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

424
CA 12-01336
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF ANGEL ALEXIS,
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 (Catherine Nugent Panepinto, J.), entered March 29, 2012
in a CPLR article 78 proceeding. The judgment granted the petition and
directed the reinstatement of petitioner to employment.

     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.

     As the Court of Appeals wrote in Matter of Beck-Nichols v Bianco
(___ NY3d ___, ___ [Feb. 19, 2013]), which involved the Niagara Falls
City School District’s residency requirement, “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” (internal quotation marks omitted). We conclude
that the City’s determination that petitioner failed to maintain
“residency” in the City as that term is defined by Local Law No. 7
                                 -2-                           424
                                                         CA 12-01336

(1984) (hereafter, Local Law No. 7) was neither “arbitrary and
capricious [n]or an abuse of discretion,” based upon the documentary and
testimonial evidence before it (id. at ___; see CPLR 7803 [3]; 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, ___ NY3d ___).

     Local Law No. 7 requires City employees to establish and maintain
residency within the City throughout the term of their employment (see
Local Law No. 7 § 3). As amended, the law 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]). That
definition 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” (Matter of Newcomb, 192 NY 238, 250; see Beck-
Nichols, ___ NY3d at ___).

     We conclude that the evidence presented to respondents was
sufficient to establish that petitioner’s “actual principal place of
residence” was in the Town of Niagara (Niagara), outside the City limits
(Local Law No. 7 § 2; see Adrian, 92 AD3d at 1272-1273). Petitioner and
her husband bought the Niagara residence in August 2004, at the same
time that they allegedly separated and petitioner moved to a City
address. An investigative report indicated that petitioner resided at
the Niagara residence, the address of the Niagara residence is listed on
petitioner’s joint tax return with her husband, and petitioner’s
signature appeared on a recent mortgage application for the Niagara
residence. Further, petitioner’s husband and children reside at the
Niagara residence, and the children attend school in the Niagara-
Wheatfield School District (see Beck-Nichols, ___ NY3d at ___). In
addition, a surveillance company observed petitioner on multiple
occasions driving to work from the Niagara residence early in the
morning and driving from work to the Niagara residence at the end of the
work day, whereupon she would retrieve the mail and park in the garage.

     Although petitioner testified that she resided at the City address
and that address is listed on various documents, including voter
registration records and her driver’s license, we conclude that such
“evidence was not so overwhelming as to support the court’s
determination granting the petition” (Adrian, 92 AD3d at 1273). Rather,
under the “extremely deferential standard” of review applicable to this
case (Beck-Nichols, ___ NY3d at ___), we conclude that the City’s
determination that petitioner principally resides outside the City is
not “without foundation in fact” (id. at ___ [internal quotation marks
omitted]), and thus that the City “rationally concluded that
[petitioner] did not comply with the residency policy” (id. at ___; see
generally Matter of Warder v Board of Regents of Univ. of State of N.Y.,
53 NY2d 186, 194, cert denied 454 US 1125).

Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
