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April 27, 2011

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law
Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), Supreme Court, Wayne County, Docket Number: 71473/2010, Judge Dennis M. Kehoe [Not selected for publication in the Official Reports]

The Village Board of the Town of Sodus filed a petition in Supreme Court seeking to remove Kelley M. Allen from his position of Village Mayor.

The Village Board contended that Allen was not a resident of the Village the time of election in November 2008, nor is he now, and thus ineligible to serve as the Village Mayor, citing Village Law §300(1).

In rebuttal, Allen said that he maintained a residence in an apartment on the second floor of a building located within the Village at 29 West Main Street. The building is owned by Allen’s wife, Tracey L. Fox, Esq., who has maintained her law office at that address for some eleven years.* 

Judge Kehoe, noting that the Village Law does not define the term "resident", said that under Election Law §1-104(22) the term refers to "that place where a person maintains a fixed, permanent and principal home, and to which he, whenever temporarily located elsewhere, intends to return"** of his or her domicile.

The court then said that while “numerous cases have held that it is possible for an individual to maintain more than one bona fide residence, in People v. O'Hara, 96 NY2d 378, the Court of Appeals held that the "crucial" factor in determining the legitimacy of a particular residence under the Election Law is that the individual must manifest an intent to live there, coupled with a physical presence, "without any aura of sham."

Having been reviewed the deposition testimony of Mr Allen and his wife at length and considering all the evidence in the light most favorable to the Allen, Judge Kehoe that the Village Board made a prima facia showing of entitlement to summary judgment as a matter of law, and that the Allen has failed to rebut the showing.

Based on Allen’s deposition testimony that [1] he had rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, Judge Kehoe said he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.

Having not met the criteria necessary to establish himself as a resident of the Village of Sodus, the court granted the Village Board’s motion for summary judgment, citing Public Officers Law §30(1)(d).

Public Officers Law §30(1)(d) provides that a public office becomes vacant if the incumbent of such office ceases to be “an inhabitant of the state, or if he be a local   officer, of the political subdivision, or municipal corporation of which   he is required to be a resident when chosen....”

As the Appellate Division noted in Johnson v Town of Amherst, 74 AD3d 1896, having a residence in a jurisdiction is not always the same as having a domicle in that jurisdiction.

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.” James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.” As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."* and the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The Johnson decision is posted on the Internet at:

The Allen decision is posted on the Internet at:

* The decision notes that Allen and his wife own a residence located within the Town of Sodus but outside the Village limits, and have lived there with their two children since the year 2000.

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