                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: August 18, 2016                   523489
________________________________

In the Matter of STEVEN
   GLICKMAN,
                    Appellant-
                    Respondent,
      v

ZACKARY LAFFIN et al.,
                    Respondents-
                    Appellants,
                    et al.,
                    Respondents.

(Proceeding No. 1.)

(And Another Related Proceeding.)           MEMORANDUM AND ORDER


In the Matter of ZACKARY
   LAFFIN et al.,
                    Respondents-
                    Appellants,
      v

STEVEN GLICKMAN,
                      Appellant-
                      Respondent,
                      et al.,
                      Respondents.

(Proceeding No. 3.)
________________________________


Calendar Date:   August 18, 2016

Before:   Garry, J.P., Egan Jr., Devine, Mulvey and Aarons, JJ.

                             __________


      Pheterson Spatorico Neilans LLP, Rochester (Kamran Hashmi
of counsel), for appellant-respondent.
                              -2-                523489

      Sinnreich Kosakoff & Messina, LLP, Central Islip (John
Ciampoli of counsel), for respondents-appellants.

                           __________


Aarons, J.

      Cross appeal from an order of the Supreme Court (Hartman,
J.), entered August 10, 2016 in Albany County, which, among other
things, granted petitioners' application, in proceeding No. 3
pursuant to Election Law § 16-102, to declare invalid the
designating petitions naming Steven Glickman as the Democratic
Party and Working Families Party candidate for the public office
of State Senator for the 55th Senate District in the September
13, 2016 primary election.

      Steven Glickman filed designating petitions with respondent
New York State Board of Elections naming him as the Democratic
Party and Working Families Party candidate for the public office
of State Senator for the 55th Senate District in the September
13, 2016 primary election. Zackary Laffin, Silvio Palermo and
John D. Moffit Jr. (hereinafter collectively referred to as
objectors) filed written objections with the State Board
challenging, as is relevant here, the validity of the designating
petitions, claiming that Glickman failed to meet the mandated
residency requirements of the NY Constitution in that he has not
resided continuously in New York for five consecutive years nor
in the Senate District for one year immediately preceding the
election. Glickman commenced proceeding No. 1 and proceeding No.
2 seeking an order validating his designating petitions for the
office at issue for the Democratic Party and Working Families
Party, respectively. Thereafter, objectors commenced proceeding
No. 3 seeking to invalidate the subject designating petitions and
enjoining the State Board from placing Glickman's name on the
ballot for the September 13, 2016 primary election.

      Following a hearing on all three petitions, Supreme Court,
among other things, granted objectors' application to invalidate
the designating petitions, finding that, although Glickman met
the one-year residency requirement, the fact that Glickman
registered to vote in Washington, D.C. in 2014 precluded him, as
a matter of law, from establishing the requisite five-year
continuous residency in New York. Glickman appeals and objectors
                              -3-                523489

cross appeal.1

      NY Constitution, article III, § 7 provides, in relevant
part: "No person shall serve as a member of the legislature
unless he or she is a citizen of the United States and has been a
resident of the state of New York for five years, and, except as
hereinafter otherwise prescribed, of the assembly or senate
district for the [12] months immediately preceding his or her
election." Election Law § 1-104 (22) defines residence as "that
place where a person maintains a fixed, permanent and principal
home and to which he [or she], wherever temporarily located,
always intends to return." It is well recognized that an
individual can maintain more than one residence, but can choose
only one for Election Law purposes (see People v O'Hara, 96 NY2d
378, 384 [2001]).

      "The question of residence is a factual one, based on a
variety of factors and circumstances" (Matter of Weiss v
Teachout, 120 AD3d 701, 702 [2014] [internal quotation marks and
citations omitted]; see Matter of Jones v Blake, 120 AD3d 415,
416 [2014], lv denied 23 NY3d 908 [2014]; Matter of Fernandez v
Monegro, 10 AD3d 429, 430 [2004]). "The crucial determination
whether a particular residence complies with the requirements of
the Election Law is that the individual must manifest an intent,
coupled with physical presence 'without any aura of sham'"
(People v O'Hara, 96 NY2d at 385, quoting Matter of Gallagher v
Dinkins, 41 AD2d 946, 947 [1973], affd 32 NY2d 839 [1973]). To
that end, "[t]he party challenging residence has the burden of
proof by clear and convincing evidence" (Matter of Weiss v
Teachout, 120 AD3d at 702; see Matter of Shafer v Dorsey, 43 AD3d
621, 622 [2007], lv denied 9 NY3d 804 [2007]).

      We disagree with the interpretation by Supreme Court and
the dissent that Glickman's act of registering to vote in
Washington, D.C. in the November 4, 2014 election precludes
Glickman, as a matter of law, from selecting New York as his
residence for candidacy purposes. We do not believe that such
act by itself amounts to a candidate's manifestation of an intent
to remain for a time in the locality where such registration took
place.



      1
         Objectors' argument advancing an alternative ground for
affirmance is properly before us; however, because they were not
aggrieved by Supreme Court's order, their cross appeal is
dismissed (see Maldonado v DiBre, 140 AD3d 1501, 1503 n 3
[2016]).
                                 -4-                523489

      Residency, under New York's Election Law, involves a
holistic examination of various factors and cannot be determined
or expressed at a fixed point (see Matter of Weiss v Teachout,
120 AD3d at 702; cf. Matter of Willkie v Delaware County Bd. of
Elections, 55 AD3d 1088, 1090-1091 [2008]). As such, while a
voter's registration is a significant factor in the residency
calculus (cf. Matter of Meyer v Whitney, 132 AD3d 1062 [2015], lv
denied 26 NY3d 909 [2015]; Matter of Maas v Gaebel, 129 AD3d 178
[2015]) and may ultimately be determinative (see Matter of
Thompson v Hayduk, 45 AD2d 955, 956 [1974], affd 34 NY2d 980
[1974]), it is just one factor that must be examined in
determining a candidate's residency (see Matter of Jones v Blake,
120 AD3d at 416; Matter of Stavisky v Koo, 54 AD3d 432, 434
[2008]; Matter of Bastone v Cocco, 230 AD2d 950, 951 [1996],
appeal dismissed and lv denied 88 NY2d 971 [1996]).2 We do not
read Matter of Thompson v Hayduk (supra) as creating a bright-
line rule for determining residency as it was reached upon a
consideration of "the proof adduced" (id. at 956). Indeed, a
determination of a person's residence depends upon "an
individual's expressed intent and conduct" (People v O'Hara, 96
NY2d at 384).

      Applying these principles, testimony presented at the
hearing, which Supreme Court found credible, established that
Glickman left his father's home in Tonawanda, New York in 2007 in
order to attend college and graduate school in Maryland and,
eventually, moved to the Washington, D.C. area. During this
time, Glickman returned to his father's home multiple times a
year. He kept personal belongings at the Tonawanda home and
continued to use that mailing address for his driver's license,
credit card and bank statements, and other bills. Glickman also
retained his doctor and dentist in New York during the period in
question, as well as maintained his membership in a New York
synagogue, where he participated in services, including being the
Shofar blower in the Jewish New Year services each year since
2007. Following the purchase of a vehicle in 2013, Glickman
stored that vehicle in his father's garage during the winter
months.

         From October 2013 until March 2015, Glickman lived in a


     2
        In Matter of Meyer v Whitney (supra) and Matter of Maas v
Gaebel (supra), we held that, for voting purposes, an individual
is presumed to be a resident of a locality where he or she
registered to vote, but such presumption may be rebutted.
                                -5-                523489

"community organizer's house" in Washington, D.C., during which
time he was employed on a yearly basis with a consulting firm and
as a part-time high school teacher. Glickman testified that,
although the better job opportunities remained in Washington,
D.C., he was looking to return to New York. In March 2015,
Glickman returned to his Tonawanda home and, in May 2015, he re-
registered to vote there. In October 2015, Glickman moved and
changed his voter registration to 207 Milburn Street in
Rochester, New York, where he has signed two consecutive leases.
Glickman bought furniture for his home on Milburn Street, paid
utilities and had bills sent there, and changed the address on
his license to that address.

      Under the circumstances here, the evidence adduced
regarding compliance with the five-year residency requirement
demonstrates Glickman's "legitimate, significant and continuing
attachments" in order to establish New York as his residence for
Election Law purposes (Matter of Ferguson v McNab, 60 NY2d 598,
600 [1983]). Even if Glickman had registered and voted in
Washington, D.C., based on how New York courts have interpreted
Election Law § 1-104 (22), that, in and of itself, does not
demonstrate as a matter of law that he intended to abandon his
New York residence at the precise point of registering (cf.
Matter of Hosley v Curry, 85 NY2d 447, 450 [1995]; see Matter of
Jones v Blake, 120 AD3d at 416).3 Because objectors failed to
establish by clear and convincing evidence any "aura of sham" in
Glickman's electoral residency for the purpose of obtaining the
candidacy (People v O'Hara, 96 NY2d at 385), the petitions should
not have been invalidated.

      Next,   objectors assert, as an alternative ground for
affirmance,   that Glickman did not meet the NY Constitution
requirement   that he reside in the Senate District for one year
immediately   preceding the election as evidenced by a November 25,
2015 change   to Glickman's voter registration that reflected his
residential   address at the home of his father's girlfriend, which
was outside   the 55th Senate District. Testimony and documentary
evidence at   the hearing established that Glickman remained a
resident of   207 Milburn Street in Rochester since October 2015

    3
        In Matter of Hosley v Curry (supra), even though the
candidate registered to vote and, in fact, voted in different
localities over a period of years, the Court of Appeals, upon an
examination of relevant factors, held that the candidate did not
intend to abandon his residence where he was ultimately elected;
this holding applies here.
                              -6-                523489

and had never resided at the out-of-district address. Testimony
by Glickman, which Supreme Court credited, confirmed that any
change in address was unintentional and that he immediately
changed his voter registration back to the Milburn Street address
upon discovery of the error. Notwithstanding their own
investigatory measures, objectors failed to present sufficient
evidence that Glickman resided outside the Senate District at
issue or that the address listed as Glickman's residence on the
designating petition is not where he resided for one year prior
to the election (see e.g. Matter of Bastone v Cocco, 230 AD2d at
951). As objectors failed to establish by clear and convincing
evidence that Glickman did not meet the constitutional residency
requirements for candidacy for the office for which he was
nominated, Glickman's designating petitions should not have been
invalidated.

     Garry, J.P., and Devine, J., concur.


Egan Jr., J. (dissenting).

      Zackary Laffin, Silvio Palermo and John D. Moffit Jr.
(hereinafter collectively referred to as objectors) filed written
objections with respondent New York State Board of Elections
challenging, insofar as is relevant here, the validity of the
designating petitions naming Steven Glickman as the Democratic
Party and Working Families Party candidate for the public office
of State Senator for the 55th Senate District in the September
13, 2016 primary election. Specifically, objectors argued that
Glickman failed to meet the residency requirements set forth in
NY Constitution, article III, § 7, which provides, in relevant
part, as follows: "No person shall serve as a member of the
legislature unless he or she is a citizen of the United States
and has been a resident of the state of New York for five years,
and, except as hereinafter otherwise prescribed, of the assembly
or senate district for the [12] months immediately preceding his
or her election." The parties stipulated that the five-year
state residency period should be measured from the date upon
which the term of office will commence, and that the one-year
district residency requirement should be measured from the date
of the election. Accordingly, in determining whether, as a
threshold matter, Glickman meets the five-year residency
requirement, this Court must look to his activities in the five
years preceding January 1, 2017.

      Both New York, where Glickman currently resides and has
been registered to vote since May 2015, and the District of
Columbia, where Glickman previously resided and registered to
                                -7-                523489

vote in November 2014, define "residence" in substantially
similar fashions (see Election Law § 1-104 [22]; DC Code § 1-
1001.02 [16] [A]),1 and there is absolutely no question that an
individual may maintain more than one residence – either in
different states or in different communities within the same
state – at the same time (see People v O'Hara, 96 NY2d 378, 384
[2001]; Matter of Maas v Gaebel, 129 AD3d 178, 180 [2015]; Matter
of Willkie v Delaware County Bd. of Elections, 55 AD3d 1088, 1089
[2008]). That said, an individual who maintains multiple
residences must choose one of them for electoral purposes –
specifically, the residence to which he or she "has legitimate,
significant and continuing attachments" (People v O'Hara, 96 NY2d
at 385 [internal quotation marks and citation omitted]; accord
Matter of Maas v Gaebel, 129 AD3d at 180; Matter of Willkie v
Delaware County Bd. of Elections, 55 AD3d at 1089).

      Although Glickman offered inconsistent testimony as to
whether he ever registered to vote in the District of Columbia –
variously testifying that he was registered to vote somewhere
outside of New York at one point in time, that he never completed
a voter registration form in the District of Columbia and that he
did not remember if he ever filled out such a form – and the
record on appeal does not contain the registration form itself,
the voter profile maintained by the District of Columbia Board of
Elections, which was entered into evidence at the hearing,
nonetheless reflects that Glickman indeed registered to vote in
the District of Columbia on November 4, 2014. Notably, one of
the requirements of a "qualified elector" in that locale is that
he or she "[h]as maintained a residence in the District [of
Columbia] for at least 30 days preceding the next election and
does not claim voting residence or right to vote in any state or
territory" (DC Code § 1-1001.02 [2] [C] [emphasis added]).

        Even assuming that Glickman was unaware of that particular


    1
        Election Law § 1-104 (22) defines residence as "that
place where a person maintains a fixed, permanent and principal
home and to which he [or she], whenever temporarily located,
always intends to return." Similarly, the term residence in the
District of Columbia is defined as "the principal or primary home
or place of abode of a person," which, in turn, means "that home
or place in which the person's habitation is fixed and to which a
person, whenever he or she is absent, has the present intention
of returning after a departure or absence therefrom, regardless
of the duration of the absence" (DC Code § 1-1001.02 [16] [A]).
                              -8-                523489

requirement, we nonetheless are satisfied that, once Glickman
registered to vote in the District of Columbia in November 2014,
he effectively ended his residency in New York for purposes of NY
Constitution, article III, § 7 (see Matter of Thompson v Hayduk,
45 AD2d 955, 956 [1974], affd 34 NY2d 980 [1974]). In other
words, while Glickman indeed could have maintained dual
residences in New York and the District of Columbia during the
five-year period at issue, he could only utilize one of those
residences for electoral purposes – specifically, he could not
purport to be a registered and eligible voter in the District of
Columbia while simultaneously claiming to be a resident of New
York for purposes of fulfilling the five-year residency
requirement. Simply put, by registering to vote in the District
of Columbia in November 2014, Glickman effectively broke whatever
New York chain of residency he previously enjoyed – a period of
New York residency that did not begin again for purposes of
computing the five-year residency period set forth in NY
Constitution, article III, § 7 until Glickman again registered to
vote in New York in May 2015. For this reason alone, we would
affirm Supreme Court's order invalidating Glickman's designating
petitions.

      That said, we are aware that the courts of this state
consistently have held that "[t]he question of residence is a
factual one, based on a variety of factors and circumstances"
(Matter of Stavisky v Koo, 54 AD3d 432, 434 [2008]; accord Matter
of Chaimowitz v Calcaterra, 76 AD3d 685, 686 [2010]) and,
further, that the burden of proof here lies with objectors, who
were required to establish, by clear and convincing evidence,
that Glickman did not fulfill the five-year residency requirement
in the first instance (see Matter of Weiss v Teachout, 120 AD3d
701, 702 [2014]). However, even assuming that Glickman did not –
as we believe – effectively end his residency in New York solely
by registering to vote in the District of Columbia in November
2014, we still are satisfied, upon due consideration of all the
relevant factors and circumstances, that objectors met their
burden of proof here and that Glickman's designating petitions
were properly invalidated.2


    2
        Contrary to the position adopted by the majority, we do
not find the Court of Appeals' decision in Matter of Hosley v
Curry (85 NY2d 447 [1995]) to be dispositive – in large measure
because Hosley did not involve ascertaining whether the candidate
at issue satisfied the five-year residency requirement set forth
in NY Constitution, article III, § 7. More to the point, Hosley
                              -9-                523489

      By Glickman's own account, he graduated from college in
2011 and thereafter secured two internships in the greater
Washington, D.C. area. After completing his Master's degree in
May 2012, Glickman continued to work and reside in that general
vicinity. Notably, Glickman lived in what he described as a
community organizing house in Washington, D.C. from October 2013
to March 2015. Although Glickman returned to New York shortly
thereafter, he continued his consulting position in Washington,
D.C. – working remotely from various locations and "crash[ing] at
a friend's place" if he "ever needed to go back to [Washington,]
D.C. for work." Indeed, Glickman testified that he
"[t]echnically" was "still employed" there at the time of the
hearing and acknowledged that he did not take a leave of absence
from that position until November 1, 2015. Such proof, in our
view, when combined with Glickman's 2014 voter registration in
the District of Columbia, constitutes clear and convincing
evidence that Glickman did not satisfy the five-year state
residency requirement set forth in NY Constitution, article III,
§ 7. In light of this conclusion, we need not consider whether
objectors also established that Glickman did not meet the one-
year district residency requirement. Accordingly, for all of
these reasons, we would affirm Supreme Court's order.

     Mulvey, J., concurs.



     ORDERED that the cross appeal is dismissed, without costs.




stands for nothing more than the well-settled proposition that a
domicile, once acquired, continues until an individual engages in
conduct that manifests a definitive intent to abandon one
domicile and acquire another. We are satisfied that Glickman
engaged in such affirmative conduct here and, hence, cannot
satisfy the five-year New York residency requirement.
                              -10-                 523489

      ORDERED that the order is reversed, on the law and the
facts, without costs, petition in proceeding No. 3 dismissed,
petitions in proceedings Nos. 1 and 2 granted, and the
designating petitions naming Steven Glickman as the Democratic
Party and Working Families Party candidate for the public office
of State Senator for the 55th Senate District in the September
13, 2016 primary election are declared valid.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
