                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 21, 2015                      518079
________________________________

In the Matter of GARY D. MAAS,
                    Respondent,
      v

RODNEY GAEBEL et al., as
   Commissioners of the
   Sullivan County Board of                 OPINION AND ORDER
   Elections, et al.,
                    Respondents,
      and

RUBIN BRAUNSTEIN et al.,
                    Appellants.
________________________________


Calendar Date:   March 24, 2015

Before:   Peters, P.J., Egan Jr., Rose and Lynch, JJ.

                             __________


     Gail B. Rubenfeld, Monticello, for appellants.

      Newberg Law Offices, Monticello (Marvin Newberg of
counsel), for Gary D. Maas, respondent.

                             __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Schick, J.),
entered December 26, 2013 in Sullivan County, which, among other
things, partially granted petitioner's application, in a
proceeding pursuant to Election Law § 16-106, to, among other
things, declare invalid certain absentee ballots cast for certain
public offices in the Town of Cochecton at the November 5, 2013
general election.
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      Petitioner, the Vice-Chair of the Sullivan County
Republican Committee, filed affidavits with the Sullivan County
Board of Elections (hereinafter the Board) in October 2013
challenging the eligibility of 29 registered voters in the Town
of Cochecton, Sullivan County on the basis that each was not a
resident of the Town within the meaning of the Election Law (see
Election Law § 5-220). Sixteen of the challenged voters are
shareholders of apartments at the Lake Huntington Summer
Community cooperative located in Lake Huntington, Sullivan County
(hereinafter collectively referred to as the Lake Huntington
voters). Upon receipt of the challenges, the Board notified the
29 challenged voters and, pursuant to its duty to investigate
(see Election Law § 5-220 [1]), requested that each complete a
detailed questionnaire. Following their review of the
questionnaires that had been returned, respondents Rodney Gaebel
and Ann Prusinski, the Commissioners of the Board, disagreed as
to whether petitioner's challenges should be granted, resulting
in a ruling by the Board that the voter registrations would stand
(see Election Law § 3-212 [2]).

      Petitioner then commenced this proceeding pursuant to
Election Law § 16-106 challenging the Board's determination and
seeking an order directing that the challenged voters' absentee
ballots for the November 2013 general election be declared
invalid and their names removed from the Town's registration
rolls. Following an evidentiary hearing, Supreme Court partially
granted the petition, concluding, as relevant here, that the Lake
Huntington voters were not residents of the Town for voting
purposes. The Lake Huntington voters appeal.1

      The Board's determination upholding the voter registrations
at issue constituted presumptive evidence of the Lake Huntington
voters' residence for voting purposes; thus, petitioner was
saddled with the weighty burden of proffering sufficient evidence
to overcome that presumption (see Election Law § 5-104 [2];


     1
        Although a notice of appeal was promptly filed by the
Lake Huntington voters following entry of Supreme Court's
December 18, 2013 order, the appeal was not perfected until
August 25, 2014 and no motion for a preference was made.
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Matter of Hosley v Curry, 85 NY2d 447, 452 [1995]; Matter of
Amedore v Peterson, 102 AD3d 995, 998-999 [2013], lv denied 20
NY3d 1006 [2013]; Matter of Dorman v Scaringe, 245 AD2d 949, 950
[1997], lv denied 91 NY2d 813 [1998]; Matter of Bressler v
Holt-Harris, 37 AD2d 898, 898 [1971], affd on op below 30 NY2d
529 [1972]). The Election Law 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" (Election Law § 1-104 [22]; see Matter of
Stewart v Chautauqua County Bd. of Elections, 14 NY3d 139, 146
[2010]; People v O'Hara, 96 NY2d 378, 384 [2001]). As the courts
of this state have repeatedly explained, the Election Law "does
not preclude a person from having two residences and choosing one
for election purposes provided he or she has 'legitimate,
significant and continuing attachments' to that residence"
(Matter of Isabella v Hotaling, 207 AD2d 648, 650 [1994], lv
denied 84 NY2d 801 [1994], quoting Matter of Ferguson v McNab, 60
NY2d 598, 600 [1983]; accord Matter of Willkie v Delaware County
Bd. of Elections, 55 AD3d 1088, 1089 [2008]). "The crucial
[factor in the] determination [of] 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]; accord Matter of Willkie v
Delaware County Bd. of Elections, 55 AD3d at 1089-1090; see
Matter of Weiss v Teachout, 120 AD3d 701, 702 [2014]; Matter of
Stewart v Chautauqua County Bd. of Elections, 69 AD3d 1298, 1300
[2010], affd 14 NY3d 139 [2010]).

      Applying these principles to the Lake Huntington voters, we
find that they are residents of the Town within the meaning of
the Election Law. Each of the Lake Huntington voters has owned
his or her cooperative home for nearly a decade, at the least,
and several have resided there for more than 30 years. The
cooperative community in which their homes are located is
seasonal, operating from mid-May to mid-October of each year.
While the water supply is shut off until the resumption of
operations the following year, the homes remain accessible year-
round. All of the Lake Huntington voters own or occupy another
residence outside of Sullivan County, yet they each return to
                              -4-                518079

their Lake Huntington homes every year for extended stays from
the spring through the fall. Further, each pays his or her
proportionate share of local property and school taxes, as well
as water and sewer fees. While none of the Lake Huntington
voters has ever obtained employment within the Town, enrolled
children in the Town's schools or utilized their Lake Huntington
address on his or her driver's license, vehicle registrations or
tax returns, and all were previously registered to vote outside
of Sullivan County, the evidence presented at the hearing makes
clear that "their ties to [the Town] were not a sham for voting
purposes, but genuine, long-term contacts created out of a true
desire to become part of the [Lake Huntington] community" (Matter
of Willkie v Delaware County Bd. of Elections, 55 AD3d at 1090).

      Two of the Lake Huntington voters provided testimony at the
hearing that was stipulated to be representative of that of the
remaining Lake Huntington voters. Respondent Peter Glick, who
has owned his Lake Huntington residence since 1981, attested to
his family's continuous use of the home during that time and
expressed his intent to use this residence for the "indefinite
future." He explained that, during the five-month period from
mid-May to mid-October, he and his family spend weekends, and at
times a week or two, at his Lake Huntington home and otherwise
try to "get up there whenever [they] can." When his children
were younger, Glick's wife and children would spend the entire
summer there. Glick noted that his Lake Huntington residence
remains furnished year round, as are those of other residents in
the community, is adorned with family pictures and has been
renovated and improved through the use of local contractors.
Glick also detailed his active involvement in the Lake Huntington
community as well as his contributions to several nonprofit
organizations within the Town. Similarly, respondent Joan Enker
testified that she has occupied her Lake Huntington home for
approximately 35 years and that, during such time, it has been
utilized by her children, extended family and friends. Enker
explained that she goes "back and forth" between her Lake
Huntington home and her home in New Jersey and, in recent years,
she has been spending more time at the Lake Huntington home.
Throughout the more than three decades that she and her husband
have been shareholders at the cooperative, Enker has been
involved in environmental groups in the community and has donated
                              -5-                518079

to local organizations. Like Glick, Enker testified that she and
her family intend to remain at their Lake Huntington residence
for the indefinite future.

      In our view, these voters should not have been
disenfranchised. The evidence established that the Lake
Huntington voters have legitimate, significant and continuing
attachments to the Town for the indefinite future such that they
should be permitted to choose their Lake Huntington residence for
voting purposes (see Matter of Willkie v Delaware County Bd. of
Elections, 55 AD3d at 1091; Matter of Shafer v Dorsey, 43 AD3d
621, 623 [2007], lv denied 9 NY3d 804 [2007]; Matter of Bressler
v Holt-Harris, 37 AD2d at 898; compare Matter of Stewart v
Chautauqua County Bd. of Elections, 14 NY3d at 147; Matter of
Bastone v Cocco, 230 AD2d 950, 951 [1996], appeal dismissed and
lv denied 88 NY2d 971 [1996]). Supreme Court's conclusion to the
contrary came on the heels of its faulty perception that "the
issue is where their permanent home is as opposed to a vacation
home." Proceeding under that framework, the court determined
that the "fixed, permanent and principal home" of the Lake
Huntington voters is not their home at the cooperative, which is
only open seasonally, but rather their "year-round permanent
home." The term "residence," however, has not been interpreted
so restrictively as to "requir[e] a finding that the individual
has more significant contacts to that place than any other"
(Matter of Willkie v Delaware County Bd. of Elections, 55 AD3d at
1089). We take this opportunity to reiterate that "the inquiry
is not which of [the Lake Huntington voters'] dual residences is
'the more appropriate one' for voting purposes, but whether the
residence held by [them] is a legitimate one" (id. at 1091,
quoting People v O'Hara, 96 NY2d at 385).

      Supreme Court's reliance on the motive behind the Lake
Huntington voters' decision to change their voting residence also
warrants discussion. While acknowledging that the Lake
Huntington voters "may very well have shown that [they] all . . .
are residents of Lake Cochecton and they all have intent to
return there, every year, and they all have significant ties to
the Lake Cochecton community," Supreme Court expressed concern
that the conceded purpose for their change in voting residence
was, in part, to attempt to express their political views on the
                              -6-                518079

issue of gas exploration within the community. Yet, "[m]otives
are immaterial, except as they indicate intention" (Matter of
Hosley v Curry, 85 NY2d at 452 [internal quotation marks and
citation omitted]; accord Matter of Larkin v Herbert, 185 AD2d
607, 608 [1992]). Simply put, the fact that one's position on a
specific political issue may serve as a motivating factor to
register to vote in a place where he or she has established a
bona fide residence does not render such residence a "sham."

      On these facts, and absent an indication in the record that
any of the Lake Huntington voters have attempted to "create an
address solely for the purpose of circumventing residency
requirements" (People v O'Hara, 96 NY2d at 385; accord Matter of
Willkie v Delaware County Bd. of Elections, 55 AD3d at 1091; see
Matter of Shafer v Dorsey, 43 AD3d at 623; compare Matter of
Hosley v Curry, 207 AD2d 116, 119 [1995], revd on other grounds
85 NY2d 447 [1995]), we conclude that their Lake Huntington
residences are, in fact, legitimate ones for voting purposes.
Accordingly, Supreme Court erred in declaring the Lake Huntington
voters' absentee ballots invalid and directing that their names
be stricken from the registry of voters.

     Egan Jr., Rose and Lynch, JJ., concur.
                              -7-                  518079

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as partially granted the
petition, invalidated the absentee ballots of respondents Rubin
Braunstein, Carol Cherry, Aaron Cohen, Joan Enkar, Warren Enkar,
Randy Frankel, Deborah Friedman, Peter Glick, Toby Glick, Scott
Groom, Theodore Haber, Marla Kessler, Pat Konecky, Robert Putz,
Marlene Star and Souzin Thau and directed that their names be
stricken from the registry of voters; petition dismissed to that
extent and matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
