In a unanimous decision, five Appellate Division Justices of the State Supreme Court have put Peter Koo’s name back on the ballot, to challenge Senator Toby Stavisky for the 16th District seat in November, saying “the evidence adduced at the trial did not warrant the Supreme Court’s conclusion.”
Attorneys for Stavisky, a democrat, had gone to court to invalidate petitions to place Koo on the ballot in the Republican Party, Conservative Party and Independence Party primaries on September 9.
Their claim was that Koo actually lived in Port Washington, not the address he listed as 133-24 41st Avenue in Flushing. The state constitution demands that State Senate candidates live in the district for at least a year.
On Thursday, August 14, in a strongly worded decision, Justice James Dollard found Koo “not to be a credible witness,” because Koo could not produce cancelled checks and bills to prove his residence, Dollard, who was elected to the bench in 2001, ruled in favor of Stavisky’s petition to throw Koo off the ballot.
After the decision, Stavisky spokesperson Joe Reubens declared, “Peter Koo’s candidacy is a sham.”
Koo had complained that the judge didn’t listen to his explanations.
The Appellate court pointed out that it wasn’t up to Koo to satisfy the judge he actually lived where he said.
“The petitioner [Stavisky] has the burden of establishing by clear and convincing evidence that the address listed on Koo’s designating petitions was not his residence,” they noted.
“New York Courts have recognized that in this modern and mobile society, an individual can maintain more than one bona fide residence,” the jurists quoted from precedent, continuing, “For the purposes of the Election Law, one cannot create an address solely for the purpose of circumventing residency requirements.”
In a statement which spoke directly to Reubens’ remark they continued.
“The crucial [factor in the] determination [of] whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence without any aura of sham.”
After pointing out that Koo had paid roughly $24,000 in New York City resident income taxes in 2007, that he also registered to vote and had his driver’s license under the Flushing address, the court continued citing “case law.”
“The question of residence is a factual one, based on a variety of factors and circumstances,” they quoted, noting that in a non jury trial, “[The Appellate Court] may render the judgment it finds warranted by the facts.”
The justices concluded, “Accordingly, the Supreme Court should have denied the petition to invalidate Koo’s designating petitions, and granted Koo’s cross petition to validate his designating petitions.”
Reaction from the Koo camp was swift.
Koo’s attorney Mark Fang said, “The Court’s unanimous decision reaffirms what we’ve said all along – that Peter Koo is a hardworking Asian American who lives in Queens.
“The evidence that Peter presented to the Court unequivocally met the standard of proof before a non-partisan judicial panel,” Fang declared. “The incumbent Senator should be ashamed of her back handed tactics to remove a challenger who she is clearly afraid of running against,” he chided.