| Matter of Beck-Nichols v Bianco |
| 2011 NY Slip Op 07968 [89 AD3d 1405] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Karri Beck-Nichols, Petitioner, v Cynthia A.Bianco, Superintendent, Schools of City School District, City of Niagara Falls, et al., Respondents. |
—[*1] Hurwitz & Fine, P.C., Buffalo (Michael F. Perley of counsel), for respondents.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the SupremeCourt in the Fourth Judicial Department by order of the Supreme Court, Erie County [Frank A. Sedita,Jr., J.], entered July 8, 2010) to review a determination of respondents. The determination, amongother things, terminated petitioner's employment with the School District of Niagara Falls.
It is hereby ordered that the determination so appealed from is unanimously annulled on the lawwithout costs and the petition is granted.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annulthe determination terminating her employment as a production control manager with respondent SchoolDistrict of Niagara Falls (District) based on her failure to comply with the District's residency policy.Pursuant to that policy, District employees must be domiciliaries of the City of Niagara Falls. Weconclude that the determination must be annulled and the petition granted.
We note at the outset that Supreme Court improperly transferred the proceeding to this Court. Thetransfer of a CPLR article 78 proceeding to the Appellate Division is permitted only when there is anissue whether a determination is "supported by substantial evidence" (CPLR 7803 [4]; see7804 [g]). We have previously determined that the residency policy termination procedure at issue inthis case "does not involve a substantial evidence issue requiring transfer to this Court" (Matter of Krajkowski v Bianco, 85 AD3d1577, 1578 [2011]; see Matter ofGigliotti v Bianco, 82 AD3d 1636, 1638 [2011]). Nevertheless, we exercise our discretion toreach the merits of the petition "in the interest of judicial economy" (Matter of Femia v Administrative Appeals Bd. of N.Y. State Dept. of MotorVehs., 42 AD3d 951, 951 [2007]).
As we set forth in Krajkowski (85 AD3d 1577) and Gigliotti (82 AD3d at 1637),it is well [*2]established that "domicile means living in [a] locality withintent to make 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 clear andconvincing 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 in fact andan 'absolute and fixed intention' to abandon the former and make the new locality a fixed andpermanent home" (Hosley, 85 NY2d at 451, quoting Newcomb, 192 NY at 251).
Here, it is undisputed that petitioner was domiciled in Niagara Falls when she became a Districtemployee in 1994. According to respondents, however, petitioner changed her domicile to Lewiston,New York at some point after she and her husband acquired property there in 2001. The evidencepresented to respondent Niagara Falls Board of Education established that, at the time of thedetermination, petitioner owned properties in Niagara Falls and Lewiston. Although petitioner'shusband and children lived full-time at the Lewiston home, petitioner averred that she lived at theNiagara Falls home. Respondents' surveillance indicated that petitioner split her time between NiagaraFalls and Lewiston, spending the night at the Niagara Falls home on the majority of nights preceding herwork days. Petitioner used her Niagara Falls address for her New York State driver's license and toregister to vote, and she offered documentary proof that she pays utilities in her name at the NiagaraFalls home and has a home equity line of credit on that home.
Although the surveillance established that petitioner owns multiple properties and has dualresidency in Niagara Falls and Lewiston, it is well established that an individual may have dual residencywithout necessarily effecting a change in his or her domicile (see Newcomb, 192 NY at 250).In addition, petitioner was free to have a domicile different than that of her husband (see generallyDomestic Relations Law § 61). We conclude that the evidence failed to establish thatpetitioner evinced "a present, definite and honest purpose to give up the old and take up the new placeas [her] domicile" (Newcomb, 192 NY at 251; see Hosley, 85 NY2d at 452). Thus,respondents' determination that petitioner changed her domicile from Niagara Falls to Lewiston wasarbitrary and capricious (see Krajkowski, 85 AD3d at 1578; Gigliotti, 82 AD3d at1637-1638). Present—Smith, J.P., Carni, Lindley, Sconiers and Martoche, JJ.