Johnson v. Simpson
840 N.Y.S.2d 543
N.Y. App. Div.
2007
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In the Matter of DIANA A. JOHNSON, Appellant, v SHAWNDYA L. SIMPSON, Respondent, et al., Respondent.

Supreme Court, Appellate Division, Second Department, New York

August 21, 2007

840 N.Y.S.2d 543

In a proceeding pursuant to Election Law § 16-102, inter alia, to invalidate a petition designating Shawndya L. Simpson as a candidate in a primary election to be held on September 18, 2007 for the nomination of the Democratic Party as its candidate for the public office of Surrogate, County of Kings, the petitioner appeals from so much of a final order of the Supreme Court, Queens County (O’Donoghue, J.), dated August 17, 2007, as, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the final order is affirmed insofar as appealed from, without costs or disbursements.

The petitioner contends that the petition designating Shawndya L. Simpson as a candidate in the primary election to be held on September 18, 2007 for the nomination of the Democratic Party as its candidate for the public office of Surrogate, County of Kings, should be invalidated on the ground that Simpson does not reside in that county (see NY Const, art VI, § 12 [b]; Public Officers Law § 3 [1]). In particular, the petitioner contends that Simpson resides in the state of New Jersey, and not in Kings County.

The petitioner did not sustain her evidentiary burden of establishing by clear and convincing evidence that Simpson is not a resident of Kings County (see ; ). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding (see ; ).

The petitioner’s remaining contentions are without merit or need not be reached in light of our determination. Miller, J.P., Spolzino, Ritter, Dillon and Dickerson, JJ., concur.