| Matter of Gigliotti v Bianco |
| 2011 NY Slip Op 02206 [82 AD3d 1636] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Vincent F. Gigliotti, Respondent, v Cynthia A.Bianco, as Superintendent of Schools of City School District of City of Niagara Falls, et al.,Appellants. |
—[*1] Reden & O'Donnell, LLP, Buffalo (Terry M. Sugrue of counsel), forpetitioner-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Tracey A. Bannister, J.),entered March 19, 2010 in a proceeding pursuant to CPLR article 78. The judgment granted thepetition.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the award of attorneys' fees and as modified the judgment is affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, toannul the determination terminating his employment with respondent School District of City ofNiagara Falls (District) for failure to comply with the District's residency policy, which requiresDistrict employees to be domiciliaries of the City of Niagara Falls. Supreme Court properlygranted the petition. It is well established that "domicile means living in [a] locality with intent tomake it a fixed and permanent home" (Matter of Newcomb, 192 NY 238, 250 [1908]).Further, "[a]n existing domicile . . . continues until a new one is acquired, and aparty . . . alleging a change in domicile has the burden to prove the change by clearand convincing evidence" (Matter of Hosley v Curry, 85 NY2d 447, 451 [1995], reargdenied 85 NY2d 1033 [1995]; see Matter of Larkin v Herbert, 185 AD2d 607, 608[1992]). "For a change to a new domicile to be effected, there must be a union of residence infact and an 'absolute and fixed intention' to abandon the former and make the new locality a fixedand permanent home" (Hosley, 85 NY2d at 451, quoting Newcomb, 192 NY at251; see Matter of Johnson v Town ofAmherst, 74 AD3d 1896 [2010], lv denied 15 NY3d 712 [2010]).
Here, the evidence presented to respondent Niagara Falls Board of Education established that[*2]petitioner was a lifelong resident of Niagara Falls. Beginningin 1992 or 1993, petitioner resided with his elderly mother at a residence in Niagara Falls afterhis divorce from his first wife. In April 2007, while he was temporarily laid off from hisemployment with the District, petitioner married his longtime girlfriend, in part because he wasat risk of losing his health benefits. Petitioner and his wife agreed that petitioner would continueto live in Niagara Falls with his mother, while his wife would continue to live at her residence inRansomville, New York, which she purchased before the marriage. Petitioner's personal effectsremained at his residence in Niagara Falls, although he keeps a set of golf clubs and someclothing at his wife's residence in Ransomville. Petitioner resides with his wife in Ransomvilleon weekends. Petitioner listed the Niagara Falls address on, inter alia, his federal income taxforms, his New York State driver's license, his social security card, his marriage certificate, andbank and credit statements. Moreover, petitioner's vehicle is registered at the Niagara Fallsaddress, and he is registered to vote in Niagara Falls. We thus conclude that the determinationthat petitioner changed his domicile from Niagara Falls to Ransomville was arbitrary andcapricious (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]).
Contrary to respondents' contention, this proceeding does not involve a substantial evidenceissue requiring transfer to this Court (see CPLR 7803 [4]; 7804 [g]). A substantialevidence issue " 'arises only where a quasi-judicial hearing has been held and evidence takenpursuant to law' " (Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176AD2d 1137, 1137-1138 [1991]). Here, the District did not conduct a hearing before terminatingpetitioner's employment, nor was such a hearing "required by statute or law" (Matter ofColton v Berman, 21 NY2d 322, 329 [1967]; see Matter of O'Connor v Board of Educ. of City School Dist. of City ofNiagara Falls, 48 AD3d 1254 [2008], lv dismissed 10 NY3d 928 [2008]; see generally Matter of Felix v New YorkCity Dept. of Citywide Admin. Servs., 3 NY3d 498, 501 [2004]).
We agree with respondents, however, that the court erred in awarding attorneys' fees topetitioner, and we therefore modify the judgment accordingly. "In New York the general rule isthat each litigant is required to absorb the cost of his [or her] own attorney[s'] fees. . . in the absence of a contractual or statutory liability" (Larsen v Rotolo, 78 AD3d 1683,1683-1684 [2010] [internal quotation marks omitted]). Petitioner contends, however, that theaward is warranted as a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1. We rejectthat contention. A court may award attorneys' fees pursuant to that regulation "only upon awritten decision setting forth the conduct on which the award . . . is based, thereasons why the court found the conduct to be frivolous, and the reasons why the court found theamount awarded . . . to be appropriate" (22 NYCRR 130-1.2; see Ikeda v Tedesco, 70 AD3d1498 [2010]) and, here, the court failed to disclose its basis for awarding attorneys' fees topetitioner (see Carnicelli v Carnicelli, 300 AD2d 1093 [2002]). Present—Smith,J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.