        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

347
CA 11-01231
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF JAMES D. PECK,
PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN BOARD OF TOWN OF AMHERST,
RESPONDENT-DEFENDANT-RESPONDENT,
ET AL., RESPONDENT-DEFENDANT.


TRONOLONE & SURGALLA, P.C., BUFFALO (GERARD A. STRAUSS OF COUNSEL),
FOR PETITIONER-PLAINTIFF-APPELLANT.

E. THOMAS JONES, TOWN ATTORNEY, WILLIAMSVILLE (PATRICK M. KELLY OF
COUNSEL), FOR RESPONDENT-DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated decision and order) of the
Supreme Court, Erie County (Patrick H. NeMoyer, J.), dated May 24,
2010 in a CPLR article 78 proceeding and a declaratory judgment
action. The judgment dismissed the petition/complaint.

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

     Memorandum: Petitioner-plaintiff (petitioner) commenced this
hybrid CPLR article 78 proceeding and declaratory judgment action
seeking, inter alia, to annul the determination of respondent-
defendant Town Board of Town of Amherst (Board) to terminate his
employment with the Town of Amherst (Town) based on his failure to
satisfy the residency requirements set forth in Chapter 45 of the Code
of the Town of Amherst (Town Code). Pursuant to Town Code § 45-3,
“any person who enters Town service . . . shall be a resident of the
Town on the date that the employee enters Town service and shall
thereafter maintain residence in the Town as a condition of employment
. . . Failure to establish or maintain Town residence as required by
this section shall constitute a forfeiture of employment . . . .” The
Town Code defines “[r]esidence” as “[d]omicile” and “[r]esident” as
“[d]omiciliary” (§ 45-2).

     The first cause of action alleged that the Board’s determination
was arbitrary and capricious, and the third cause of action alleged
that the Board failed to make findings of fact in support of its
determination. Supreme Court, inter alia, dismissed various causes of
action “and/or” declared that they were without merit and, with
respect to the first and third causes of action, held the case in
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                                                         CA 11-01231

abeyance and remitted the matter to the Board “for a fuller
explication of its rationale for determining that petitioner” failed
to satisfy the residency requirements. The Town thereafter invited
petitioner to appear before the Board and present evidence of his
domicile within the Town, but neither petitioner nor his attorney
appeared at that meeting. Petitioner’s attorney subsequently
submitted documentary evidence that allegedly established petitioner’s
domicile in the Town. Upon receipt of the amplified findings of fact
made by the Board, the court dismissed the remaining causes of action,
determining that the Board’s determination was not arbitrary and
capricious.

     Petitioner contends that the court erred in remitting the matter
to the Board for further findings of fact. According to petitioner,
the court was instead required to annul the determination when it
concluded that the Board failed to make sufficient findings of fact.
We reject that contention (see e.g. Matter of Snyder Dev. Co. v Town
of Amherst Town Bd., 2 AD3d 1383, 1384; Matter of Baker v Town of Mt.
Pleasant, 92 AD2d 611). Petitioner was not prejudiced by the remittal
inasmuch as, in doing so, the court effectively extended the date for
him to establish a domicile in the Town. The remittal also afforded
petitioner another opportunity to answer questions from the Board
concerning his claim that he was domiciled within the Town and to
submit additional evidence in support of that claim.

     We further conclude that the Board’s determination that
petitioner was not domiciled within the Town was not arbitrary and
capricious. “An existing domicile, whether of origin or selection,
continues until a new one is acquired, and a party, [such] as
petitioner here, 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, rearg denied 85 NY2d 1033). “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” (id., quoting Matter
of Newcomb, 192 NY 238, 251; see Matter of Johnson v Town of Amherst,
74 AD3d 1896, 1897, lv denied 15 NY3d 712).

     Here, it is undisputed that petitioner was not domiciled in the
Town when he was hired, nor was he domiciled there for at least two
years after that time. The Town granted petitioner two six-month
extensions to meet the residency requirements, but it denied his
requests for further extensions. When the Town indicated that it
intended to enforce the residency requirements against him, petitioner
asserted that he had established domicile by renting a room in a house
located within the Town. Petitioner, however, had previously
acknowledged that renting that room would not satisfy the Town’s
residency requirements. In any event, the documentary evidence
submitted to the Board by petitioner failed to establish that he had
changed his domicile to the Town. After the matter was remitted to
the Board for further findings of fact, the Board invited petitioner
to its next meeting and requested that he submit certain evidence
establishing his residency, including a copy of the lease for the room
he was renting in the Town, a letter from his landlord describing the
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                                                         CA 11-01231

premises and the portion rented to petitioner, any utility bills
indicating his new address, and interior and exterior photographs of
the premises and his living quarters. Petitioner failed to submit any
of the requested evidence and, as noted, he did not appear at the
Board meeting.

     Petitioner places great emphasis on the facts that he informed
the Town that he instructed his bankruptcy attorney to assist him in
surrendering his home in the City of Buffalo to his creditors, and
that he thereafter informed the Town that he was “losing” his home to
creditors. According to petitioner, those facts demonstrate that he
intended to make the single room that he rented in a house in the Town
his domicile. There is no evidence in the record, however, supporting
petitioner’s assertions that he was in the process of losing his home
in Buffalo to creditors. Indeed, petitioner failed to submit any such
evidence to the Board when the matter was remitted and he was given
the opportunity to provide any “documentation relevant” to his
residency within the Town. In any event, the mere fact that
petitioner may have been losing his home in Buffalo did not standing
alone establish that his domicile was in the Town.




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
