| Matter of Adrian v Board of Educ. of City School Dist. of City ofNiagara Falls |
| 2012 NY Slip Op 01293 [92 AD3d 1272] |
| February 17, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Roxanne Adrian, Respondent-Appellant, v Boardof Education of City School District of City of Niagara Falls et al.,Appellants-Respondents. |
—[*1] Richard E. Casagrande, Latham (Anthony J. Brock of counsel), forpetitioner-respondent-appellant.
Appeal and cross appeal from a judgment (denominated decision and order) of the SupremeCourt, Niagara County (Ralph A. Boniello, III, J.), entered October 5, 2010 in a proceedingpursuant to CPLR article 78. The judgment, among other things, directed respondents to reinstatepetitioner to her tenured position.
It is hereby ordered that said cross appeal is unanimously dismissed, the judgment is reversedon the law without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, toannul the determination terminating her employment with the City School District of City ofNiagara Falls (District) based on her failure to comply with the District's residency policy, whichrequires District employees to be domiciliaries of the City of Niagara Falls. We agree withrespondents on appeal that Supreme Court erred in granting the petition.
It is well established that a "domicile means living in [a] locality with intent to make it afixed and permanent home" (Matter of Newcomb, 192 NY 238, 250 [1908]; see Matter of Beck-Nichols v Bianco,89 AD3d 1405 [2011]). The evidence presented to respondent Board of Education of theDistrict (Board) was sufficient to establish that petitioner was not a domiciliary of the City.Although the record contains some support for petitioner's contention that she was domiciled inNiagara Falls, the determination of the Board that petitioner was actually domiciled inWilliamsville was not arbitrary and capricious, and it therefore should not have been disturbed(see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 230-231 [1974]). Petitionermaintained a phone line at the Williamsville residence but not at the Niagara Falls residence, andrecords from the Department of Motor Vehicles indicated that she lived at the Williamsvilleaddress. In addition, a surveillance company observed petitioner on six separate occasions,during different [*2]time periods, and found that she never wentto the Niagara Falls residence and always left from and returned to the Williamsville residence.Although petitioner presented some evidence demonstrating that the Niagara Falls residence mayhave been her domicile, e.g., her voter registration card, rent payment receipts, driver's licenseand cable statements, that evidence was not so overwhelming as to support the court'sdetermination granting the petition (see generally id.).
Finally, petitioner's cross appeal must be dismissed because she is not aggrieved by thejudgment on appeal, which granted the ultimate relief sought in the petition (see generallyTown of Massena v Niagara Mohawk Power Corp., 45 NY2d 482, 488 [1978]). To theextent that petitioner contends as an alternative ground for affirmance that the District improperlyfailed to conduct a hearing before terminating her (see generally Parochial Bus Sys. v Boardof Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), we reject that contention inasmuchas such a hearing was not required by law (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]).Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.