Galiber v. Previte , 54 A.D.2d 513 ( 1976 )

Judgment, Supreme Court, Bronx County, unanimously affirmed, without costs and without disbursements, for the reasons given by the referee. (See, also, Election Law, §§ 330, 335; CPLR 4403.) Appellant’s oral application for leave to appeal to the Court of Appeals is granted. Concur&emdash;Stevens, P. J., Silverman, Capozzoli and Nunez, JJ; Kupferman, J., concurs in the result in a memorandum, as follows: The respondent-appellant raises several interesting questions which warrant further consideration by the Court of Appeals. If CPLR 4320 (subd [b]) requires the referee to file his report together with a transcript, in the absence of such transcript can the Justice at Special Term confirm the report? (See Aron v Aron, 280 NY 328.) Further, can the summary procedure contemplated by sections 330 and 335 of the Election Law validate the expeditious confirmation without such a transcript? Underlying the legal problem, of course, is the practical fact that in many cases, the time schedule does not allow for a full transcript to be timely prepared. (See Note, 73 Col L Rev 318, "Primary Challenges in New York: Caselaw Coleslaw v. Election Protection; Matter of Silver v. Feuer, 46 A D 2d 635 [dissent].)” As a result, the final determination may hinge on who has the burden of providing the minutes of the hearing. (See Matter of Mercorella v Benza, 37 NY2d 792, revg 49 AD2d 705, on remand 49 AD2d 716.) The other legal point is whether the New York State Constitution provision requiring, among other things, that a member of the Legislature must be a resident of the State for five years (art III, § 7), violates the United States Constitution. This court has previously upheld that section. (Matter of Burns v Power, New York County Clerk’s Index No. 06950/1964 [Sarafite, JJ, affd without opn 21 AD2d 753.) However, recent Supreme Court decisions raise questions that seem to indicate (and in my view rightly so, considering some more prominent candidacies) that such a long residence requirement is unreasonable. (See Dunn v Blumstein, 405 US 330; Carrington v Rash, 380 US 89.) Nonetheless, we cannot lightly overturn a New York State constitutional provision. Moreover, the Attorney-General has not been notified. (Cf. CPLR 1012, subd [b].)