(dissenting). We respectfully dissent. In this case, the qualification as to residency is set forth in the State Constitution and, therefore, Supreme Court has jurisdiction to determine if this qualification has been met (see, Matter of Spenser v Board of Educ., 39 AD2d 399, 401, affd 31 NY2d 810; see also, Matter of Reich v Webster, 105 AD2d 544, appeal dismissed 64 NY2d 1129). Accordingly, in our opinion, this is a timely CPLR article 78 proceeding.
We are unable to accept respondents’ claim that the instant proceeding was, in reality, one challenging the validity of respondent F. Stanton Ackerman’s designating petition and therefore subject to the 14-day time limitation within which to bring such a proceeding under Election Law § 16-102 (2). In support of this claim, respondents argue that the basis of the challenge, Ackerman’s residence, was gleaned from the designating petition on which both his name and address were listed (see, Election Law § 6-132 [1]). However, the designating petition simply lists Ackerman’s current address. Petitioners make no claim that the information provided was incorrect. Their only contention is that he did not reside there for the 12-month period required by NY Constitution, article III, § 7. Thus, petitioners are not challenging the information on the designating petition but rather are challenging Ackerman’s substantive qualifications to sit as a Member of the Assembly for the 103rd Assembly District (see, Matter of Reich v Web*331ster, supra; Matter of Spenser v Board of Educ., supra; Matter of Brayman v Stevens, 54 Misc 2d 974, affd 28 AD2d 1090, affd 20 NY2d 868). Moreover, NY Constitution, article III, § 7 sets forth, in addition to the 12-month residency requirement, the requirement that a candidate for the Assembly be a United States citizen and a resident of this State for five years. These latter two requirements are not required to be set forth in a designating petition. Thus, if a proceeding had been brought to challenge these qualifications, respondents clearly could not make the argument that such a challenge was in fact a challenge to the designating petition.
Respondents’ argument that the only remedy to challenge a candidate’s residency requirements is under NY Constitution, article III, § 9, which states that ”[e]ach house shall * * * be the judge of the elections, returns and qualifications of its own members”, should, in our opinion, be rejected. This might be true once the general election has taken place (see, Matter of Harwood v Meisser, 41 AD2d 531, affd 31 NY2d 1000). However, it should not be necessary to wait until after the general election before a candidate’s qualifications to hold office may be challenged (see, Matter of Reich v Webster, supra).
Although the goal of the Election Law is to prevent disenfranchisement of voters or costly delays or interruptions in the election process (see, Matter of Village of Herkimer v Republican Party, 119 Misc 2d 801, 804), the Democratic Party is not without remedy. If a vacancy occurs due to disqualification, the party committees may nominate a new candidate to run in the general election (see, Election Law §§ 6-148, 6-150; see also, Matter of Owens v Sharpton, 45 NY2d 794). On the other hand, it would be costly and wasteful to allow the election of an unqualified candidate.
Finally, it is the Election Law which provides the vehicle for presenting candidates to the voters so that they may select their representatives in the Legislature. Deciding who shall be their representatives is the duty assigned to the voters and, concomitantly, those same voters must assume responsibility for the actions of those chosen. To us it is axiomatic that if the voters are charged with ultimate responsibility for the actions of those selected to represent them, then the voters should have the right to assert objections to a designated candidate who is constitutionally disqualified to hold the office sought. A citizen, upon learning of a ground for disqualification, should not be confined to the highly technical and *332complex provisions of the Election Law in seeking relief. A citizen is protected by the Constitution, not the Election Law.
Specifically, it is, at best, unrealistic to impose the time restrictions set forth in the Election Law in a case such as this. According to the provisions of the Election Law, objections would have to be filed by a citizen within three days after the filing of the designating petition and a proceeding would have to be commenced within 14 days after the last day to file the petition (Election Law § 6-154 [2]; § 16-102). However, the requisite facts establishing disqualification could be unrelated to any information contained in the petition and may not be manifest until after the expiration of the time limitations imposed. Such an unreasonable result would not have been intended by the Legislature when appropriate relief is provided by employing the provisions of CPLR article 78.
Turning to the merits, we must conclude that Ackerman did not meet the residence requirements of NY Constitution, article III, §7. The facts as set forth by Ackerman are as follows. Before his marriage on November 3, 1984, he lived in an apartment outside of the 103rd Assembly District, and after that he moved into his wife’s apartment which was also located outside the district. In June 1985, he and his wife signed a contract for the purpose of constructing a home within the 103rd Assembly District. In July 1985, he purchased land adjoining the construction site. In September of that year, he entered into a month-to-month lease agreement on his apartment in anticipation of his moving. Ackerman believed the home would be finished in October 1985. He claims that if not for various delays, he would have been in the home by November 4, 1985 and that it was always his intention that the new home be his residence and domicile. He notes that he purchased fixtures and appliances for the new home, made frequent visits to the property, obtained title insurance, and told friends, family and associates of his intent to move there.
Ackerman did not sustain his burden of proving by clear and convincing evidence that his residence was within the 103rd Assembly District as of November 4, 1985 (see, 49 NY Jur 2d, Domicil and Residence," §47, at 47). Domicile and residence have been held to be synonymous under the Election Law (see, Matter of Isaacson v Heffernan, 189 Misc 16). Residence requires bodily presence in a given place while domicile requires bodily presence coupled with the intention of making it one’s domicile. Both are required and intention alone is not *333sufficient (supra, at p 18). Actual residence in the place chosen is required (49 NY Jur 2d, Domicil and Residence, § 10, at 13). "Mere land without a dwelling place does not establish a domicil” (49 NY Jur 2d, Domicil and Residence, § 2, at 7).
In this case, it is conceded that Ackerman did not move into his new home until January 1986.* It is submitted that his visits and planning, in light of the law as above set forth, were simply insufficient to show actual residence as of the time required under NY Constitution, article III, §7. Therefore, Special Term’s finding that Ackerman was not qualified to run as a candidate for Member of the Assembly from the 103rd Assembly District should not be disturbed. The judgment should be affirmed.
Mikoll and Harvey, JJ., concur with Casey, J.; Kane, J. P., and Main, J., dissent and vote to affirm in an opinion by Kane, J. P.
Judgment reversed, on the law, without costs, and petition dismissed.
Matter of Isaacson v Heffeman (189 Misc 16), which Ackerman cites for support, is inapposite insofar as it dealt with the special situation of members of the Armed Forces.