MATTER OF CAMPBELL v. TUNNY

CourtUnited States State Supreme Court (New York)
Citation196 Misc.2d 860,764 N.Y.S.2d 163
Decision Date04 August 2003
PartiesIn the Matter of MEGHAN M. CAMPBELL, Petitioner,<BR>v.<BR>PETER B. TUNNY, as Purported Republican Candidate for the Public Office of Albany County Legislator, Legislative District No. 23, County of Albany, New York, et al., Respondents.

196 Misc.2d 860
764 N.Y.S.2d 163

In the Matter of MEGHAN M. CAMPBELL, Petitioner,
v.
PETER B. TUNNY, as Purported Republican Candidate for the Public Office of Albany County Legislator, Legislative District No. 23, County of Albany, New York, et al., Respondents.

August 4, 2003.


Bloomberg & Magguilli, Albany (Michael C. Magguilli of counsel), for petitioner.

Tabner, Ryan & Keniry, Albany (John W. Tabner of counsel), for Peter B. Tunny and others, respondents.

Michael C. Lynch, County Attorney, Albany (Craig A. Denning of counsel), for Michael J. Monescalchi and another, as Commissioners of the Albany County Board of Elections, respondents.

[196 Misc.2d 861]

OPINION OF THE COURT

THOMAS J. SPARGO, J.

Petitioner requests a judgment declaring that the designating petition of Peter B. Tunny for designation as candidate of the Republican Party for the public office of Albany County Legislator, Legislative District No. 23, County of Albany, is invalid for the following reasons:

1. Tunny has not resided in the 23rd District for at least one year prior to the date he would take office as required by section 202 of the Albany County Charter, and

2. Tunny has not submitted a sufficient number of valid signatures on his designating petition.

Petitioner filed no specific objections with the Board of Elections concerning the number or validity of the signatures contained in Tunny's designating petition. By failing to object on that basis with the Board of Elections, petitioner waived review of the claimed objections by this court (Matter of Brosnan v Black, 104 AD2d 469, 471 [1984], affd 63 NY2d 692 [1984]; Matter of Simmons v Jaros, 255 AD2d 939 [1998]; Matter of Regan v Starkweather, 186 AD2d 980, 981 [1992]; Matter of Molloy v Scaringe, 153 AD2d 782, 783 [1989]).

Petitioner is a registered voter and an enrolled member of the Republican Party eligible to vote in the next primary and general elections for the public office of Albany County Legislator, Legislative District No. 23, County of Albany.

Tunny is the designated Republican candidate for county legislator for the 23rd District and no other candidate has filed for the Republican nomination for that office.

Tunny presently resides at 65 Bridle Path in the Town of Colonie which is located in the 27th Legislative District. Tunny has signed a contract to purchase a house located at 198 Shaker Ridge Drive in the Town of Colonie which is located in the 23rd Legislative District. All contractual contingencies have been satisfied. The date contractually set for transfer of title and possession is "on or about September 21, 2003" and a closing date has been scheduled for September 12, 2003.

Both the 23rd and 27th Districts are located wholly within the Town of Colonie and are contiguous to each other. Tunny's present home in the 27th District is located approximately two miles from his prospective new home in the 23rd District.

Tunny has resided in the Town of Colonie for over 39 years. He is an incumbent member of the Colonie Town Board and

[196 Misc.2d 862]

has served in that office for the past eight years. As part of his work on the town board, Tunny has served as a liaison to various town departments affecting both the 23rd and 27th Districts and has attended public meetings in the 23rd District in connection with his town board responsibilities.

The record shows that Tunny will qualify as a voter in the 23rd District pursuant to Election Law § 5-102 since he will reside at his new home in excess of 30 days prior to the November 4, 2003 election. He will also satisfy the public office residency requirements of Public Officers Law § 3 (1) and Election Law § 6-122 (see Matter of Weidman v Starkweather, 80 NY2d 955 [1992]; Matter of Clark v McCoy, 196 AD2d 607 [1993], lv denied 82 NY2d 653 [1993]; Matter of Keith v King, 220 AD2d 471, 472 [1995]).

Petitioner's objection rests upon application of section 202 of the Albany County Charter (Local Law No. 8 [1993] of County of Albany), which provides as follows:

"All County Legislators shall be electors of the County and have been residents continuously in the County and the district represented for at least one year prior to taking office. Each County Legislator shall reside in the district from which that County Legislator seeks election at the time of nomination for office, and continue to be a resident of the County and of the district within the County which she represents for the entire term of her office, subject, however, to the following exception: in the case of an election
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