Upon the following papers read on this order to show cause by petitioners for an order disqualifying respondent candidate from the ballot for the primary election to be held June 23,2020 and the general election to be held November 3, 2020, as well prohibiting any other candidate from filling such vacancy based upon the disqualification: petitioners’ order to show cause, attached petition with supporting papers; and memorandum of law; respondent Board of Election’s return; respondent-candidate’s verified answer; petitioner’s reply and memorandum of law; the hearing held April 20, 2020 and respondent-candidates trial memorandum of law, it is ORDERED that the petition is dismissed as petitioners have not sustained their burden of proof by clear and convincing evidence that respondent-candidate Michael A. Marcantonio should be disqualified for failing to meet the requirement of five years continuous residency in New York pursuant to New York State Constitution Article III §7. Petitioners commenced this proceeding pursuant to Article 16 of the Election Law by order to show cause and petition granted on March 30, 2020 challenging the petitions filed by the Democratic Party and the Working Families Party designating or nominating respondent-candidate Michael A. Marcantonio (“Marcantonio”) for the office of member of the New York State Assembly for the 12th Assembly District for the primary to be held June 23, 2020 and for an order prohibiting the respondent Suffolk County Board of Elections, Anita S. Katz and Nick LaLota, Commissioners, (“BOE”) from placing Marcantonio’s name on the ballot for that primary election, as well as for the general election to be held on November 3, 2020, and upon Marcantonio’s disqualification, prohibiting the Democratic Party and the Working Families Party from substituting any other candidate in his place. The matter was returnable for a hearing before this court on April 16, 2020, but with the court operating under “virtual court” procedures as a result of the Covid-19 crisis, the hearing was unable to proceed that day due to technical difficulties with the attorneys communications systems. The matter was adjourned to April 20, 2020, at which time the hearing proceeded, documentary evidence was presented and the testimony of Marcantonio was taken. In his opening statement petitioners’ counsel withdrew the argument that Marcantonio was disqualified pursuant to that portion of the New York State Constitution that prohibited a person from serving as a member of the assembly unless she/he resided within the assembly district for the twelve months immediately preceding his or her election, and went forward only on the ground that Marcantonio failed to meet the constitutional requirement of residing in the state of New York for five continuous years immediately before the election (New York State Constitution Article III, §7; see Matter of Bourges v. LeBlanc, 98 NY2d 418, 420 [2002]). At the conclusion of presentation of all evidence, counsel for the parties made closing arguments, and the court reserved decision. At that time the court also denied the motion to dismiss made by Marcantonio’s counsel’s at the original close of petitioners’ case, as the court had allowed petitioners to re-open their proof. The issue before the court is Marcantonio’s residency for the five years prior to November 3, 2020. Petitioners bear the burden of establishing that Marcantonio was not a resident of New York State for that period by clear and convincing evidence (see Matter of Glickman v. Laffin, 27 NY3d 810 [2016]; Matter of Weiss v. Teachout, 120 AD3d 701 [2d Dept 2014]). That burden is only met if petitioners’ evidence satisfies the trier of fact that it is highly probable that Marcantonio has not resided in the state for five continuous years before the election of November 3, 2020; it is not enough to establish that claim by a preponderance of the evidence (PJI 1:64). The court finds that petitioners have not met that burden; in fact the credible evidence establishes that Marcantonio was a resident of New York for more than five years before the election to be held November 3, 2020. Along with the holding in Matter of Glickman v. Laffin, above, petitioners rely principally upon the holding in Matter of Notaristefano v. Marcantonio, 164 AD3d 721 (2d Dept 2018) affirming the decision of this court (Horowitz, J.), dated August 17, 2018, as amended August 20, 2018, disqualifying Marcantonio from the same office in the primary election scheduled for September 13, 2018. Their reliance upon both is misplaced. Matter of Notaristefano v. Marcantonio is not controlling under the facts of this action, as petitioners argue it is, as it was specific to the facts before the court in 2018. At that time the undisputed evidence before the court was that Marcantonio had registered to vote in North Carolina in 2012 while a student at Duke University Law School, Durham, North Carolina, and voted in the 2012 and 2014 elections there. The Appellate Division noted that Marcantonio had severed his continuous New York State electoral residency, noting that North Carolina law required that he could vote only if he represented that he had abandoned his prior “home,” showed a present intention to make Durham his home, intended to remain in Durham as long as he was a student and until he acquired a new domicile. The court found that in voting in Durham in 2014, “which occurred less than five years ago” (Matter of Notaristefano v. Marcantonio at 722) before the election then in question, he was disqualified under the New York State Constitution. Petitioner argued in this action that because Marcantonio registered in 2012, voted that year and again in 2014, he is barred from re-establishing his New York residency for electoral purposes until he had himself removed for the voter roles in North Carolina. Questioned by the court, petitioners’ counsel asserted that even after Marcantonio’s return to New York, working in a New York law firm, taking the bar exam in New York and clearly domiciled at his long time family address in Northport, he could have gone to North Carolina and voted. After further inquiry, petitioners’s counsel agreed that such voting would have been illegal under the law of any state, but when further queried by the court refused to abandon his prior position. When asked to produce case law that supported the argument that until the North Carolina registration was expunged no New York State residency could be established, petitioner acknowledged there was none. Yet petitioner continued to argue that the holding in Matter of Glickman v. Laffin and Matter of Notaristefano v. Marcantonio controlled, with the gravamen of the argument that once Marcantonio voted in North Carolina he forfeited his right to electoral residency in New York, apparently in perpetuity, until he took an affirmative act of registering to vote again in New York, as he did in March, 2016. Petitioner fails to see the significance in the statement by the Appellate Division in Matter of Notaristefano v. Marcantonio at 722, that it was the act of voting in 2014 “which occurred less than five years ago,” that was the basis for his disqualification. It did not refer back to his registration and voting in 2012, it was only the single act of voting in 2014 that was the offending act. The clear implication being that the act of “disqualification” had occurred more than five years before, and if Marcantonio had reestablished his New York electoral residency, he would have been qualified. In the vast majority of cases involving the issue of residency, although there are principles of general applicability, there are generally factual questions dependent upon the particular circumstances of each case (see Glickman v. Laffin citing Matter of Newcomb, 192 NY 238, 250 [1908]). The facts that led to the holding in Glickman v. Laffin, are significantly different than here. Although Mr. Glickman may have had a continuing relationship with New York, he left his father’s residence in New York in 2007 for college and graduate school. After graduation in 2013 he moved to Washington, D.C., where he lived in a community organizer house, was employed with a local firm, taught part-time high school and registered to vote in 2014. He then moved back to his father’s home in 2015, but from the record apparently took no significant act to show his intent to re-establish his New York residency until he registered to vote again in New York that year (the facts relating to the issue of his one year residency requirement are irrelevant here) and then attempted to run in the September 2016 primary. The court recognizes that the Court of Appeals’ decision states that Glickman broke the chain of residency by his registration in Washington, D.C., “which did not recommence until he registered to vote in New York in 2015″ (see Matter of Glickman v. Laffin at 816), but the court reads that to be the first affirmative act that Mr. Glickman took which indicated his commitment to re-establish his New York residency. This observation is made in conjunction with reading the decision of the Appellate Division in Matter of Dilan v. Salazar, 164 AD3d 713 (2d Dept 2018). In that decision the Second Department noted that although Salazar had registered to vote in New York in 2010 she did not vote in New York that year, instead she registered and voted in Florida in 2010, did not change her registration upon her return to New York in 2011, had her New York registration purged from the voter rolls in 2015, and did not actually re-register in New York until 2017. Despite this, the Second Department found that “[t]hese facts only present ambiguities in the residency calculus and that the evidence presented, considered as a whole, falls far short of that required for Dilan to meet his burden of demonstrating lack of residency by clear and convincing evidence,” citing Matter of Weiss v. Teachout and affirmed the dismissal of the objector’s petition. This decision clarifies that re-registration in New York is not the sine qua non of re-establishing electoral residency that petitioners argues it is. Unlike in Glickman, and similar to Dilan, the totality of the facts here show the reestablishment of Marcantonio’s electoral residency in New York after his vote in North Carolina in 2014. Marcantonio testified that when he voted in 2014, he received a document at the polls that stated that unless he provided proof such as a North Carolina drivers license or some other form of formal North Carolina residency, he would not be allowed to vote in that state in the 2016 presidential election. Marcantonio was so offended by this that he took a photograph of the handout which was presented in evidence, and determined that he would never vote in that state again. Holding to his convictions he never again voted in North Carolina, although he maintained a leased premises in Durham until the end of the Spring semester of 2015. At that time he “packed-up” all his belongings and drove them home to his parents’ house in Northport, where he had grown up and still resides. Before leaving school he had accepted employment in New York as a summer associate with the New York office of the law firm of Kirkland & Ellis, LLP (“Kirkland”) and at the end of that program he was offered a position with Kirkland at the New York office upon graduation, which he accepted; documentary evidence to support this was admitted. Upon returning to school for his final semester at Duke that Fall he stayed with a friend and did not enter into his own lease, he did not bring all the property back which he had removed that Spring, leaving much of it at his residence in Northport. His uncontradicted testimony was that as he had studied for a dual JD and LLM degree, he had enough credits to graduate, so in this last semester there were fewer classes that he had to attend and that he was also employed at Kirkland as a law clerk during the Fall semester. During this time, he worked for Kirkland both remotely from Durham, but frequently from his residence in Northport, where he frequently returned as the number of classes he had to actually attend at the law school were limited. Although some of his work for Kirkland could be performed remotely, there were also times he was required to be at the law firm, so he spent much of that semester either at his residence in Northport working remotely or at the law firm in Manhattan; again there was no evidence presented to contradict this testimony. Before his graduation in December 2015, he left his friend’s residence and moved his property to Northport, only coming back to Durham for the graduation ceremony. Other evidence was submitted that tended to establish the credibility of his renunciation/abandonment of his residency and voting registration in North Carolina after the November 2014 election, as well as his continuing ties to his residence in Northport, including both his Federal and New York State 2014 and 2015 income tax returns, his 2015 W-2 from Kirkland and a 2015 pay check from them, the registration for his Jeep in North Carolina that expired in March 2015, his car insurance bill, his banking statements, and his New York State drivers license, all of which bore his address in Northport. Although attempts were made to raise some questions concerning only a few of these documents by petitioners, those efforts were ineffective to meet petitioners’ burden of establishing Marcantoinio’s disqualification by clear and convincing evidence, and although the evidence submitted by petitioners may have raised a question as to Marcantonio’s possible disqualification, they alone were insufficient to meet petitioners ultimate burden of proof by clear and convincing evidence, especially when faced with what the court found to be the credible and believable testimony of Marcantonio as to his intent and re-establishment of his New York residency. The court points to the fact that he is a member of the bar, fully aware of the gravity of his oath as a witness and finds this to be a factor in what weight to give to his testimony. The court finds that the testimony and evidence presented fails to establish petitioners’ burden to prove by clear and convincing evidence that Marcantonio should be disqualified for failing to be a resident of the state of New York for five continuous years prior to the election of November 3, 2020; at best as in Dilan, it merely raises ambiguities and questions. Instead, the credible testimony and evidence presented by Marcantonio shows his clear intent and actions to re-establish his New York electoral residency at least by the Spring of 2015 when he started his summer employment with Kirkland and through the period before his graduation when he continued that working contact as well as presence at their offices in New York and in his residence in Northport. Although the burden was not upon Marcantonio, this evidence provides proof of the re-establishment of his New York residency by clear and convincing evidence. Accordingly, the petition is dismissed. That even if the court had found differently and disqualified Marcantonio, petitioners’ argument that the holding in Matter of Glickman v. Laffin prevents the two parties from substituting a candidate in Marcantonio’s place to be without merit. The reason why the trial court in Glickman, as well as the Court of Appeals, found that Glickman’s disqualification prevented a substitution pursuant to Election Law §6-148 is not explained, but is specific to that case. It has long been held that a disqualification of a candidate does not invalidate a petition so as to strip a committee on vacancies of their authority to fill the now vacant position (see Matter of Grieco v. Baden, 43 Misc 3d 254 [Sup. Ct., Kings County. 1964); aff'd 21 AD2d 751 [2d Dept 1964]; Matter of Nicholson v. Sharpton, 64 AD2d 946 [2d Dept 1978], aff’d 45 NY2d 794 [1978]; Matter of Chaimowitz v. Calcaterra, 76 AD2d 685 [2d Dept 2010]). Further, Election Law §6-148 states: 1. A vacancy in a designation or nomination caused by declination, where a declination is permitted by this article, or by the death or disqualification of the candidate (emphasis added), or by a tie vote at a primary, may be filled by the making and filing of a certificate, setting forth the fact and cause of the vacancy, the title of the office, the name of the original candidate, if any, and the name and address of the candidate newly designated or nominated. 2. A vacancy in a designation or independent nomination, or in a party nomination made otherwise than at a primary, may be filled by a majority of the committee to fill vacancies shown upon the face of the petition or certificate of the designation or nomination in which the vacancy occurs. 3. A vacancy in a nomination made at a primary, or by a tie vote thereat, may be filled by a majority of the members, of the party committee or committees last elected in the political subdivision in which the vacancy occurs, present at a meeting at which there is a quorum, or by a majority of such other committee as the rules of the party may provide. The statute clearly sets forth the manner by which a substitution can be made upon a disqualification of a candidate. To interpret that the holding in Glickman sets a “bright line” standard and is not limited to the facts of that case would go against a principle that the Court of Appeals has stated clearly and frequently; “A court cannot amend a statute by inserting words that are not there nor will a court read into a statute a provision which the Legislature did not see fit to enact…” (Chemical Specialties Mfrs. Ass’n v. Jorling, 85 NY2d 382, 394 [1995]; see also People v. Silburn, 31 NY3d 144, 174 [2018]; People v. Tiger, 32 NY3d 91 [2018]); further, where the language of a statute is clear and unequivocal, it should be construed according to its plain meaning (see Schoenefeld v. State of New York, 25 NY3d 22,26 [2015]). Here, the plain meaning of the statute allows a substitution upon disqualification. This constitutes the decision and order of the court. Dated: April 21, 2020
