IN RE: Randy M. KRAJKOWSKI

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Randy M. KRAJKOWSKI, Petitioner–Respondent, v. Cynthia A. BIANCO, As Superintendent of Schools of City School District of City of Niagara Falls, Russell Petrozzi, as President of Niagara Falls Board of Education, Niagara Falls Board of Education, And School District of City of Niagara Falls, Respondents–Appellants.

Decided: June 10, 2011

PRESENT:  SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND MARTOCHE, JJ. Hurwitz & Fine, P.C., Buffalo (Michael F. Perley Of Counsel), for Respondents–Appellants. Reden & O'Donnell, LLP, Buffalo (Terry M. Sugrue Of Counsel), for Petitioner–Respondent.

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 A.D.3d 1636, 919 N.Y.S.2d 641), 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 N.Y. 238, 250, 84 N.E. 950).   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 N.Y.2d 447, 451, 626 N.Y.S.2d 32, 649 N.E.2d 1176, rearg. denied 85 N.Y.2d 1033, 631 N.Y.S.2d 292, 655 N.E.2d 405;  see Matter of Larkin v. Herbert, 185 A.D.2d 607, 608, 586 N.Y.S.2d 679).  “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 N.Y.2d at 451, 626 N.Y.S.2d 32, 649 N.E.2d 1176).

 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 N.Y. at 251, 84 N.E. 950;  see Hosley, 85 N.Y.2d at 452, 626 N.Y.S.2d 32, 649 N.E.2d 1176).   We thus conclude that the determination that petitioner changed his domicile from Niagara Falls to Lewiston was arbitrary and capricious (see Gigliotti, 82 A.D.3d 1636, 919 N.Y.S.2d 641).

 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 A.D.2d 1137, 1137–1138, 575 N.Y.S.2d 954 [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 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 234 N.E.2d 679).

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 A.D.2d 177, 191–192, 555 N.Y.S.2d 982).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: