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WPCNR FOR THE RECORD. Appellate Court decision handed down today on the Kat Brezler Appeal of her being denied a place on the ballot. May 29, 2019:

“After a hearing, the Supreme Court concluded that numerous signatures on the designating petition were invalid because they did not match the signatures on those signatories’ buff cards.

Additionally, the court invalidated numerous other signatures on the basis that the subscribing witness, Kimberly Cooley, did not provide her correct residence address in her subscribing witness statement.

Since, after eliminating the invalidated signatures, the designating petition did not contain the requisite number of signatures, the court, in effect, granted the petition, inter alia, to invalidate the designating petition (hereinafter the invalidation petition), and invalidated the designating petition. Brezler appeals.

“The Supreme Court may entertain specific objections to signatures on a designating petition that were not asserted before a board of elections to the extent the respondent was given adequate notice of which signatures on his or her designating petition are being challenged and the grounds thereof” (Matter of Lancaster v Nicolas, 153 AD3d 829, 830-831; see Matter of Edelstein v Suffolk County Bd. of Elections, 33 AD3d 945, 946; Matter of Levitt v Mahoney, 133 AD2d 516).

Here, Brezler was not given notice, until the hearing on the invalidation petition was underway, that the petitioners were challenging numerous signatures on the ground that they did not match those signatories’ signatures on their buff cards and that the Supreme Court would be comparing the majority of the challenged signatures to those voters’ buff cards to determine whether the signatures on the designating petition matched those on the buff cards.

Contrary to the petitioners’ contention, their specifications of objections filed with the Westchester County Board of Elections (hereinafter the Board) and incorporated by reference into the invalidation petition did not provide notice of this [*2]basis for challenging the signatures.

Since the lack of notice deprived Brezler of an opportunity to adequately prepare a defense, the court should not have invalidated the subject signatures on the basis that they did not match the signatures on the buff cards (see Matter of Santoro v Schreiber, 263 AD2d 953; Matter of Levitt v Mahoney, 133 AD2d at 516; see also Suarez v Sadowski, 48 NY2d 620, 621; cf. Matter of Master v Davis, 65 AD3d 646; Matter of Edelstein v Suffolk County Bd. of Elections, 33 AD3d at 946).

The Supreme Court also should not have invalidated those signatures witnessed by Cooley.

A subscribing witness is required to include, in the Statement of Witness, his or her residence address (see Election Law § 6-132[2]). This requirement “protects the integrity of the nominating process by assuring that a subscribing witness is subject to subpoena in a proceeding challenging the petition” (Matter of Pisani v Kane, 87 AD3d 650, 651-652).

The Election Law defines the term “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 Dilan v Salazar, 164 AD3d 713, 714).

The “crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent [to reside there], coupled with physical presence without any aura of sham'” (Matter of Dilan v Salazar, 164 AD3d at 714, quoting People v O’Hara, 96 NY2d 378, 385).

Here, Cooley included in her Statement of Witness a residence address in Baldwin, New York. Although Cooley had been displaced for several months from those premises due to construction, she testified that she intended to return to the Baldwin residence once the construction was completed.

This testimony was supported by evidence that she had stayed at numerous different places since her displacement, that she still had furniture at the Baldwin residence, and that her other belongings had been placed in storage.

Notably, there was no evidence that Cooley had established a fixed residence elsewhere (cf. Matter of Willis v Suffolk County Bd. of Elections, 54 AD3d 436, 438). Under these circumstances, the signatures witnessed by Cooley should not have been invalidated on the ground that she did not provide her correct residence address on her witness statement (cf. Matter of Dilan v Salazar, 164 AD3d 713).

In light of our conclusion that the signatures eliminated based upon the comparisons to the buff cards and those eliminated because they were witnessed by Cooley should not have been invalidated, the petitioners failed to demonstrate that Brezler’s designating petition lacked the requisite number of signatures. Accordingly, the invalidation petition should have been denied and the proceeding dismissed.