| Matter of Ball v City of Syracuse |
| 2009 NY Slip Op 02039 [60 AD3d 1312] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Larry Ball et al., Appellants-Respondents, v Cityof Syracuse et al., Respondents-Appellants. |
—[*1] Rory A. McMahon, Corporation Counsel, Syracuse (Nancy J. Larson of counsel), forrespondents-respondents-appellants.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (DeborahH. Karalunas, J.), entered February 20, 2008 in a proceeding pursuant to CPLR article 78. Theorder, among other things, denied respondents' motion to dismiss the petitions.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners commenced these CPLR article 78 proceedings, which have sincebeen consolidated, alleging that they were wrongfully terminated from their employment withrespondent City of Syracuse (City). They further alleged that respondents acted arbitrarily byinterpreting the City Charter to require a "domicile" in the City rather than a "residence" in theCity. Attached to the petitions were various documents, including memoranda indicating that theCity's policy pursuant to City Charter § 8-112 (2) is to require that all employees have an"actual principal domicile" in the City. Respondents moved to dismiss the petitions pursuant toCPLR 3211 (a) (7), and Supreme Court converted the motion to an objection in point of lawpursuant to CPLR 7804 (f). The court further determined that the City's interpretation of theresidency requirement in City Charter § 8-112 (2) was "valid and consistent with law" butdenied the motion to dismiss the petitions. We note at the outset that, although no appeal or crossappeal lies as of right from a nonfinal intermediate order in a CPLR article 78 proceeding, wetreat the notice of appeal and notice of cross appeal as applications for permission to appeal, andwe grant such permission (see Matter of Engelbert v Warshefski, 289 AD2d 972 [2001]).
Petitioners have submitted documentary evidence establishing that the policy of the Cityrequires all city employees to be domiciled in the City, and the City does not dispute thatpetitioners have accurately set forth its policy. We conclude that the court properly determinedthat the City Charter is valid and consistent with the law (see Mandelkern v City ofBuffalo, 64 [*2]AD2d 279, 280 [1978]). Petitioners'contention that the court improperly relied on extrinsic evidence in determining the issue iswithout merit. Indeed, petitioners themselves submitted documents along with the petitions withrespect to the policy, and the court properly took judicial notice of the local rules and regulationsof an executive department (see Matter of Phillies, 12 NY2d 876 [1962]).
"In determining motions to dismiss in the context of [a CPLR] article 78 proceeding, a courtmay not look beyond the petition and must accept all allegations in the petition as true. . . where, as here, no answer or return has been filed" (Matter of Scott vCommissioner of Correctional Servs., 194 AD2d 1042, 1043 [1993]). Here, there is noevidence in the record with respect to the actual domicile of the petitioners, and we thusconclude that the court properly denied respondents' motion to dismiss the petitions based on therecord before it. Present—Scudder, P.J., Martoche, Centra, Fahey and Peradotto, JJ.