SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
275
CA 10-01198
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
IN THE MATTER OF VINCENT F. GIGLIOTTI,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
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.
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.
Appeal from a judgment of the Supreme Court, Erie County (Tracey
A. Bannister, J.), entered March 19, 2010 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 modified on the law by vacating the award of attorneys’
fees and as modified the judgment is affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination terminating his
employment with respondent School District of City of Niagara Falls
(District) for failure to comply with the District’s residency policy,
which requires District employees to be domiciliaries of the City of
Niagara Falls. Supreme Court properly granted the petition. 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
NY 238, 250). 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 NY2d 447, 451, rearg denied 85 NY2d
1033; see Matter of Larkin v Herbert, 185 AD2d 607, 608). “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 NY2d at 451, quoting Newcomb, 192 NY at 251; see Matter of Johnson
-2- 275
CA 10-01198
v Town of Amherst, 74 AD3d 1896, lv denied 15 NY3d 712).
Here, the evidence presented to respondent Niagara Falls Board of
Education established that petitioner was a lifelong resident of
Niagara Falls. Beginning in 1992 or 1993, petitioner resided with his
elderly mother at a residence in Niagara Falls after his divorce from
his first wife. In April 2007, while he was temporarily laid off from
his employment with the District, petitioner married his longtime
girlfriend, in part because he was at risk of losing his health
benefits. Petitioner and his wife agreed that petitioner would
continue to live in Niagara Falls with his mother, while his wife
would continue to live at her residence in Ransomville, New York,
which she purchased before the marriage. Petitioner’s personal
effects remained at his residence in Niagara Falls, although he keeps
a set of golf clubs and some clothing at his wife’s residence in
Ransomville. Petitioner resides with his wife in Ransomville on
weekends. Petitioner listed the Niagara Falls address on, inter alia,
his federal income tax forms, his New York State driver’s license, his
social security card, his marriage certificate, and bank and credit
statements. Moreover, petitioner’s vehicle is registered at the
Niagara Falls address, and he is registered to vote in Niagara Falls.
We thus conclude that the determination that petitioner changed his
domicile from Niagara Falls to Ransomville was arbitrary and
capricious (see generally Matter of Pell v Board of Educ. of Union
Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 NY2d 222, 230-231).
Contrary to respondents’ contention, 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 AD2d 1137, 1137-1138). 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 NY2d 322, 329; see Matter of O’Connor v Board of Educ. of
City School Dist. of City of Niagara Falls, 48 AD3d 1254, lv dismissed
10 NY3d 928; see generally Matter of Felix v New York City Dept. of
Citywide Admin. Servs., 3 NY3d 498, 501).
We agree with respondents, however, that the court erred in
awarding attorneys’ fees to petitioner, and we therefore modify the
judgment accordingly. “In New York the general rule is that each
litigant is required to absorb the cost of his [or her] own
attorney[s’] fees . . . in the absence of a contractual or statutory
liability” (Larsen v Rotolo, 78 AD3d 1683, 1683-1684 [internal
quotation marks omitted]). Petitioner contends, however, that the
award is warranted as a sanction for frivolous conduct pursuant to 22
NYCRR 130-1.1. We reject that contention. A court may award
attorneys’ fees pursuant to that regulation “only upon a written
decision setting forth the conduct on which the award . . . is based,
the reasons why the court found the conduct to be frivolous, and the
reasons why the court found the amount awarded . . . to be
appropriate” (22 NYCRR 130-1.2; see Ikeda v Tedesco, 70 AD3d 1498)
-3- 275
CA 10-01198
and, here, the court failed to disclose its basis for awarding
attorneys’ fees to petitioner (see Carnicelli v Carnicelli, 300 AD2d
1093).
Entered: March 25, 2011 Patricia L. Morgan
Clerk of the Court