clearly interested in the outcome of this proceeding, their testimony was frank and candid and the Court credits most of their testimony. The Court has examined the physical exhibits entered into evidence by either stipulation or approval of this Court and finds it all worthy of consideration, but not of the same weight.

Before addressing the Findings of Fact, the Court must first address respondent Dorsey's assertion of August 6, 2007 that the petition and specifications of objections contained only conclusory statements and did not contain a cause of action upon which relief can be granted. Respondent renewed this objection at the continuation of the hearing held on August 8, 2007.Reference in the pleadings to the objections and specifications of objections filed with respondent Board, coupled with the general statements in the petition has been held to sufficiently apprise the respondent of the allegations being made against the designating petition.[FN1] The specification of objections filed with the Board, states:

"[t]he said Leo E. Dorsey, Jr., does not now have a bona fide residence at 296 Creble Road, Selkirk, New York or any other place within Albany County's 36th Legislative District and is therefore ineligible by virtue of the provisions of election Law Sections 6-132 and 1-104 to be a candidate for the public office Albany County Legislator, 36th Legislative District. Further, the said Leo E. Dorsey, Jr., has not had a bona fide residence within Albany County's 36th Legislative District for a period of one year prior to the date which he would assume the office of Albany County Legislator, 36th District (January 1, 2008) if he were to be elected as is required by the Albany County Charter, Section 202."[FN2]

It is clear to this Court that the respondent was sufficiently apprised of the challenge to his residence at 296 Creble Road. Petitioners' failure to name the alleged residence of respondent Dorsey (39 Peel Street) does not dilute the challenge. Respondent Doresey's ability to prepare a [*3]defense was not hindered, in that it was clear that the location and duration of his residence were at issue. Therefore this Court holds and determines that the pleadings were sufficient and the hearing held on residence and duration thereof was proper.

Based on the evidence adduced at the hearing, I make the following Findings of Fact:

FINDINGS OF FACT


Petitioner Howard Shafer is a candidate of the Democrat Party and Independence Party in the September 18, 2007 Primary Election for the office of Albany County Legislator from the 36th Legislative District.

Respondent Leo E. Dorsey, Jr. is a candidate of the Democrat Party and the Independence Party in the September 18, 2007 Primary Election for the office of Albany County Legislator from the 36th Legislative District.

The Albany County Board of Elections denied the general objections and specifications made by petitioner Shafer and thereby validated respondent Dorsey's designating petitions.

Respondent Leo E. Dorsey, Jr. registered to vote in March, 1976 from his then residence address at 39 Peel Street, Selkirk, New York, in the Town of Bethlehem, Albany County, New York and voted from that address continuously through the elections in 1994.[FN3]

Respondent Dorsey continued to be registered to vote at the 39 Peel Street address for the next 10 years through the elections held in 2004.[FN4]

On February 11, 2005, Respondent Dorsey newly registered to vote with the Albany County Board of Elections from 296 Creble Road, Selkirk, New York and indicated on the registration form that he would receive mail at 39 Peel Street, Selkirk, New York 12158.[FN5]

296 Creble Road is within the 36th Legislative District but is not within the Delmar Fire District, while the Peel Street address is within the fire district but not the legislative district. The boundary line of the 36th Legislative District runs up the middle of Peel Street so that 39 Peel Street looks out upon the homes across the street which are within the legislative district. Both the Creble Road and Peel Street addresses are located within the same Town and are a one or two mile drive from each other. The testimony shows that it takes five minutes to drive between the two homes and when standing on the boundary-line of Peel Street, one could not get much closer to the 36th Legislative District. [*4]

Ten months later on December 15, 2005, Respondent Dorsey changed his voting residence back to 39 Peel Street by re-registering to vote with the Albany County Board of Elections.[FN6]

Ten months after that on October 9, 2006 ( and more than one year prior to January 1, 2008), Respondent Dorsey changed his voting residence back to 296 Creble Road, Selkirk, New York, no changes in Dorsey's address have been filed since October 9, 2006, such that the voter address currently maintained by the Albany County Board of Elections for Dorsey remains 296 Creble Road.[FN7] The respondent was registered to vote from the Creble Road address for a period in excess of one year prior to the date in which he hopes to assume office.

Seven or eight years ago respondent Dorsey became active as a member of the Delmar Fire Department, and approximately three years ago, respondent Dorsey was elected to a five year term as one of five Commissioners of the Delmar Fire District.

Respondent Dorsey was very active during this entire period, on a daily basis, in his commitment to activities and work performed for the Fire Department and as a Commissioner of the District. Respondent Dorsey continues in the same manner to be very active in his work for the Department through the present time

The Delmar Fire District has geographic boundaries which include 39 Peel Street, Selkirk as part of the fire district, however, 296 Creble Road in Selkirk is outside the geographic boundaries of the Delmar Fire District. Residence within the fire district is required in order to be a commissioner.

At the Christmas/ Holiday Party hosted by the Fire Department in December, 2006, respondent Dorsey advised the petitioner's witness Commissioner Scoons, Chairman of the Board of Commissioners of the Fire District, that he intended to resign as a Commissioner because he no longer resided in the fire district.

There was an agreement to create and/or find a position that would allow respondent Dorsey to continue to be active in the Delmar Fire Department in some position other than as a Commissioner, but did not require him to reside in the fire district.

After a position that did not require his residing within the district was created, and at the May 9, 2007, meeting of the Board of Commissioners of the Delmar Fire District, respondent Dorsey submitted his letter of resignation.[FN8] At that same meeting respondent Dorsey was appointed Deputy Treasurer, a position that does not require residency within the geographic boundaries of [*5]the Delmar Fire District.[FN9]

During the period from June, 2006 through the meeting on May 9, 2007, respondent Dorsey attended all of the meetings of the Board of Commissioners of the Delmar Fire District and participated in the business conducted at such meetings.

Membership in the Delmar Fire District is not restricted to members who reside within the geographic boundary of the district, but instead is open to other members under some circumstances.

According to Delmar Fire District custom and practice, after a member has been admitted, if that member changes his address to one which is outside of the geographic boundaries of the district, the fire district takes no formal action so long as the member continues to participate in an acceptable fashion.

During all relevant times respondent Dorsey owned his house at 39 Peel Street together with his wife Barbara Dorsey.

In approximately 1993, respondent Dorsey bought the property at 296 Creble Road in Selkirk.

Respondent Dorsey has four children, Stephen who is building a house at 90 Creble Road just down the road from the compound at 296 Creble Road; Marc who lives on the first floor of 296 Creble Road; David who is in the Coast Guard serving his country in a special forces unit; and a daughter Heather who is working on her Masters Degree.

Shortly after purchasing 296 Creble Road respondent Dorsey's sons began to build a house and over the years thereafter, several other buildings were built on the property. These other buildings include a 60' x 100' Morton building that is used for storage and is rented on a month to month basis to two tenants. There is also a 40' x 48' open barn and a single detached garage.

Respondent Dorsey purchased Creble Road and made the aforementioned improvements on that property in contemplation of forming a "family compound" or "homestead" where immediate family members could reside together, under one roof.

The house was intended to be one homestead which had several separate dwelling units. This includes a two-bedroom dwelling unit on the first floor of the house which is now occupied by respondent Dorsey's son Marc. There is an apartment on the second floor of the house and a second apartment over the attached garage. All of these units are equipped with bedrooms, bathrooms, and kitchens.

The Creble Road property is completely furnished and has working utilities and telephone [*6]service.

The income generated by the Creble Road property defrays the cost of carrying charges on the property (e.g., mortgage, utilities, taxes, etc.).

Mrs. Dorsey in the 1990's had severe health issues including surviving cancer and undergoing back surgery. Respondent Dorsey's sons remodeled the house at 39 Peel to accommodate these physical restrictions of their mother's condition by adapting the garage area into a living/bedroom area, and adding a bathroom that could serve the renovated garage area.

Respondent Dorsey's daughter, Heather, moved into 39 Peel Street, which is a four-bedroom house, to help give care for her mother.

Mrs. Dorsey for the past thirty days has spent every night at the house at 39 Peel Street. Respondent Dorsey for the past thirty days has spent six to eight nights at 296 Creble Road.

Petitioner Shafer provided photographs showing Mr. Dorsey's truck in the driveway at the house at 39 Peel Street on five or six occasions over the last several weeks.

Respondent Dorsey helps pay some of the expenses at 296 Creble Road, including all of the mortgage payments. The utilities at 39 Peel Street are in respondent Dorsey's name and the utilities at 296 Creble Road are in Marc Dorsey's name.

Respondent Dorsey together with his wife and children celebrate many holidays at the compound at 296 Creble Road, to include birthdays, Mother's and Father's days, and other important holidays during the year.

Respondent Dorsey provides many routine aspects of property maintenance at 296 Creble Road to include mowing lawns, attending flower beds, plowing snow and painting, among other chores.

Respondent Dorsey presented his New York State Driver's License which shows his address as 296 Creble Road and was issued on March 9, 2005 (Resp. Exh. B).

Respondent Dorsey testified that his vehicle and his wife's vehicle are registered from their address at 39 Peel Street.

Respondent Dorsey applied for a STAR exemption for his property at 39 Peel Street in 1998. Upon turning 65, respondent Dorsey received an enhanced STAR exemption benefit for his property at 39 Peel Street.

On July 30, 2007, respondent Dorsey went to the Assessor's office in the Town of Bethlehem and applied for a STAR exemption for 296 Creble Road which he owns together with his wife, [*7]Barbara and his son, Marc.

Respondent Dorsey stated his desire and commenced his move to the homestead at 296 Creble Road, more than one year ago. His family also commenced their move to the compound, which will be completed as his daughter gets her Masters Degree and his son is discharged from the military. He stated that we will be staying there and all of the children the whole family are welcome. He stated also that they are gradually moving there.

Respondent Dorsey has an ownership interest in the real property on Peel Street, which is a single-family residence. Although Dorsey considered Peel Street to be his residence for some period of time, he decided to make Creble Road his permanent residence in 2006. At least as early as October 2006 when he changed his voter registration and then again in December 2006 when he began his discussion with the fire district and possibly as early as 2005 when he renewed his driver's license.

Respondent Dorsey testified that it is his intent to live at Creble Road for various reasons, including the fact that it offers a better atmosphere for the family to all gather together, because it has superior esthetic qualities, because it also includes income generating property and because it offers relatively more privacy than the property on Peel Street.

THE LAW

It is petitioner's burden to present clear and convincing evidence of respondent's residence, or fixed and permanent home.[FN10] The Election Law defines residence as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return."[FN11] According to People v. O'Hara, the definition of "residence" originates from traditional notions of domicile, and the determination of an individual's residence is dependent upon an individual's expressed intent and conduct.[FN12] "New York courts have recognized that in this modern and mobile society, an individual can maintain more than one bona fide residence,"[FN13] and crucial factors in determining if an individual is qualified to register to vote from a particular residence is whether he or she has manifest an intent to "adopt that residence as a permanent and principal home, coupled by his or her physical presence there, without an aura of sham.' "[FN14]

However, for the purposes of the Election Law, one cannot create an address solely for [*8]the purpose of circumventing residency requirements.[FN15] As the Court of Appeals explained in People v. O'Hara, an individual having two residences may choose one to which he has legitimate, significant, and continuing attachment as his residence for purposes of the Election Law.[FN16]

The Albany County Charter Section 202 provides:" ... All County Legislators shall be electors of the County and have been residents continuously in the County and the district represented for at least one year prior to taking office. Each County Legislator shall reside in the district from which that County Legislator seeks election at the time of nomination for office, and continue to be a resident of the County and of the district within the County which she represents for the entire term of her office, subject, however ..."[FN17]

CONCLUSIONS OF LAW

Petitioner bears the burden of proving, by clear and convincing evidence, that respondent Dorsey's Creble Road address does not constitute a residence, or if it does that it was not his residence prior to January 1, 2007, as defined by Election Law Section 1-104(22). This Court holds and determines that the petitioner failed to make a prima facie showing sufficient to cast into doubt Dorsey's Creble Road residence based upon the evidence adduced at the hearing. Not only did petitioner fail to meet its evidentiary burden but, petitioners' proof ( ie., Sgt. Scoons' testimony regarding the December 2006 conversation with the respondent, the respondent's voter registration card of October 2006, and the STAR exemption applications) tend to bolster respondent's position as to duration and residency.

Petitioner provided this Court with evidence regarding respondent Dorsey's involvement in the fire district. Petitioner's witness Sgt. Scoons testified that he became aware at the fire department's holiday party, in December 2006, that respondent Dorsey was moving outside the fire district, and therefore unable to continue as an elected commissioner. Although, respondent Dorsey's resignation was not finalized until May 2007, the fire district took his December 2006 statement of his relocation so seriously as to work with their attorney, to keep respondent Dorsey involved in the fire district, by creating a position he could hold, regardless of his residence. Petitioner's own witness revealed that in December 2006 respondent Dorsey intended 296 Creble Road to be his residence.

Petitioner's next presentment of proof involved respondent Dorsey's STAR tax exemption forms. Petitioner relies on the fact that respondent Dorsey did not change his residency for STAR purposes until July 2007. However, respondent Dorsey testified that he was called by the Town of Bethlehem in July to come in and fill out his STAR forms. The STAR forms may only be completed during the month of July. Respondent Dorsey, at this first opportunity since July 2006 to complete STAR forms, did in fact change his address to 296 Creble Road. [*9]

Petitioners also rely on the fact that respondent Dorsey's vehicles where not registered at 296 Creble Road. This Court notes, that no evidence was presented that these vehicles needed the registration renewed within the last year. The evidence shows that similar to the STAR exemptions, respondent Dorsey was not proactive in changing his address. The evidence merely shows that when the opportunity arose to change his residence (by the State sending a renewal application), respondent Dorsey may or may not have proceeded to list 296 Creble Road as his residence. It neither proves or disproves his residence.

Petitioner also relied on the voter registration cards of respondent Dorsey as an indicator of residence. Although respondent Dorsey's voter registration has changed a number of times in the last few years, he is currently, and has been since October 2006, registered to vote at 296 Creble Road.

Petitioners' attempt to demonstrate that respondent Dorsey maintained another residence at Peel Street is misplaced and petitioners' evidence concerning documents which list Peel Street as respondent Dorsey's address are insufficient to satisfy the burden of proof imposed upon petitioners.

This Court has been provided with respondent's drivers license issued in 2005 which lists his address as 296 Creble Road and with deeds revealing respondent Dorsey is an owner of the Creble Road property. Respondent Dorsey's drivers license, voter registration, STAR application for 2007 and his statements at the holiday party all reveal he is a resident of 296 Creble Street and it is his intention to make 296 Creble Road his permanent home.

Respondent Dorsey maintains a physical and financial connection with Creble Road and has expressed under oath his intention to make Creble Road his family's permanent home. Creble Road is not only his, but his entire family's home, which at least he, always hopes they will all return. Respondent Dorsey's past and present ownership of Creble Road, when combined with his physical presence there (including sleeping there occasionally and regularly maintaining the interior and exterior) alone are sufficient to satisfy the requirements of Election Law 1-104(22). However, the testimony concerning respondent Dorsey's conversations with Sgt. Scoons in December 2006 clearly demonstrates he established residency at Creble Road, outside the boundaries of the Delmar Fire District but within the 36th Legislative District. Based upon the uncontroverted proof of respondent Dorsey and Sgt. Scoons concerning his resignation due to change in residence, there is no doubt that respondent Dorsey considered Creble Road to be his address in December 2006.

Respondent argues that the local law purportedly imposing a durational residency requirement of one year on members of the Albany County Legislature is invalid for the reasons set forth in Campbell v. Tunny.[FN18] Based upon the facts, this Court need not address this legal argument as it is clear that respondent Dorsey was a resident of 296 Creble Road at least as early as December 2006 (and maybe even prior to October 2006), and he clearly meets the durational requirement of the Albany County Charter Section 202.

CONCLUSION

Based on the above Finding of Facts and Conclusions of Law, this Court holds and determines that petitioner has not met its burden and as such the petition to invalidate respondent [*10]Dorsey's designating petitions should be and the same is hereby dismissed. The determination of the respondent Board is upheld and as such they are not restrained to place the name of Leo E. Dorsey Jr., on the ballot for the primary election to be held on September 18, 2007 for both the Democratic and Independence party lines.

Those arguments not specifically addressed herein are found to be without merit.

This Memorandum shall constitute both the Decision and Order of the Court. This Original DECISION/ORDER is being sent to respondent's attorney. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR § 2220. Counsel for the respondent is not relieved from the applicable provisions of that section with respect to filing, entry and notice of entry.

SO ORDERED

ENTER

Dated:Albany, New York

August ____, 2007_____________________________________

EUGENE P. DEVINE, J.S.C.

cc: Thomas J. Spargo

Footnotes


Footnote 1: Mazza v. Albany County Board of Elections, 196 AD2d 679 (3d Dept. 1993)

Footnote 2: Verified Petition Exhibit A

Footnote 3: Respondent Board's Exhibit F.

Footnote 4: Respondent Board's Exhibits G, H, I.

Footnote 5: Respondent Board's Exhibit J.

Footnote 6: Respondent Board's Exhibit K.

Footnote 7: Respondent Board's Exhibit L and M.

Footnote 8: Petitioner's Exhibit 4.

Footnote 9: Petitioner's Exhibit 5A.

Footnote 10: Matter of Hosley v. Curry 85 NY2d 447, 452 (1995)

Footnote 11: New York Election Law §1-104(22).

Footnote 12: People v. O'Hara 96 NY2d 378, 400 (2001)

Footnote 13: Id.

Footnote 14: Thompson v. Karben 295 AD2d 438 ( 2d Dept. 2002) citing People v. O'Hara 96 NY2d 378; quoting Matter of Gallagher v. Dinkins 41 AD2d 946

Footnote 15:People v. O'Hara 96 NY2d 378, 385 (2001) other citations omitted

Footnote 16:Id.

Footnote 17: Albany County Charter (Local Law No. 8, 1993) available at

Footnote 18: 196 Misc 2d 860 (Albany Co. Sup. Ct. 2003)