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

570
CA 11-00923
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF JEFFREY TAMSEN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

OLIVIA A. LICATA, DIRECTOR, CITY OF BUFFALO
DEPARTMENT OF HUMAN RESOURCES, CIVIL SERVICE
DIVISION, AND CITY OF BUFFALO,
RESPONDENTS-APPELLANTS.


DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (CINDY T. COOPER
OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

LAW OFFICES OF W. JAMES SCHWAN, BUFFALO (W. JAMES SCHWAN OF COUNSEL),
FOR PETITIONER-RESPONDENT.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Erie County (Gerald J. Whalen, J.), dated April 14,
2011 in a proceeding pursuant to CPLR article 78. The judgment, among
other things, denied the motion of respondents to dismiss the
petition.

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

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
challenging the determination that found him to be ineligible for
appointment as a firefighter in respondent City of Buffalo (City)
based on his failure to satisfy the residency requirements set forth
in Rule 10 of the City’s Classified Civil Service Rules (hereafter,
Rule 10). The relevant underlying facts are not in dispute.
Petitioner owned and resided in a two-family residence located in the
City for approximately seven years prior to applying for a position as
a City firefighter in March 2008. Petitioner thereafter passed a
civil service test administered by the City and was placed on the
eligibility list to become a firefighter. In May 2009, while still on
the eligibility list but before his appointment as a firefighter,
petitioner and his wife purchased a residence in the Town of Amherst.
On September 4, 2009, petitioner was appointed to the position of
firefighter and began training at the Firefighter Academy (Academy).
While at the Academy, however, petitioner sustained an injury that
prevented him from completing the necessary training. In April 2010,
the City informed petitioner that he was being reinstated to the
eligibility list, that he would be appointed as a firefighter, and
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                                                         CA 11-00923

that he would begin training again at the next Academy class,
scheduled to commence on April 18, 2011. On March 21, 2011, however,
the City notified petitioner that it was “disqualifying” him from
eligibility for appointment as a firefighter based upon his failure to
meet the residency requirements of Rule 10. After his administrative
appeal was denied, petitioner commenced this proceeding seeking a
judgment directing respondent Olivia A. Licata, Director, City of
Buffalo Department of Human Resources, Civil Service Division, and the
City (collectively, City) to restore him to the eligibility list and
to enroll him in the training Academy scheduled for April 18, 2011.

     The City filed a pre-answer motion to dismiss, contending that
the petition failed to state a cause of action and that the City’s
determination to disqualify petitioner was not arbitrary or
capricious. The City offered various items of evidence in support of
the motion, and petitioner in turn offered evidence in opposition
thereto. Following oral argument, the court denied the motion and
directed the City to restore petitioner to the eligibility list and
enroll him in the Academy class scheduled for April 18, 2011. The
court ruled that the City’s determination that petitioner failed to
comply with Rule 10 was arbitrary and capricious. We affirm.

     We note at the outset that the City relied exclusively on Rule 10
of its Classified Civil Service Rules to disqualify petitioner.
Although counsel for the City referred during oral argument in Supreme
Court to the more onerous residency requirement set forth in the
examination announcement, the written notice of disqualification sent
to petitioner cited only Rule 10, and the court’s decision was based
solely on the applicability of Rule 10. In fact, in its brief on
appeal the City refers to Rule 10 and not the residency requirements
of the examination announcement. Thus, as the court determined, the
issue presented is whether the City’s determination that petitioner
failed to comply with Rule 10 was arbitrary and capricious.

     Rule 10 provides that “[a]n applicant for any open competitive
position must reside and be domiciled within the corporate limits of
the City of Buffalo on the date of his or her application for
examination or appointment, as the case may be, except as may be
otherwise provided by law.” The rule further provides that, “[i]n the
absence of clear and convincing evidence to the contrary, an applicant
shall be deemed a non-resident if he or she cannot show ninety (90)
days of continuous and uninterrupted residence within the corporate
limits of the City . . . immediately preceding the date of his or her
application for examination or appointment as the case may be.”

     Here, there is no dispute that petitioner was a City resident
when he applied for the firefighter position in March 2008, and that
he had been a City resident for at least 90 days without interruption
prior to the date of his application. This case, however, turns on
whether petitioner was a City resident for 90 days immediately
preceding the date of his “appointment.” The court used April 18,
2011 as the date of petitioner’s appointment, inasmuch as that is the
date on which he was scheduled to begin training at the Academy.
Notably, the City does not contend on appeal that the court erred in
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                                                         CA 11-00923

selecting April 18, 2011 as the date of appointment for purposes of
applying Rule 10. It thus follows that petitioner, to comply with
Rule 10, must have been a City resident from January 18, 2011 through
April 18, 2011, without interruption. As the court determined, the
City produced no evidence indicating that petitioner lived outside the
City during that relevant time period. Instead, the City’s evidence
tended to show that petitioner may have lived in the Town of Amherst
at some time between the date of his application in March 2008 and
January 18, 2011.

     In support of its motion to dismiss, the City’s attorney argued
that petitioner was properly disqualified because he failed to
maintain a continuous residence from the date of his application in
March 2008 until the date of his appointment in April 2011. Rule 10,
however, does not require petitioner to maintain continuous residence
within the City from the date of application to the date of
appointment; it requires petitioner to maintain residence for 90 days
prior to the date of application or the date of appointment, as the
case may be. He satisfied that requirement on both counts. First,
with respect to the 90-day application requirement, it is undisputed
that petitioner resided in the City before his application in March
2008, inasmuch as he did not purchase the residence in Amherst until
May 2009. Second, with respect to the 90-day appointment requirement,
as the court properly determined, the City presented no evidence that
petitioner did not reside in the City from January 18, 2011 to April
18, 2011. Although the examination announcement stated that
applicants must maintain continuous residence within the City from the
date of application to the date of appointment, as noted the City did
not rely on the notice set forth in the examination announcement to
disqualify petitioner. We therefore agree with the court that the
City’s determination to disqualify petitioner based on his purported
failure to comply with Rule 10 was arbitrary and capricious. Even
assuming, arguendo, that petitioner maintained dual residences during
the 90 days immediately prior to his appointment, we conclude that the
evidence nevertheless established that he was domiciled in the City
and that the evidence did not establish that petitioner evinced “a
present, definite and honest purpose to give up the old and take up
the new place as [his] domicile” (Matter of Newcomb, 192 NY 238, 251).

     We reject the City’s contention that the court erred in refusing
to allow it to file an answer after denying its motion to dismiss.
Where, as here, “the facts are so fully presented in the papers of the
respective parties that it is clear that no dispute as to the facts
exists and no prejudice will result from the failure to require an
answer,” a court may grant the relief requested in the petition
without permitting an answer to be filed (Matter of Nassau BOCES Cent.
Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63
NY2d 100, 102). Finally, we reject the contention of the City that
the court lacked the authority to order petitioner’s reinstatement as
a firefighter. By ordering petitioner to be reinstated, the court was
merely restoring petitioner to the same position before the City made
its arbitrary and capricious administrative determination.
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                                           CA 11-00923




Entered:   April 27, 2012         Frances E. Cafarell
                                  Clerk of the Court
