Daniel Hurtubise, the Democratic candidate for Boston town justice, is challenging Justice Debra Bender's right to seek re-election, contending she no longer lives in the town.
State Supreme Court Justice John F. O'Donnell is scheduled to hear Hurtubise's challenge at 2:30 p.m. Monday.
Hurtubise is trying to have Bender thrown off the ballot. He says that since her house on Eddy Road was sold in October, she has lived in Orchard Park.
On election forms, she lists her home address as 8634 Zimmerman Road, which Hurtubise said is her parents' residence.
"She just doesn't live there. She eats and sleeps and takes care of her children in Orchard Park," Hurtubise said. "She is the sitting judge in the Town of Boston, and according to state law, she must maintain her residency through her term of office. That she has not done."
Bender referred questions to Bradley Stamm, her attorney, who declined to comment beyond saying he will seek to have the motion dismissed.
In a letter to Boston residents before the Sept. 25 primary, Bender said her family had sold its home and hoped to buy another in Boston within the Orchard Park School District. Because they had been unable to buy an existing home, they had signed a contract to build a home on family land on Eddy Road.
Bender said she had established her legal residence at the Zimmerman Road address.
Hurtubise said she actually lives at 14 Bruce Drive in Orchard Park, the address listed on the Springville Country Club's membership roster.
Bender has the Republican, Independence, Conservative, Liberal, Right to Life and Working Families parties' lines in the Nov. 6 election.
Bender, a 45-year-old attorney with a practice in Orchard Park, has been town justice since 1998, after having been deputy town attorney and town prosecutor since 1996.
Hurtubise, the former operator of Hurtubise Tire Southtowns in Hamburg, is semiretired.
A major issue in the race has been whether the town needs an attorney as town justice.
"In these complicated times, the laws and legal procedures before the court have become numerous and complex," Bender, a former Erie County assistant district attorney, says in her campaign materials. "Having a legal education, legal training and legal experience are positive factors in running the court and to best serve this community."
Hurtubise said 18 municipalities in Erie County have justices who are not lawyers and questioned whether Bender, whose law firm advertises handling driving-while-intoxicated cases, traffic violations and misdemeanors, should serve as a judge in the same kind of cases.
"Some people say: 'How can you do that? You're not an attorney,' " Hurtubise said. "I say, the majority of cases are traffic court. There'll be misdemeanors and some other cases, but felonies are done at the county level . . . and the state trains you."