        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

850
CAE 11-01615
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF LAURENCE F. ADAMCZYK,
AGGRIEVED CANDIDATE, PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RALPH M. MOHR AND DENNIS E. WARD, COMMISSIONERS,
CONSTITUTING THE ERIE COUNTY BOARD OF ELECTIONS,
RESPONDENTS-RESPONDENTS,
AND GREGORY B. OLMA, OBJECTOR,
RESPONDENT-APPELLANT.


MICHAEL KUZMA, BUFFALO, FOR RESPONDENT-APPELLANT.

LOVALLO & WILLIAMS, BUFFALO (TIMOTHY R. LOVALLO OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered August 11, 2011 in a proceeding pursuant to the
Election Law. The order granted the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
denied.

     Memorandum: Petitioner commenced this proceeding seeking an
order validating his designating petitions filed on July 13, 2011,
pursuant to which he sought to be placed on the Democratic Party and
Independence Party primary ballots as a candidate for district council
member from the Fillmore District of the Common Council of the City of
Buffalo. The record before us establishes that, as of November 30,
2010, petitioner moved from 232 Crescent Avenue, which is in the
Delaware Council District, to 567 Delaware Avenue, which was then in
the Ellicott Council District. On or about June 7, 2011, 567 Delaware
Avenue was reapportioned into the Fillmore Council District. The 2011
general election is scheduled for November 8, 2011.

     Pursuant to section 3-4 of the Charter of the City of Buffalo, a
person is eligible for election or appointment to the Common Council
as a district council member only if he or she has resided in the
district for which he or she is chosen for at least one year
immediately preceding the date of his or her election or appointment.
Here, objector-respondent Gregory B. Olma challenged petitioner’s
designating petitions on the ground that petitioner did not satisfy
the one-year residency requirement, and petitioner conceded at a
                                 -2-                           850
                                                         CAE 11-01615

hearing before respondent Commissioners of the Erie County Board of
Elections (hereafter, Board) that he had first moved to the present
Fillmore District on November 30, 2010. The Board sustained Olma’s
objections and invalidated the designating petitions, resulting in the
commencement of this proceeding by petitioner. In granting the
petition, Supreme Court determined that applying the residency
requirement to petitioner would violate his constitutional rights and
that the Board had exceeded its ministerial authority in invalidating
the designating petitions. We agree with Olma that the court erred in
granting the petition.

     First, we conclude that the residency requirement is supported by
a rational basis and is constitutional as applied to petitioner (see
Matter of Rivera v Erie County Bd. of Elections, 164 AD2d 976, lv
denied 76 NY2d 705; see generally Matter of Walsh v Katz, ___ NY3d
___, ___ [June 2, 2011]). The fact “[t]hat the [common] council
districts have been reapportioned this year provides no exemption from
the residence requirement” (Matter of Reid v Richards, 89 AD2d 939).

     Second, while the authority of the Board to determine the
validity of designating petitions is indeed strictly ministerial (see
Schwartz v Heffernan, 304 NY 474, 480; Matter of Lucariello v
Commissioners of Chautauqua County Bd. of Elections, 148 AD2d 1012,
1013, lv denied 73 NY2d 707), we nevertheless agree with Olma that the
Board’s invalidation of petitioner’s designating petitions in this
case was a ministerial act because it was based upon petitioner’s
concession of facts establishing his failure to satisfy the residency
requirement as a matter of law (see generally Matter of Wicksel v
Cohen, 262 NY 446, 449). Further, even assuming, arguendo, that the
Board exceeded its authority, we conclude that petitioner failed to
show that he satisfied the residency requirement and thus failed to
meet his burden of establishing the validity of his designating
petitions (see Matter of Goldstein v Carlsen, 59 AD2d 642, 643, affd
for the reasons stated 42 NY2d 993; Matter of Collins v Heffernan, 187
Misc 165, 166; see generally Matter of Schneeberg v New York State Bd.
of Elections, 51 NY2d 814; Matter of Mansfield v Epstein, 5 NY2d 70,
74).

     Finally, we note in any event that the reapportionment in fact
had no effect on petitioner’s eligibility to run for the Common
Council from his current address. Because his prior residence was in
the Delaware District, petitioner would have been ineligible to run
for the Common Council from his current address even if it were still
in the Ellicott District, because he had not resided there for more
than one year preceding the 2011 election.




Entered:   August 19, 2011                      Patricia L. Morgan
                                                Clerk of the Court
