Krajkowski v. Bianco , 925 N.Y.S.2d 735 ( 2011 )

Appeal from a judgment (denominated judgment and order) of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered May 25, 2010 in a proceeding pursuant to CPLR article 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 without costs.

Memorandum: In this CPLR article 78 proceeding, petitioner sought, inter alia, to annul the determination terminating his employment as a network engineer with respondent School District of City of Niagara Falls (District) based on his failure to comply with the District’s residency policy. 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 of Gigliotti v Bianco (82 AD3d 1636 [2011]), it is well established that “domicile means living in [a] locality with intent 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 a party . . . alleging a change in domicile has the burden to prove the change by clear and convincing evidence” (Matter of Hosley v Curry, 85 NY2d 447, 451 [1995], rearg denied 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 and an ‘absolute and fixed intention’ to abandon the former and make the new locality a fixed and permanent home” (Hosley, 85 NY2d at 451).

Here, the evidence presented to respondent Niagara Falls Board of Education established that petitioner owned properties in Niagara Falls and Lewiston, New York. He resided, however, in Niagara Falls. Petitioner’s vehicle was registered in Niagara Falls, he paid utility bills for his residence there, he had a driver’s license listing that address and he was registered to vote in Niagara Falls. Petitioner’s wife lived at the couple’s Lewiston residence, and the surveillance conducted by respondents on five separate occasions during 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 petitioner owns multiple properties does not establish that petitioner evinces a “present, definite and honest purpose to give up the old and take up the new place as [his] domicile” (Newcomb, 192 NY at 251; see Hosley, 85 NY2d at 452). We thus conclude that the determination that petitioner 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 evidence issue requiring transfer to this Court (see CPLR 7803 [4]; 7804 [g]). A substantial evidence issue “ ‘arises only where a quasi-judicial hearing has been held and evidence taken pursuant to law‘ ” (Matter of Bonded Concrete v Town Bd. of Town of Rotterdam, 176 AD2d 1137, 1137-1138 [1991] [emphasis added]). Here, the District did not conduct a hearing before terminating petitioner’s employment, nor was such a hearing “required by 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 petitioner costs and disbursements (see CPLR 8101, 8301 [a]; see generally Matter of Birnbaum v Birnbaum, 157 AD2d 177, 191-192 [1990]). Present — Smith, J.P., Peradotto, Garni, Sconiers and Martoche, JJ.