| Matter of Krajkowski v Bianco |
| 2011 NY Slip Op 04860 [85 AD3d 1577] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Randy M. Krajkowski, 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 (denominated judgment and order) of the Supreme Court, ErieCounty (Frederick J. Marshall, J.), entered May 25, 2010 in a proceeding pursuant to CPLRarticle 78. The judgment granted the petition for reinstatement with back pay and benefits.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: In this CPLR article 78 proceeding, petitioner sought, inter alia, to annul thedetermination terminating his employment as a network engineer with respondent School Districtof City of Niagara Falls (District) based on his failure to comply with the District's residencypolicy. That policy requires District employees to be domiciliaries of the City of Niagara Falls.Supreme Court properly granted the petition.
As we set forth in Matter ofGigliotti v Bianco (82 AD3d 1636 [2011]), it is well established that "domicile meansliving in [a] locality with intent to make it a fixed and permanent home" (Matter ofNewcomb, 192 NY 238, 250 [1908]). Further, "[a]n existing domicile . . .continues until a new one is acquired, and a party . . . alleging a change in domicilehas the burden to prove the change by clear and convincing evidence" (Matter of Hosley vCurry, 85 NY2d 447, 451 [1995], rearg denied 85 NY2d 1033 [1995]; see Matterof Larkin v Herbert, 185 AD2d 607, 608 [1992]). "For a change to a new domicile to beeffected, there must be a union of residence in fact and an 'absolute and fixed intention' toabandon the former and make the new locality a fixed and permanent home" (Hosley, 85NY2d at 451).
Here, the evidence presented to respondent Niagara Falls Board of Education established[*2]that petitioner owned properties in Niagara Falls andLewiston, New York. He resided, however, in Niagara Falls. Petitioner's vehicle was registeredin Niagara Falls, he paid utility bills for his residence there, he had a driver's license listing thataddress and he was registered to vote in Niagara Falls. Petitioner's wife lived at the couple'sLewiston residence, and the surveillance conducted by respondents on five separate occasionsduring a three-month period indicated that petitioner spent two nights at the Lewiston residence.We conclude, however, that the evidence obtained by that surveillance and the fact that petitionerowns multiple properties does not establish that petitioner evinces a "present, definite and honestpurpose to give up the old and take up the new place as [his] domicile" (Newcomb, 192NY at 251; see Hosley, 85 NY2d at 452). We thus conclude that the determination thatpetitioner changed his domicile from Niagara Falls to Lewiston was arbitrary and capricious(see Gigliotti, 82 AD3d 1636).
In addition, as in Gigliotti, 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 ofRotterdam, 176 AD2d 1137, 1137-1138 [1991] [emphasis added]). Here, the District did notconduct a hearing before terminating petitioner's employment, nor was such a hearing "requiredby statute or law" (Matter of Colton v Berman, 21 NY2d 322, 329 [1967]).
Finally, we reject respondents' further contention that the court erred in awarding petitionercosts and disbursements (see CPLR 8101, 8301 [a]; see generally Matter of Birnbaumv Birnbaum, 157 AD2d 177, 191-192 [1990]). Present—Smith, J.P., Peradotto, Carni,Sconiers and Martoche, JJ.