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

429
CA 12-01495
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF SANDRA BOWMAN,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS AND DONNA OWENS, CITY
ADMINISTRATOR, RESPONDENTS-APPELLANTS.


CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M.
MAZUR OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (E. JOSEPH GIROUX, JR., OF
COUNSEL), FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered May 14, 2012 in a
proceeding pursuant to CPLR article 78. The judgment granted the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination terminating her
employment with the City of Niagara Falls (City) based on her failure to
comply with the City’s residency requirement, which requires City
employees to reside in the City. We agree with respondents that Supreme
Court erred in granting the petition.

     Initially, we reject respondents’ contention that the court should
have dismissed the petition because petitioner waived her right to
reinstatement by signing a “last chance agreement.” The agreement
provided, in relevant part, that any future violation of the residency
requirement “may result in your termination following a due process
hearing. If you are found to have violated the residency requirement at
that time, you hereby waive your right to be reinstated, under any
circumstances, as identified under Section 5 of the Local Law.” Section
5 of Local Law No. 7 (1984) (hereafter, Local Law No. 7), which was
removed from the law in 2009, provided that an employee who was forced
to resign upon violation of the residency requirement could reestablish
residency and thereafter apply for reinstatement to his or her former
position. Here, petitioner does not seek reinstatement “as identified
under Section 5 of the Local Law,” which in any event is no longer in
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                                                         CA 12-01495

effect. Rather, petitioner seeks reinstatement on the ground that,
inter alia, respondents’ determination was arbitrary and capricious and
the residency requirement is inconsistently enforced.

     We agree with respondents, however, with respect to the merits. As
we noted in Matter of Alexis v City of Niagara Falls (___ AD3d ___ [May
3, 2013]), the Court of Appeals has written that “the proper standard
for judicial review in these cases is whether the . . . determination
was arbitrary and capricious or an abuse of discretion (see CPLR 7803
[3]). This standard is, of course, an extremely deferential one: The
courts cannot interfere [with an administrative tribunal’s exercise of
discretion] unless there is no rational basis for [its] exercise . . .
or the action complained of is arbitrary and capricious, [a test which]
chiefly relates to whether a particular action should have been taken or
is justified . . . and whether the administrative action is without
foundation in fact” (Matter of Beck-Nichols v Bianco, 20 NY3d 540, 559
[internal quotation marks omitted]).

     Here, we conclude that respondents’ determination that petitioner
violated the City’s residency requirement was neither arbitrary and
capricious nor an abuse of discretion (see id.). Local Law No. 7, as
amended, defines “residency” as “the actual principal place of residence
of an individual, where he or she normally sleeps; normally maintains
personal and household effects; the place listed as an address on voter
registration; and the place listed as his or her address for driver’s
license and motor vehicle registration, if any” (Local Law No. 7 § 2
[emphasis added]). As we wrote in Alexis, we agree with respondents
that the phrase “actual principal place of residence” “is akin to, if
not synonymous with, the legal concept of ‘domicile,’ i.e., ‘living in
[a] locality with intent to make it a fixed and permanent home’ ” (id.
at ___, quoting Matter of Newcomb, 192 NY 238, 250). We further agree
with respondents that they sufficiently established that petitioner’s
“actual principal place of residence” was in the Town of Niagara (Local
Law No. 7 § 2; see Matter of Adrian v Board of Educ. of City Sch. Dist.
of City of Niagara Falls, 92 AD3d 1272, 1272, affd sub nom. Beck-Nichols
v Bianco, 20 NY3d 540).

     The City hired a surveillance company, which observed petitioner on
22 separate occasions over a 13-day period in October and November 2009,
and on two additional occasions in September 2010. On eight of the 10
weekday mornings that petitioner was under surveillance, she was a
passenger in a vehicle that was driven from a Town of Niagara (Niagara)
address to another Niagara address. Upon arriving at the second
address, petitioner opened the garage door, entered her vehicle, and
drove to work. On each of those eight mornings, the investigators had
arrived at the first Niagara address between 6:30 a.m. and 7:15 a.m. On
each of the eight weekday afternoons that petitioner was under
observation, she drove from work to the second Niagara address. On one
of those afternoons, petitioner was observed driving from work to the
first Niagara address and then, at about 6:00 p.m., driving from that
address to the second Niagara address, whereupon she parked her vehicle
in the garage and entered a different vehicle as a passenger. On the
two mornings that petitioner was observed in September 2010, she drove
directly from the first Niagara address to work. Both times, the
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                                                         CA 12-01495

investigator established that her vehicle was in the driveway of the
first Niagara address as of 6:15 a.m. or 6:30 a.m.

     Under these circumstances, we conclude that respondents’
determination was not arbitrary and capricious because there is
substantial evidence, based on the surveillance on 10 out of the 12
mornings in 2009 and 2010, that petitioner actually resided and
“normally [slept]” at the first Niagara address. Although petitioner
produced documents listing a City residence as her address, “that
evidence was not so overwhelming as to support the court’s determination
granting the petition” (Adrian, 92 AD2d at 1273). Rather, under the
“extremely deferential” standard applied in reviewing administrative
determinations (Beck-Nichols, 20 NY3d at 559), the City’s determination
that petitioner’s actual principal place of residence was outside the
City is not “without foundation in fact” (id.), and the City “rationally
concluded that [petitioner] did not comply with the residency policy”
(id. at 561).

     Finally, we agree with respondents that the court erred in
determining that the residency requirement is unenforceable (see
generally id. at 557-558).




Entered:   June 7, 2013                         Frances E. Cafarell
                                                Clerk of the Court
