In the Matter of Karri Beck-Nichols, Respondent,v.Cynthia A. Bianco,, et al., Appellants.

Brief

N.Y.January 8, 2013

To be argued by: ROBERT J. REDEN, ESQ. or TERRY M. SUGRUE, ESQ. Estimated Time of Argument: 20 Minutes STATE OF NEW YORK Court of Appeals In the Matter of the Application of KARRI BECK-NICHOLS, Petitioner-Respondent, For a Judgment under Article 78 of the Civil Practice Law and Rules commanding respondents to reinstate petitioner to her position as a Production Control Manager in the School District of the City of Niagara Falls, New York, vs. CYNTHIA A. BIANCO, as Superintendent of Schools of the City School District of the City of Niagara Falls, New York, RUSSELL PETROZZI, as President of the Niagara Falls Board of Education, NIAGARA FALLS BOARD OF EDUCATION and SCHOOL DISTRICT OF THE CITY OF NIAGARA FALLS, NEW YORK, Respondents-Appellants. Appellate Division Docket Number: TP 11-00935 Erie County Index No. I 2009-14459 BRIEF FOR PETITIONER-RESPONDENT REDEN & O’DONNELL, LLP Attorneys for Petitioner-Respondent 135 Delaware Avenue, Suite 410 Buffalo, New York 14202 Telephone: (716) 856-0277 Facsimile: (716) 843-8698 Robert J. Reden, Esq. Terry M. Sugrue, Esq. Of Counsel Date of Completion: June 15, 2012 i TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CASES AND AUTHORITIES . . . . . . . . . . . . . . . iii PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 POINT I THE APPELLANTS’ DECISION TO TERMINATE MS. BECK-NICHOLS EMPLOYMENT WAS ARBITRARY AND CAPRICIOUS. . . . . . . . . . 7 A. DOMICILE REQUIRES THE UNION OF RESIDENCE AND INTENTION . . . . . . . . . . . . . . . . . . . . . . 8 B. MS.BECK-NICHOLS CONTINUING HER DOMICILE IN NIAGARA FALLS WAS SUPPORTED BY HER ACTIONS, INTENTIONS AND MOTIVES . . . . . . . . . . . . . . . 9 C. APPELLANTS’ CONCLUSION THAT MS. BECK-NICHOLS ABANDONED HER LIFE-LONG NIAGARA FALLS DOMICILE AND ADOPTED A NEW LOCALITY AS HER DOMICILE IS CONTRARY TO THE REQUIRED BURDEN OF PROOF, PRESUMPTIONS OF LAW AND LEGAL ABILITY OF SPOUSES TO MAINTAIN SEPARATE DOMICILES . . . . . . 14 1. The Burden Of Proof Is Placed On The Party Alleging A Change Of Domicile. Appellants’ Requirement That Ms. Beck- Nichols Prove She Maintained Her Niagara Falls Domicile Was Arbitrary And Capricious . . . . . . . . . . . . . . . . . . 15 2. The Law Presumes A Person’s Existing Domicile, Whether By Origin or Selection, Will Continue Until Her Intent To Change Is Established By Clear And Convincing Evidence. Appellants’ Failure To Apply The Correct Presumptions Of Law Was Arbitrary And Capricious . . . . . . . . . . . 17 3. A Mere Change Of Residence Although Continued For A Long Time Does Not Effect A Change Of Domicile. Appellants’ Conclusion That Two Non-Workday Overnight Stays In Lewiston Changed Her Niagara ii Falls Domicile Was Arbitrary And Capricious . . . . . . . . . . . . . . . . . . 19 4. A Wife May Have A Separate Domicile From Her Husband. Appellants’ Reliance Upon The Domicile Of Ms. Beck-Nichols’ Husband Was Arbitrary And Capricious . . . . . . . . . 26 a. Appellants’ Failure To Consider Evidence Of Ms. Beck-Nichols’ Domicile Because She Was Not Separated From Her Husband Was Arbitrary And Capricious . . . . . . . . 28 POINT II THE APPELLATE DIVISION PROPERLY FOUND THAT THIS CASE DID NOT INVOLVE A SUBSTANTIAL EVIDENCE ISSUE, AS APPELLANTS DID NOT HOLD A “HEARING” AND NONE WAS REQUIRED BY LAW. . 32 A. NO HEARING WAS HELD OR REQUIRED BY THE RESIDENCY POLICY . . . . . . . . . . . . . . . . . 32 B. NO HEARING WAS REQUIRED BY LAW . . . . . . . . . . 34 POINT III THE APPELLATE DIVISION PROPERLY FOUND THAT APPELLANTS’ DETERMINATION THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT MS. BECK-NICHOLS CHANGED HER DOMICILE WAS ARBITRARY AND CAPRICIOUS . . . . . . . . . . . . . . . . 36 A. THE APPELLATE DIVISION PROPERLY EXAMINED WHETHER THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO SATISFY THE CLEAR AND CONVINCING EVIDENCE STANDARD . . . . . . . . . . . . . . . . . 36 B. BOTH CLEAR AND CONVINCING EVIDENCE AND ARBITRARY AND CAPRICIOUS STANDARDS APPLY . . . . . 37 C. APPELLANTS’ EVIDENCE THAT MS. BECK-NICHOLS ABANDONED HER LIFE-LONG NIAGARA FALLS DOMICILE AND ADOPTED A NEW LOCALITY AS HER DOMICILE WAS “LOOSE, EQUIVOCAL AND CONTRADICTORY” AND, THEREFORE, INCAPABLE OF SATISFYING THE CLEAR AND CONVINCING EVIDENCE THRESHOLD . . . . . . . . . 39 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 45 iii TABLE OF CASES AND AUTHORITIES Cases Babbin v. State Tax Com., 49 N.Y.2d 846 (1980) . . . . . . . . . . . . . . . . 42, 44 Colton v. Berman, 21 N.Y.2d 322 (1967) . . . . . . . . . . . . . . . . . . 36 Felix v. New York City Department of Citywide Administrative Services, 3 N.Y.3d 498 (2004) . . . . . . . . . . . . . . 16, 35, 42 George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211 (1978) . . . . . . . . . . . . . . . 7, 38, 44 Gigliotti v. Bianco, et al., 82 A.D.3d 1636 (4 Dept. 2011) . . . . . . . . . . .th 8, 32 Gould v Gould, 235 N.Y. 14, 26 (1923) . . . . . . . . . . . . . . . . . 19 Gray v. Tax Appeals Tribunal, 235 A.D.2d 641 (3d Dept. 1997) . . . . . . . . . . . 42, 44 Hosley v. Curry, 85 N.Y.2d 447 (1995) . . . . . 8, 9, 10, 15, 16, 18, 20, 21, 22, 23, 24, 27, 36, 38, 40 In re Appleby’s Estate, 106 N.Y.S.2d 294 (Surr. Ct. 1951), aff’d, 279 A.D. 993 (1952) . . . . . . . . . . . . . . . 31 In re Bourne’s Estate, 181 Misc. 238, Aff’d 267 App.Div. 876, aff’d 293 N.Y. 785 . . . . . . . 25 In re Westchester County Med. Ctr. ex rel. O'Connor, 72 N.Y.2d 517 (1988) . . . . . . . . . . . . . . . . 37, 38 Johnson v. Town of Amherst, 74 A.D.3d 1896 (4 Dept. 2010) . . . . . . . . . . . .th 27 Kartiganer v. Koenig, 194 A.D.2d 879 (3d Dept. 1993) . . . . . . . . . . . . . 25 Krajkowski v. Bianco, et al., 85 A.D.3d 1577 (4 Dept. 2011), th lv. den. 17 N.Y.3d 712 (2011) . . . . . . . . . . . . 8, 32 iv Lansford v. Lansford, 96 A.D.2d 832 (2d Dept. 1983) . . . . . . . . . . . 26, 29 Matter of Blumenthal, 101 Misc. 83, aff’d 186 A.D. 944 . . . . . . . . . . . . 24 Matter of Dagget, 255 N.Y. 243 (1931) . . . . . . . . . . . . . . . . . . 26 Matter of Estate of Gadway, 123 A.D.2d 83 (1987) . . . . . . . . . . . . . . . . . . 18 Matter of Gallagher v Dinkins, 41 AD2d 946, affd 32 NY2d 839 . . . . . . . . . . . . . 22 Matter of Larkin v. Herbert, 185 A.D.2d 607 (3d Dept. 1992) . . . . . . . 10, 17, 27, 31 Matter of Newcomb, 192 N.Y. 238 (1908) . . . . . . . . 8, 10, 15, 16, 17, 18, 21, 22, 32, 36, 38 Matter of O’Connor v. Board of Educ. of City Sch. Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4 Dept. 2008), th lv dismissed 10 N.Y.3d 928 (2008) . . . . . . . . . 34, 35 Unanue v. Unanue, 141 A.D.2d 31 (2d Dept. 1988) . . . . . . . . . . . . . 18 Willkie v. Delaware County Bd. of Elections, 55 A.D.3d 1088 (3d Dept. 2008) . . . . . . . . . . . . . 30 Statutes CPLR § 7803 . . . . . . . . . . . . . . . . . . . . . . . . . . 1 CPLR § 7803(4) . . . . . . . . . . . . . . . . . . . . . 34, 35 Civil Service law §75 . . . . . . . . . . . . . . . . . . . . 35 Domestic Relations Law §61 . . . . . . . . . . . . . . . 26, 42 Education Law §§ 3020 . . . . . . . . . . . . . . . . . . . . 34 Education Law §3020-a . . . . . . . . . . . . . . . . . . 34, 35 Public Officers Law §3 . . . . . . . . . . . . . . . . . 21, 22 Public Officers Law §30 . . . . . . . . . . . . . . . . . 21, 22 v Real Property Tax Law § 425(3)(b) . . . . . . . . . . . . . . 28 Real Property Tax Law §425(4-a)(a) . . . . . . . . . . . 28, 29 Tax Law § 689 . . . . . . . . . . . . . . . . . . . . . . . . 42 Other Authorities 11 Op. Counsel SBRPS No. 18 . . . . . . . . . . . . . . . . . 28 1 PROCEDURAL HISTORY This dispute arose between KARRI BECK-NICHOLS (hereinafter “Petitioner” or “Beck-Nichols”) and CYNTHIA A. BIANCO, as Superintendent of Schools of the City School District of the City of Niagara Falls, New York, RUSSELL PETROZZI, as President of the Niagara Falls Board of Education, NIAGARA FALLS BOARD OF EDUCATION, and SCHOOL DISTRICT OF CITY OF NIAGARA FALLS, NEW YORK, (collectively “Respondents”), on September 25, 2009, when Respondents discharged Petitioner Beck-Nichols for an alleged failure to comply with the Respondents’ residency policy. On December 21, 2009, Karri Beck-Nichols filed a Petition pursuant to Civil Practice Law and Rules Article 78 to order Respondents to reinstate her to her position as a Production Control Manager in the School District of the City of Niagara Falls, New York (R.15-80). On March 5, 2010, Respondents submitted an Answer, seeking to dismiss the Petition or, if the Court determines that there is an issue of substantial evidence, transfer the matter to the Appellate Division (R.81-86). Hon. Frank A. Sedita, Jr., of the New York State Supreme Court, Erie County, issued an Order on July 6, 2010 transferring the Petition to the Appellate Division pursuant to CPLR § 7803 (R.11-14). On November 10, 2011, the Appellate Division, Fourth Judicial Department, issued a Memorandum and Order granting the transferred Petition in all respects (R.5-8). On February 21, 2012, this Court granted Appellants’ motion for leave to appeal (R.4). 2 STATEMENT OF FACTS Petitioner, Karri Beck-Nichols, was initially appointed to the position of Computer Operator for the Niagara Falls City School District. (R.17, ¶5). She remained employed by the School District as a Computer Operator from July 1994 through about February 2005, whereupon she was promoted to Production Control Manager, Information Systems (R.17, ¶6; 100). She served in said capacity until her employment was terminated, effective September 25, 2009 (R.17, ¶7; 58). Over the course of her career with the School District, Beck- Nichols has lived at various addresses in the City of Niagara Falls. She lived at 8931 Joliet Avenue, Niagara Falls, New York when she was initially hired (R.18, ¶11; 30; 91-95; 96; 97-98; 99- 100). In 2001, Beck-Nichols and her husband purchased property in Lewiston, New York, and, thereafter rented out the 8931 Joliet Avenue property (R.18, ¶12). Beck-Nichols’ husband lived full-time in Lewiston with their three children. In order to maintain her employment, immediately upon renting out 8931 Joliet, Beck-Nichols began living at her parents’ house at 9133 Champlain Avenue, Niagara Falls, New York. She would also spend time in Lewiston (R.18, ¶12). Beck-Nichols continued to reside at her parents’ house when questions concerning her residency were raised in 2004 (R.31). Shortly thereafter, Beck-Nichols received her promotion to Production Control Manager (R.100). She continued to reside at her parents house through the end of 2008 (R.18-19, ¶14; 32). 3 In January of 2009, Beck-Nichols moved back into her home at 8931 Joliet Avenue, Niagara Falls. She notified Respondents of the change of address and provided all of the information the Respondents required as proof of residency (R.19, ¶15; 34-40). By letter dated February 10, 2009, Philip J. Mohr, Administrator for Human Resources for the City of Niagara Falls School District, notified Beck-Nichols that “[w]e have reason to believe that you are in violation” of the District’s residency policy (R.28). Mr. Mohr scheduled a residency affirmation meeting for February 25, 2009, where Beck-Nichols would be permitted to present information and/or documentation to verify her domicile (Id.). By letter dated March 11, 2009, the meeting was rescheduled to March 25, 2009 (R.29). On March 25, 2009, Beck-Nichols appeared at the meeting and answered all questions asked of her concerning her domicile (R.118- 20). She reaffirmed that she owns and lives in a home in the City of Niagara Falls, New York located at 8931 Joliet Avenue (Id.). Beck-Nichols provided to Respondents the following documentation verifying her residence and domicile at 8931 Joliet Avenue, Niagara Falls, New York: • Employee Change of Address Form (1/21/09) (R.34) • Driver’s License (issued 1/9/09) (R.103) • Interim driver’s license receipt (issued 1/9/09) (R.105) • Proof of voter registration application (dated 1/9/09) (R.105) • Verizon bills (dated 1/7/09, 3/7/09) (R.35; 36) • voter registration card (issued 2/27/09) (R.37) • M&T Bank Home Equity Line of Credit (dated 1/20/09 - 2/16/09) (R.38) • National Grid bill (period 1/26/09 - 2/25/09) (R.39) • Time Warner Cable (referencing 2/13/09 payment) (R.40) (See also, R.19, ¶15). 4 At the residency affirmation meeting, Respondents indicated that they believed Beck-Nichols was not in compliance with the District’s residency policy because Beck-Nichols and her husband own the property in Lewiston, New York (R.19, ¶16). At the meeting, Beck-Nichols answered all questions except for one relating to whether she had a legal separation from her husband -- who is not a school district employee and is not subject to its residency policy (118-20). In order to clear up any doubts Respondents might have had regarding her domicile, following the meeting Beck-Nichols submitted an application for school tax relief (STAR) exemption, dated May 10, 2009, for the Lewiston residence signed by only Beck- Nichols’ husband (R.190). The Respondents began their “investigation” into Beck-Nichols’ residency on December 17, 2008, when the School District’s attorney conducted a Westlaw address search (R.239, ¶7). The search revealed several addresses for Beck-Nichols, with her Niagara Falls home at Joliet Avenue at the top (R.202). Prior to and after the March 2009 residency meeting, Respondents also caused Probe Services Professional Investigations to conduct a records search and surveillance of Beck-Nichols. By report dated May 13, 2009, Probe Services records search revealed additional addresses for Beck-Nichols, including additional Niagara Falls residences (i.e., 2315 Ferry Avenue, Niagara Falls, New York 14301 and 2739 Niagara Street, Apt. 2, Niagara Falls, New York 14303) (R.43). The investigator’s report concluded that Beck- 5 Nichols had a “dual residency” in Niagara Falls and Lewiston (42). However, information in the report confirmed that Beck-Nichols’ domicile was actually her Joliet Avenue home in Niagara Falls (R.41-51). For example, the investigators conducted surveillance on Beck-Nichols on workdays and non-workdays. The surveillance revealed that Ms. Beck-Nichols returned to her Niagara Falls home on Joliet Avenue every work day (2/24/09; 3/2/09; 3/6/09; and 5/11/09) (R.46; 48; 49; 50-51). Moreover, Beck-Nichols spent the night at her Joliet Avenue home on every work day surveillance was conducted (3/6/09; 5/11/09) (R.49; 50-51). Further, when the investigators requested and were authorized “to conduct additional surveillance on Ms. [Beck-]Nichols on a weekday from the afternoon hours until at least Midnight in order to confirm her residency” (R.49) the investigators observed Beck-Nichols again return to her Joliet Avenue home to sleep (R.50-51). By letter dated July 10, 2009, Respondents provided Beck- Nichols with a summary of the residency meeting along with copies of documents referred to in the summary (R.161-201). By letter dated July 30, 2009, Respondents notified Beck-Nichols of her alleged violation of the District’s residency policy and advised her of her right to respond (R.227). By letter dated August 4, 2009, Beck-Nichols replied to Respondents reiterating, inter alia, that “[d]uring fifteen (15) years of employment with the Niagara Falls city School District, I have maintained, without interruption, my permanent domicile” in Niagara Falls, New York 6 (R.52). She requested that the Niagara Falls Board of Education reconsider its position and cease further proceedings (Id.). By letter dated August 14, 2009, Respondents scheduled another meeting with Beck-Nichols (R.229). At the meeting held on August 18, 2009, Respondents provided Beck-Nichols with the report provided by Probe Services (R.41-51). Ms. Beck-Nichols advised that she knew she was being followed and noted that the particular event was within the document (R.230). The investigator’s document demonstrates that on the last day of surveillance, Ms. Beck-Nichols observed the investigators filming her residence after they followed her to her Joliet Avenue home for the evening: 5:30 p.m. Our second investigator arrives at 8931 Joliet Avenue in Niagara Falls and an observation point is established at this location with constant running video. 11:56 p.m. We observe Ms. Nichols arrive at her Niagara Falls residence driving in her white minivan. After parking in the driveway the subject takes note of our surveillance position and proceeds to walk around our vehicle before entering the residence. Once the subject enters that residence, we establish a different observation point. (R.50-51)(emphasis added). By letter dated August 21, 2009, Respondents notified Ms. Beck-Nichols that the Superintendent would be recommending to the Board of Education that her services as a Production Control Manager be terminated for failure to comply with the District’s residency policy (R.54). On September 24, 2009, at a regular Board meeting, the Niagara Falls Board of Education approved the termination of Beck-Nichols, 7 effective September 25, 2009, for failure to comply with the residency policy (R.58). By letter dated October 10, 2009, Respondents confirmed that Beck-Nichols had been terminated effective September 25, 2009, for alleged failure to comply with the District’s residency policy (R.232). ARGUMENT POINT I THE APPELLANTS’ DECISION TO TERMINATE MS. BECK-NICHOLS’ EMPLOYMENT WAS ARBITRARY AND CAPRICIOUS. At issue on this appeal is whether Appellants had sufficient evidence to determine if there was “clear and convincing evidence” that Ms. Beck-Nichols had an “absolute and fixed intention” to abandon her existing domicile in the City of Niagara Falls and adopt the Lewiston residence as her domicile. “Clear and convincing evidence” is the highest standard of proof in a civil case. This Court has stated this evidentiary standard demands “a high order of proof” and forbids the awarding of relief "whenever the evidence is loose, equivocal or contradictory". George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 220 (1978). In this case, the Appellate Division examined the record to determine whether the Appellants’ could have rationally concluded that there was “clear and convincing evidence” that Ms. Beck- Nichols changed her domicile. The Appellate Division determined 8 that the Appellants’ evidence could not satisfy their burden and, accordingly, the Appellants’ conclusion that it did was arbitrary and capricious, to wit: We conclude that the evidence failed to establish that petitioner evinced a “a present, definite and honest purpose to give up the old and take up the new place as [her] domicile” (Newcomb, 192 NY at 251; see Hosley, 85 NY2d at 452). Thus, respondents’ determination that petitioner changed her domicile from Niagara Falls to Lewiston was arbitrary and capricious (see Krajkowski, 85 AD3d at 1578; Gigliotti, 82 AD3d at 1637-1638) (R.7). The Appellate Division’s decision is fully supported by the record and applicable case law. A. DOMICILE REQUIRES THE UNION OF RESIDENCE AND INTENTION. The Appellants’ policy, which requires certain employees to be residents of the City of Niagara Falls, defines residency to mean “an individual’s actual principal domicile at which he or she maintains usual personal and household effects” (R.62). Appellants have interpreted this definition as the equivalent to the traditional notion of “domicile” (R.238, ¶6). The differences between “residence” and “domicile” have been established for more than a century. In Matter of Newcomb, 192 N.Y. 238, 250-251 (1908), this Court declared the following: As domicile and residence are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. 9 *** Residence without intention, or intention without residence is of no avail. Mere change of residence although continued for a long time does not effect a change of domicile, while a change of residence even for a short time with the intention in good faith to change the domicile, has that effect. *** Residence is necessary, for there can be no domicile without it, and important as evidence, for it bears strongly upon intention, but not controlling, for unless combined with intention it cannot effect a change of domicile. (citations omitted) There must be a present, definite and honest purpose to give up the old and take up the new place as the domicile of the person whose status is under consideration. *** Motives are immaterial, except as they indicate intention. A change of domicile may be made through caprice, whim or fancy, for business, health or pleasure, to secure a change of climate, or a change of laws, or for any reason whatever, provided there is an absolute and fixed intention to abandon one and acquire another and the acts of the person affected confirm the intention. (citations omitted) *** A temporary residence for a temporary purpose, with intent to return to the old home when that purpose has been accomplished, leaves the domicile unchanged ***. (emphasis added). These principles were later affirmed and expanded upon by this Court in Hosley v. Curry, 85 N.Y.2d 447 (1995), to wit: 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 (citations omitted) (emphasis added). B. MS.BECK-NICHOLS CONTINUING HER DOMICILE IN NIAGARA FALLS WAS SUPPORTED BY HER ACTIONS, INTENTIONS AND MOTIVES. Appellants do not dispute that Ms. Beck-Nichols has continually maintained a residence in the City of Niagara Falls. Appellants knew that Ms. Beck-Nichols has owned her home in Niagara Falls since 1991 (R.188) and had, for a period of time, resided at her parents’ home also in Niagara Falls (R.108; 118). In fact, Appellants do not even dispute that Ms. Beck-Nichols established 10 Niagara Falls as her domicile by origin and selection. Instead, Appellants dispute Ms. Beck-Nichols’ intent to continue her domicile in Niagara Falls. Ms. Beck-Nichols advised Appellants that her intention was to maintain her existing domicile in Niagara Falls (R.52). Her motives were clear, e.g., employment. Just as a person may change her domicile for “business” or any reason (Matter of Newcomb, 192 N.Y. 238, 250-51 (1908)), a person may likewise maintain her existing domicile for business or any reason. In fact, this Court made this principle clear in Hosley v. Curry, 85 N.Y.2d 447 (1995), by citing with approval Matter of Larkin v. Herbert, 185 A.D.2d 607 (3d Dept. 1992), which stated: “proof that petitioner continued his New York domicile for the sole purpose of maintaining his employment with the Town supports rather than defeats his cause.” (emphasis added) In this case, the information regarding Ms. Beck-Nichols’ motives clearly indicated her intention to continue her Niagara Falls domicile. In Matter of Newcomb, this Court stated “[m]otives are immaterial, except as they may indicate intention.” Id. at 251. Accordingly, Ms. Beck-Nichols’ continuing to maintain a Niagara Falls residence (which Appellants knew from their own investigation as well as the information Ms. Beck-Nichols provided) coupled with her expressed intention and motive for continuing her existing domicile in Niagara Falls, should have ended the inquiry. Unfortunately for Ms. Beck-Nichols, it did not. Even if the Appellants were justified in completely disregarding her motives and stated intention of continuing her 11 existing domicile (and they were not), her actions validated her intentions of continuing her existing Niagara Falls domicile. Ms. Beck-Nichols successfully demonstrated her continued Niagara Falls domicile to Appellants several times after the purchase of the Lewiston property. In fact, the Appellants were aware that Ms. Beck-Nichols had multiple residences at least as early as September 18, 2001, and they continued to employ her. On that date Ms. Beck-Nichols advised Appellants that she was a dual resident who split her time between residing at her parents home in Niagara Falls and the Lewiston residence: “I have two residences, a primary and a secondary. This is my primary address.” [Referring to her Niagara Falls address quoted immediately above] (R.108). Similarly, in 2004, the Appellants were aware that Ms. Beck- Nichols maintained the same living arrangements at the multiple residences (R.113). Moreover, the Appellants were aware that Ms. Beck-Nichols continued to own her Niagara Falls home on Joliet Avenue (R.113). Following the 2004 affirmation meeting, Beck- Nichols was promoted to her most recent permanently held position of Production Control Manager (R.52; 100). Notably, the residency policy requires promoted employees to comply with the residency policy (R.62-63, ¶C). Finally, in 2009, Ms. Beck-Nichols again complied with the Appellants’ residency policy, as the Appellants themselves defined it. The District’s “Employee Change of Address Form” references the Appellants’ residency policy and states that employees subject to the residency policy “are required to show proof that you reside Ms. Beck-Nichols also provided evidence that on January1 9, 2009, she had re-registered to vote at her home at 8931 Joliet Avenue, Niagara Falls, New York. Specifically, her Department of Motor Vehicles interim licence stated: “WE ARE SENDING YOUR VOTER REGISTRATION APPLICATION TO YOUR COUNTY BOARD OF ELECTIONS.” (R.105). Next to that notation, Ms. Beck-Nichols hand-wrote the following: “* Submitted will bring in” (R.105). When the new voter registration card was issued on 2/22/2009 she submitted it to Appellants (R.106). 12 in the City of Niagara Falls” (R.102). The form goes on to describe exactly what it requires for proof: “The following is required as proof of residency: ! Current Voter Registration Card (with name and new address) and one of the following: ! Current Utility Bill (electric, telephone, gas - with name and new address) ! A Valid New York State Driver’s Licence (R.102). Ms. Beck-Nichols provided exactly what was required by the Appellants’ policy: a current voter registration card (R.106), a1 Verizon telephone bill (R.104), a National Grid electric bill (R.107), and a valid New York State Driver’s License (R.103; 105). Each showed Ms. Beck-Nichols’ name and her Niagara Falls address on the documents prior to receiving notification that her residency was in doubt on February 10, 2009 (R.28). In reviewing the above, it is clear that Ms. Beck-Nichols made deliberate efforts to keep her Niagara Falls domicile to comply with the Appellants’ residency policy to keep her employment. However, despite providing the very information that Appellants required to establish compliance with the residency policy -- which information confirmed her compliance -- Appellants claimed Ms. This is the same address that Ms. Beck-Nichols listed on2 the January 21, 2009 “Employee Change of Address Form” (R.102). 13 Beck-Nichols “never provided evidence that the property at which she resided in Niagara Falls constituted her domicile” (R.83, ¶9). Appellants compounded their error of ignoring the evidence that Ms. Beck-Nichols complied with the residency policy (as they themselves defined it), by similarly ignoring the evidence from their own investigations. For example, the Appellants conduced a preliminary search regarding Ms. Beck-Nichols residency on December 17, 2008 utilizing a Westlaw database search. The search revealed Beck-Nichols’ most recent address was “8931 Joliet Ave., Niagara Falls, NY 14304" (R.202). 2 Thereafter, the Appellants hired private investigators (Probe Services) to perform a records search and conduct surveillance of Ms. Beck-Nichols. While the investigator’s report concluded that Ms. Beck-Nichols had a “dual residency” in Niagara Falls and Lewiston (R.42), information in the report confirmed that Ms. Beck- Nichols’ domicile was actually her Joliet Avenue home in Niagara Falls (R.41-51). For example, the investigators conducted surveillance on Ms. Beck-Nichols on workdays and non-workdays. The surveillance revealed that Ms. Beck-Nichols returned to her Joliet Avenue home in Niagara Falls on every workday: 2/24/09; 3/2/09; 3/6/09; and 5/11/09 (R.46; 48; 49; 50-51). Moreover, Ms. Beck- Nichols spent the night at her Joliet Avenue home on every workday surveillance was conducted: 3/6/09; 5/11/09 (R.49-51). Further, 14 when the investigators requested and were authorized “to conduct additional surveillance on Ms. [Beck-]Nichols on a weekday from the afternoon hours until at least Midnight in order to confirm her residency” (R.49), the investigators observed Ms. Beck-Nichols again return to her Joliet Avenue home to sleep (R.50-51). This evidence clearly demonstrated that her Niagara Falls residence was not a sham. The above-referenced actions by Ms. Beck-Nichols are clearly contradictory to the notion that she had an “absolute and fixed intention” to “abandon” her domicile in Niagara Falls. C. APPELLANTS’ CONCLUSION THAT MS. BECK-NICHOLS ABANDONED HER LIFE-LONG NIAGARA FALLS DOMICILE AND ADOPTED A NEW LOCALITY AS HER DOMICILE IS CONTRARY TO THE REQUIRED BURDEN OF PROOF, PRESUMPTIONS OF LAW AND LEGAL ABILITY OF SPOUSES TO MAINTAIN SEPARATE DOMICILES. Appellants’ contention that Ms. Beck-Nichols changed her domicile of origin and selection in Niagara Falls to that of a subsequently obtained residence in Lewiston ignores: that the burden of proof is placed on a party alleging a change of domicile (not on a party maintaining there has been no change); the presumptions of law and the residency policy regarding multiple residences; the well-established doctrine that a mere change of residence does not effect a change of domicile; and the legal ability of spouses to maintain separate domiciles. 15 1. The Burden Of Proof Is Placed On The Party Alleging A Change Of Domicile. Appellants’ Requirement That Ms. Beck-Nichols Prove She Maintained Her Niagara Falls Domicile Was Arbitrary And Capricious. When Appellants evaluated the evidence Ms. Beck-Nichols provided -- including the very documents that Appellants’ own policy states are required -- and concluded that she “never provided evidence that the property at which she resided in Niagara Falls constituted her domicile” (R.83, ¶9), they reversed the burden of proof by requiring Ms. Beck-Nichols to prove that she continued her domicile. This Court, in Hosley v. Curry, 85 N.Y.2d 447 (1995), made absolutely clear that a party alleging a change in domicile has the burden to prove the change by a heightened standard of evidence, to wit: “An existing domicile, whether of origin or selection, 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 (citations omitted)(emphasis added).” Moreover, as this Court held more than a century ago: “There must be a present, definite and honest purpose to give up the old and take up the new place as the domicile of the person whose status is under consideration.” Matter of Newcomb, at 251. Further, a change of domicile requires that “there is an absolute and fixed intention to abandon one and acquire another.” Id. Thus, two intentions must be shown. One to abandon the former domicile and the other to adopt a new one. Appellants were incapable of demonstrating either intention by clear and convincing evidence. 16 The Appellants’ argument that this Court’s decision in Felix v. New York City Department of Citywide Administrative Services, 3 N.Y.3d 498 (2004), reversed the above well-established and long- standing precedent -- and placed the burden of proof on Ms. Beck- Nichols to prove she did not change her domicile -- is without merit. Burden of proof was never at issue in that case -- as the employee provided admittedly outdated and contradictory information coupled with evidence manufactured solely after receiving notice of the charge that he was in violation of the residency policy. The issue on appeal before the Court in that case was whether a “hearing” was required prior to discharge for a residency violation or if “notice of and an opportunity to contest” the claim of non- residency was sufficient due process. As Appellants’ quotation conveniently leaves out of its brief (pg. 22), this Court held a hearing was not required: “We conclude that failure to establish residency is a violation of the City's residency requirement, which results in forfeiture of employment, and is not misconduct that would entitle the employee to a preremoval hearing.” Id. at 501. (emphasis added) Contrary to the Appellants’ arguments, this Court’s passing reference to the employee’s failure to establish residence in Felix did not reverse, sub silentio, more than a century’s worth of precedent placing the burden of proof squarely on the party alleging a change of domicile. See, Matter of Newcomb, supra; Hosley v. Curry, supra. The Niagara Falls Board of Education’s process of placing the burden of proof squarely on Ms. Beck-Nichols to establish that she 17 maintained her Niagara Falls domicile was contrary to law. The appropriate issue for the Board’s consideration was whether the District established by clear and convincing evidence that Ms. Beck-Nichols changed her domicile to Lewiston and, further, her intent was to make Lewiston her fixed and permanent home. See, Larkin v. Herbert, 185 A.D.2d 607 (3d Dept. 1992). Appellants’ failure to apply the correct burden of proof renders their conclusion arbitrary and capricious. 2. The Law Presumes A Person’s Existing Domicile, Whether By Origin or Selection, Will Continue Until Her Intent To Change Is Established By Clear And Convincing Evidence. Appellants’ Failure To Apply The Correct Presumptions Of Law Was Arbitrary And Capricious. Appellants erroneously presumed that Ms. Beck-Nichols existing domicile in Niagara Falls automatically changed by the acquisition of her Lewiston property, to wit: “petitioner regularly traveled to the property at 471 Aberdeen where her husband and children reside and never abandoned same as her domicile” (R.84, ¶13). However, the fact that Ms. Beck-Nichols maintains multiple residences does not invalidate her domicile in Niagara Falls. Simply put, acquiring a second residence in Lewiston does not automatically result in a change in domicile. As this Court stated in Matter of Newcomb: “[A] person may have two places of residence, as in the city and country, but only one domicile...The existing domicile, whether of origin or selection, continues until a new one is acquired...In order to acquire a new domicile there must be a union of residence and intention.” Id. at 250 (emphasis added). 18 The above principles are settled law and have been characterized as the “traditional rule”, to wit: “The traditional rule [is] that domicile, once established, is presumed to continue (Matter of Newcomb, 192 N.Y. 238, 250)(other citations omitted).” See, Unanue v. Unanue, 141 A.D.2d 31 (2d Dept. 1988). It is submitted that where, as here, a person has been a life- long domiciliary in Niagara Falls, the presumption of continuance is especially strong. See, Hosley v. Curry, 85 N.Y.2d 447 (1995). Thus, Ms. Beck-Nichols’ purchase of a second residence is not enough -- without the requisite intention -- to establish a change in domicile and, therefore, her existing Niagara Falls domicile is presumed to continue. A change of residence without the intent to abandon the prior residence leaves the established domicile in place. See, Matter of Newcomb, 192 N.Y. 238 (1908); Matter of Estate of Gadway, 123 A.D.2d 83 (1987). Moreover, even if time spent at her other property constituted a “dual residency” -- as the Appellants’ investigators concluded -- the Appellants’ residency policy does not prohibit employees from having more than one home. In fact, the policy expressly recognizes that an employee may “have another residence” (R.74), spend “time” at a “residence that is maintained outside of the City of Niagara Falls, NY” (R.72), and may “occupy” such “other residence(s) you either own or rent” (R.74). Further, as Appellants stated to the Trial Court in pointing out the definition of domicile, “individuals may have more than one residence” (R.238, ¶5). 19 In this case, Appellants ignored the presumptions of law as well as their own residency policy regarding multiple residences. Appellants’ failure to utilize the appropriate presumptions of law was arbitrary and capricious. 3. A Mere Change Of Residence Although Continued For A Long Time Does Not Effect A Change Of Domicile. Appellants’ Conclusion That Two Non-Workday Overnight Stays In Lewiston Changed Her Niagara Falls Domicile Was Arbitrary And Capricious. The Appellants’ conclusion that Ms. Beck-Nichols changed her domicile primarily rests upon two factors, i.e., (1) her acquisition of a second residence outside of Niagara Falls and (2) her having spent some time at the Lewiston residence, in addition to the time she spends at her Niagara Falls residence. Neither factor relied upon by Appellants, viewed together or separately, is sufficient to establish a change of domicile. The acquisition of a second residence does not invalidate, as a matter of law, Ms. Beck-Nichols’ life-long domicile in Niagara Falls (see, Point I(C)(2), supra). Similarly, proof that Ms. Beck- Nichols was observed over a four-month period staying at her Lewiston residence overnight on two non-workdays -- while over that same period of time also staying at her Niagara Falls residence overnight on two workdays -- does not effect, as a matter of law, a change of domicile. See, Gould v Gould, 235 N.Y. 14, 26 (1923)(“Assuming that defendant could have but one domicile, he was not obligated to reside at such domicile, but was privileged, as he did, to establish a residence in France [where he resided for five years]”). 20 Furthermore, the leading case on the subject of owning multiple residences and the burden of proof required to demonstrate a change of domicile is this Court’s decision in Hosley v. Curry, 85 N.Y.2d 447 (1995). In that case, Curry, a district attorney, was raised in the Town of Indian Lake, Hamilton County. In 1981, he was elected as its district attorney for the first time. In 1985, he resigned from that office and moved to Rensselaer County, but continued to vote in Hamilton County, at the Indian Lake home he jointly owned with his mother since 1976. In 1989, Curry moved back to Hamilton County, renting a home in Blue Mountain Lake, changing his voter registration to that home. In 1990, Curry and his wife purchased a home in Warren County. He carried on all the normal, daily activities of home life at this home. He resided at the home with his wife and their daughter. His daughter attended school from this home. He maintained his law practice from this home. He paid his income tax returns from there. Most of his correspondence and bills were sent there. Upon his move to Warren County, Curry changed his voter registration back to the Indian Lake home in Hamilton County, where his mother resided. At that time, Curry’s mother deeded the Indian Lake home to him (subject to her life tenancy). Curry also kept his driver's license, notary public commission, and Office of Court Administration registration at the Indian Lake address. Curry maintained some personal items at the Indian Lake home (clothing, a toothbrush, shaving kit and books) and occasionally stayed 21 overnight at the Indian Lake home in Hamilton County; but he continued to live with his wife and daughter in Warren County. In 1992, Curry again ran for and was elected Hamilton County district attorney. Hosley brought an Article 78 petition seeking to disqualify Curry from the office of Hamilton County district attorney for failing to satisfy the residency requirements of Public Officers Law §§ 3 and 30. The Trial Court found that Curry’s continued association with his mother’s house over the years was strong evidence of his intent to maintain that home as his permanent residence for all purposes. The Appellate Division reversed, concluding: “Key to respondent’s domicile is the location of the principal home where he actually lives...His occasional overnight sojourns to his mother’s house, together with limited usage of the house as a mailing address and voter registration, are insufficient to establish domicile at Indian Lake in Hamilton County...The physical manifestations of residency in Indian Lake are surrounded with an aura of sham.” Hosley v. Curry, 207 A.D.2d 116, 118-19 (3d Dept. 1995)(emphasis added). On appeal, this Court reversed the decision of the Appellate Division. In setting forth the applicable law regarding a change of domicile, this Court cited Matter of Newcomb repeatedly, including the following quotation: “Mere change of residence although continued for a long time does not effect a change of domicile...” See, Hosley v. Curry, 85 N.Y.2d 447, 451 (emphasis added). In evaluating the circumstances of the case, this Court made the following conclusion: We conclude that petitioner has failed to satisfy this heightened burden [to prove the change of an existing domicile by clear and convincing evidence] in the instant case. As noted above, evidence of respondent's move to 22 Warren County alone is insufficient to extinguish his domicile (and, therefore, his "residence" for purposes of Public Officers Law §§ 3 and 30) in Hamilton County. Rather, it was incumbent on petitioner to present clear and convincing evidence of respondent's present, definite and honest purpose to abandon the Hamilton County domicile and make the Warren County residence his fixed and permanent home (see, Matter of Newcomb, supra). The evidence was insufficient for this purpose. On the contrary, the evidence--including respondent's continuous voting record in Hamilton County since 1978--demonstrated his long-standing and continuous connection with Hamilton County, bespeaking an intent to maintain the Indian Lake residence as his fixed and permanent residence for all purposes (see, Matter of Gallagher v Dinkins, 41 AD2d 946, affd 32 NY2d 839). See, Id. at 452 (emphasis added). Given certain similarities, the holding in Hosley v. Curry is controlling in the instant case. Both Ms. Beck-Nichols and Curry owned a home where they undisputedly established their domicile. For example, Ms. Beck-Nichols purchased her Niagara Falls home in 1991 -- three years before she began her employment with the Respondents -- and undisputedly established it as her domicile (in doing so she maintained her domicile of origin in Niagara Falls) (R.188). Similarly, Curry established his domicile in the Indian Lake home he jointly owned with his mother since 1976. Both Ms. Beck-Nichols and Curry purchased another residence, a decade or more later, outside of the City/Town of their domicile. For example, in 2001 Ms. Beck-Nichols purchased a residence in Lewiston, New York. Similarly, in 1990 Curry purchased a residence in Warren County, New York. Critically, neither Ms. Beck-Nichols nor Curry “abandoned” their existing domicile, even after purchasing a second residence. For example, although Curry had moved out of the house he rented in 23 Blue Mountain Lake, he continued to own, occasionally reside in, vote from and utilize for mail and other legal purposes, his mother’s Hamilton County home. Similarly, Ms. Beck-Nichols continued to reside in Niagara Falls, vote from Niagara Falls and utilize that locality for other legal purposes. For a time, Ms. Beck-Nichols resided, voted, etc. from Niagara Falls at her parents’ home on Champlain Avenue, just as Curry did at his mother’s home (R.108, 113). However, Ms. Beck-Nichols also continuously owned her Niagara Falls home on Joliet Avenue, where she and her husband “intend to return” (R.113) and, in January of 2009, resumed her residency of her Joliet Avenue home before the Appellants began their residency investigation. (R.102-07). In fact, Ms. Beck-Nichols presented evidence of an even greater attachment to her Niagara Falls home than Curry did. For example, unlike Curry who “neither pays expenses nor maintains personal items at the Indian Lake house” (207 A.D.2d at 117), Ms. Beck- Nichols continuously maintained personal effects in Niagara Falls (R.113) and presented to Respondents documentary evidence proving she continues to pay, and use, the utilities in her Niagara Falls home (R.107). Moreover, unlike Curry who testified that he only “occasionally” stayed at his Indian Lake home (207 A.D.2d at 117), Ms. Beck-Nichols advised the Appellants that she has maintained Niagara Falls as her primary residence and domicile without interruption (R.102, 108, 228). Critically, neither Ms. Beck-Nichols nor Curry “abandoned” their existing domicile, by merely spending time at a home other 24 than their established domicile. This Court found that Curry’s existing domicile in Hamilton County was not changed despite residing in Warren County with his wife and child for 2-3 years [from 1990-1992] (85 N.Y.2d at 452). The same rationale applies in this case. Ms. Beck-Nichols’ existing domicile in Niagara Falls was not changed by evidence that she was observed spending the night at her Lewiston residence on two non-workdays (R.41-51). As Hosley v. Curry, supra, demonstrates, it would not have mattered if Appellants had followed her around for several more weeks or months observing her spend more time in her Lewiston residence [in any event Appellants did not do so], as “[m]ere change of residence although continued for a long time does not effect a change of domicile” Id. at 451. See also, Matter of Blumenthal, 101 Misc. 83, aff’d 186 A.D. 944 (existing domicile in New York continued although he lived in Paris for 14 years). Appellants presented no evidence, let alone “clear and convincing evidence”, that Ms. Beck-Nichols had an “absolute and fixed intention” to abandon her existing domicile and make the Lewiston property her fixed and permanent home. “On the contrary, the evidence -- including [Ms. Beck-Nichols’] continuous voting record [and registration] in [Niagara Falls] since [1992] -- demonstrated her long-standing and continuous connection with [Niagara Falls], bespeaking an intent to maintain the [Niagara Falls] residence as her fixed and permanent residence for all purposes.” See, Hosley v. Curry, 85 N.Y.2d at 452. 25 Thus, given Ms. Beck-Nichols’ actions, intention and motives to maintain her existing domicile, there can be no serious dispute that Appellants have failed to meet their burden to prove by clear and convincing evidence that Ms. Beck-Nichols abandoned her domicile in the City of Niagara Falls and acquired one in a new locality. Simply put, the record evidence is totally inconsistent with an “absolute and fixed intention” to “abandon” her existing domicile. As this Court affirmed in In re Bourne’s Estate, 181 Misc. 238, Aff’d 267 App.Div. 876, aff’d 293 N.Y. 785, the law “demand[s] that the intent [to change a domicile] be manifested by unequivocal acts” (emphasis added). Even if Respondents believed that it was a close call (i.e., the purchase of, and two non-workday nights spent at, the Lewiston property outweighed the information obtained regarding Ms. Beck- Nichols demonstrating that she had not abandoned Niagara Falls as her domicile), they would still fall considerably short of their burden of proof. See, Kartiganer v. Koenig, 194 A.D.2d 879 (3d Dept. 1993) (“Indeed, while it might be said that the question presented here is a close one, that acknowledgment is the antithesis to the proposition that petitioners have established their Florida domiciliary by clear and convincing evidence.”) Accordingly, Appellents’ failure to apply the correct standard of proof was arbitrary and capricious. 26 4. A Wife May Have A Separate Domicile From Her Husband. Appellants’ Reliance Upon The Domicile Of Ms. Beck-Nichols’ Husband Was Arbitrary And Capricious. Appellants’ conclusion that Ms. Beck-Nichols changed her domicile also relied upon the facts that her husband and children reside in Lewiston, New York and there was no evidence of a legal separation (R.84, ¶13-14). See also, R.214 (“No comment on separation from husband”). However, the domicile of Ms. Beck- Nichols’ spouse has no legal control on her choice of domicile. Apparently, Appellants were relying upon the common law which held that: “A woman upon marriage takes the domicile of her husband by operation of law and the legal domicile of the wife is prima facie that of her husband. *** Married women...may not in this State, until the Legislature acts...acquire a separate domicile whenever they so elect when they have no justification or excuse for leaving their husbands.” Matter of Dagget, 255 N.Y. 243 (1931). Whatever merit the Appellants’ position might have had decades ago was eviscerated when the Legislature modified the law, granting a wife the same capacity as a husband to acquire a domicile of her choice. See, Domestic Relations Law §61: “The domicile of a married man or woman shall be established for all purposes without regard to sex.” The Court, in Lansford v. Lansford, 96 A.D.2d 832 (2d Dept. 1983), explained the change in law as follows: Although at one time a wife had to adopt the domicile of the husband, a husband may no longer assert an overriding control of the choice of a matrimonial domicile. Pursuant to sections 61 and 231 of the Domestic Relations Law a wife has the same capacity to acquire a domicile of her choice as does her husband. There is no legal barrier to a wife continuing her domicile after her marriage (Geiser v. Geiser, 102 Misc.2d; Small v. Small, 96 Misc.2d 469).” (emphasis added). 27 Thus, Appellants’ reliance upon the domicile of Ms. Beck- Nichols’ husband has no binding effect on Ms. Beck-Nichols’ choice of domicile. Notably, this is not a case where there was an existing “marital domicile” outside the City boundaries and Ms. Beck-Nichols simply moved into the City (while not completely abandoning her existing domicile) to establish residency solely to comply with the original residency requirements of her employment. Cf. Johnson v. Town of Amherst, 74 A.D.3d 1896 (4 Dept. 2010). To the contrary,th they had an established domicile in the City of Niagara Falls several years before they purchased a second residence in Lewiston, and the evidence shows that Ms. Beck-Nichols never abandoned Niagara Falls as her domicile. Moreover, the fact that Ms. Beck-Nichols stayed at her parents’ Niagara Falls home -- before resuming residency at her own Niagara Falls home -- does not cause her to forfeit her Niagara Falls domicile. As discussed above, in Hosley v. Curry, supra, Curry also continued his domicile at his mother’s home -- where she maintained a life tenancy to the home -- despite owning and residing in another home in Warren County (where his wife and children resided). Similarly, in Matter of Larkin v. Herbert, 185 A.D.2d 607 (3d Dept. 1992), the record on appeal reveals that Larkin also began residing part-time in his father’s home after he purchased a home in Pennsylvania (where his wife and children resided). 28 a. Appellants’ Failure To Consider Evidence Of Ms. Beck-Nichols’ Domicile Because She Was Not Separated From Her Husband Was Arbitrary And Capricious. Appellants explicitly cited the lack of legal separation from her husband as a factor in support of their decision to disregard evidence of Ms. Beck-Nichols’ domicile. Specifically, Appellants disregarded evidence of a revised STAR application submitted in 2009, signed by only Ms. Beck-Nichols’ husband for the Lewiston residence (R.84, ¶14; R.214; R.240, ¶10). Both Appellants’ disregard of the 2009 STAR application and their reliance upon the 2001 STAR application were arbitrary and capricious. Appellants’ assertion that “a legal separation [] is required for a sole application” for the 2009 STAR tax exemption (R.84, ¶14) is erroneous and contrary to law. Pursuant to Real Property Tax Law § 425(3)(b), to be eligible for the exemption, “the property must serve as the primary residence of one or more owners thereof” (emphasis added). As stated in the Office of Real Property Services Opinions of Counsel, “the property need not serve as the primary residence of all of the owners of such property; the exemption may be granted even if one of the owners primarily resides elsewhere.” 11 Op. Counsel SBRPS No. 18 (emphasis added). Pursuant to Real Property Tax Law §425(4-a)(a), a legal separation is only required if both spouses claim STAR exemptions for separate residences: “Married couples with two or more residences. A husband and wife may receive an exemption pursuant to this section on no more than one residence unless living apart due to legal separation.” Real Property Tax Law §425(4- a)(a) (emphasis added). 29 Thus, legal separation is not required for a STAR application by a “sole applicant” (i.e., only one of two spouses). All owners are not required to hold the property as a primary residence. Accordingly, Appellants erroneously determined that the STAR application executed by Ms. Beck-Nichols’ husband, in 2009, was invalid. Appellants similarly erred in relying upon the 2001 STAR application executed by Ms. Beck-Nichols and her husband for the property they own in Lewiston, New York. It is insufficient to establish Ms. Beck-Nichols’ domicile, letting alone the fact that the 2009 STAR application was executed and submitted solely by Ms. Beck-Nichols’ husband in June of 2009 (three months before Appellants discharged Ms. Beck-Nichols). As established above, Ms. Beck-Nichols’ signature on the 2001 STAR tax application under her husband’s signature was unnecessary for the tax benefits. Accordingly, her signature was a mere formality. As such, it is insufficient evidence of Ms. Beck- Nichols’ domicile. In Lansford v. Lansford, 96 A.D.2d 832 (2d Dept. 1983), the Court rejected an argument that the mere formality of signing a tax record was enough to establish residency, to wit: “Although the wife signed South Carolina joint State tax returns, she earned no income and the signings were merely a formality...The evidence clearly shows that the wife did not establish a South Carolina residence.” Likewise, in Willkie v. Delaware County Bd. of Elections, 55 A.D.3d 1088 (3d Dept. 2008), the Court similarly found that listing an address on tax returns “as their permanent home address” did not 30 prevent the petitioners from establishing a residence elsewhere for voting purposes. (Under the Election Law residence has been defined to mean domicile). In any event, Ms. Beck-Nichols’ signing of the 2001 STAR tax application had no effect on her intentions to maintain her domicile in the City of Niagara Falls, a point she repeatedly made clear to Appellants. After all, Ms. Beck-Nichols successfully demonstrated her Niagara Falls domicile to Appellants repeatedly after the purchase of the Lewiston property (i.e., 2001, 2004, and 1/2009). These declarations of intention to maintain her City domicile supplant and supercede the May 2001 STAR tax application in both time and effect. Finally, when it became apparent to Ms. Beck-Nichols that Appellants suddenly found the 2001 STAR application problematic (several years after Appellants became aware of it), Ms. Beck- Nichols took action to clear up the issue. Accordingly, she made sure that her name was removed from the STAR application and a new one was filed on June 9, 2009, naming only Ms. Beck-Nichols’ husband (R190). However, as is evident by the presentation made to the Board of Education prior to discharge, Respondents failed to take the 2009 STAR application into account (R.206-26). While Appellants pointed out that Ms. Beck-Nichols had signed a STAR application in 2001 for the Lewiston property (R.214), they failed to even acknowledge the June 9, 2009 STAR application she submitted -- despite the fact that it was submitted months prior to her 31 discharge (R.214-15). Instead, the Appellants erroneously focused on Ms. Beck-Nichols’ marital status: “No comment on separation for husband” (R.214). Moreover, as the Answer to the Petition and the Appellants-Respondents’ supporting affidavit made clear, Appellants’ disregard of the 2009 STAR application was intentional and premised upon the erroneous belief that a legal separation was required for it to be valid (R.84, ¶14; R.240, ¶10). In view of the above, Appellants’ conclusion regarding Ms. Beck-Nichols’ domicile -- which relied upon the 2001 STAR application and disregarded the 2009 STAR application (submitted months prior to discharge) -- was arbitrary and capricious. In light of all of the above, the Appellants’ evidence of Ms. Beck-Nichols’ intent to change domicile is not “clear and convincing” or even rational. On the contrary, the evidence shows that Ms. Beck-Nichols made deliberate efforts to keep her Niagara Falls domicile. Although she purchased another home, she continued her domicile in Niagara Falls to, inter alia, continue her employment. The desire to qualify for financial benefits is an entirely legitimate motive for keeping a domicile. See, In re Appleby’s Estate, 106 N.Y.S.2d 294 (Surr. Ct. 1951), aff’d, 279 A.D. 993 (1952); Matter of Larkin v. Herbert, 185 A.D.2d 607 (3d Dept. 1992). Indeed, Ms. Beck-Nichols’ motive is, itself, evidence of her intent to remain a domiciliary of Niagara Falls; as this Court stated in Newcomb, “[m]otives are immaterial, except as they indicate intention.” 192 N.Y. at 251. The evidence clearly contradicts any notion that Ms. Beck-Nichols had an “absolute and 32 fixed intention” to abandon her life-long domicile in Niagara Falls. POINT II THE APPELLATE DIVISION PROPERLY FOUND THAT THIS CASE DID NOT INVOLVE A SUBSTANTIAL EVIDENCE ISSUE, AS APPELLANTS DID NOT HOLD A “HEARING” AND NONE WAS REQUIRED BY LAW. Appellants argument that this case involves a substantial evidence review lacks merit. The Appellate Division properly found that “the residency policy termination procedure at issue in this case ‘does not involve a substantial evidence issue requiring transfer to this Court’” (R.6). A. NO HEARING WAS HELD OR REQUIRED BY THE RESIDENCY POLICY. In two prior cases involving the same procedure utilized in the instant case the Appellate Division made findings of fact that “the District did not conduct a hearing before terminating petitioner’s employment...” See, Gigliotti v. Bianco, et al., 82 A.D.3d 1636, 1638 (4 Dept. 2011); Krajkowski v. Bianco, et al.,th 85 A.D.3d 1577 (4 Dept. 2011), motion for leave to appeal deniedth 17 N.Y.3d 712 (2011). In this case, the Appellate Division explicitly relied upon those decisions (R.6-7). Appellants’ argument that a hearing was actually held is not supported by the record evidence. To the contrary, the evidence confirms the Appellate Division’s finding that there was no hearing. Rather, the Appellants afforded Ms. Beck-Nichols notice 33 and an opportunity to be heard at an “interview,” where Ms. Beck- Nichols was requested to submit documentation supporting her residency and she did so (R.28). A subsequent meeting was also held where Respondents provided Petitioner Beck-Nichols with some (but not all) of the information the Respondents had concerning her residency (R.230). Subsequently, the Board of Education met and voted to discharge Petitioner Beck-Nichols. The Appellants’ own “Record of Proceedings” does not characterize the initial interview and subsequent meeting as a “hearing” (R.116, 118, 230). Appellants’ argument that a “hearing” was held consists of simply replacing the words “interview” and “meeting” with “hearing”. At no time, however, was an evidentiary hearing held in which, among other things, witnesses were called, sworn testimony was taken, or the Appellants’ “evidence” could be fully examined and subjected to the adversarial process. Indeed, there was no hearing officer appointed or present (at any time), nor any written findings of fact issued setting forth the essential facts and evidence upon which Appellants relied. At no time did the Board of Education ever see or hear witnesses, or view their appearance, attitude and demeanor. The Appellants’ failure to hold a hearing is not surprising. Appellants’ procedure for making residency determinations does not call for a “hearing”. Rather, it merely calls for notice and an opportunity to respond: “Any Niagara Falls Board of Education employee alleged to be in violation of this policy shall be given written 34 notice of the alleged violation by the Human Resources Office. The employee will have seven (7) calendar days in which to respond in writing” (R.63, ¶E) (emphasis added). Since Appellants have failed to demonstrate that a hearing was actually held, their argument that this matter is subject to a substantial evidence review fails as a matter of law. See, CPLR § 7803(4). B. NO HEARING WAS REQUIRED BY LAW. Appellants’ position on whether a hearing is required in this matter has undergone a complete reversal in recent years -- and is currently without merit. In Matter of O’Connor v. Board of Educ. of City Sch. Dist. of City of Niagara Falls, 48 A.D.3d 1254 (4 Dept. 2008), lv dismissedth 10 N.Y.3d 928 (2008), two Niagara Falls School District employees were discharged for violating the District’s residency policy [the very same policy at issue in this case]. The employees challenged their discharges contending that they were entitled to a pre- removal hearing prior to their discharge. The Appellate Division agreed with the District’s position and held that employees discharged for residency violations were not entitled to a “hearing” pursuant to Education Law §§ 3020, 3020-a or “in accordance with their due process rights prior to their termination”. In this very proceeding, the Appellants, relying upon the O’Connor decision, advised the Trial Court that employees discharged under the residency policy are not entitled to a pre- 35 removal hearing pursuant to law (e.g., Civil Service law §75 or Education Law §3020-a) (R.239, ¶6). Now Appellants contend that a pre-removal “hearing” is required by due process. Appellants’ argument lacks merit. While the determination of whether Ms. Beck-Nichols violated the residency requirement invoked due process rights, her turning over requested residency documents does not constitute “a hearing held, and at which evidence was taken, pursuant to direction by law.” See, CPLR § 7803(4). This Court, in Felix v. New York City Dept. of Citywide Administrative Services, 3 N.Y.3d 498 (2004), held that “state and federal due process requirements” are “satisfied” by a procedure providing “notice of and the opportunity to contest the charge” that an employee’s residence is outside the city. Further, in Felix, this Court held that turning over requested residency “[d]ocuments such as these need not be subjected to the adversarial testing of a hearing”. Id. at 506. Accordingly, notice and an opportunity to contest does not involve a hearing, much less one “pursuant to direction by law”. See, CPLR § 7803(4). As discussed above, the Appellants’ residency policy similarly requires “written notice” and an opportunity “to respond in writing” (R.63, ¶E). As this Court held in Colton v. Berman, 21 N.Y.2d 322 (1967), when an administrative procedure merely provides notice and an “opportunity to be heard,” an evidentiary hearing is not required and the substantial evidence test does not apply. Instead, the arbitrary and capricious test applies. 36 In view of the above, Respondents’ arguments regarding substantial evidence review are clearly without merit. The Appellate Division properly applied the arbitrary and capricious test. POINT III THE APPELLATE DIVISION PROPERLY FOUND THAT APPELLANTS’ DETERMINATION THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT MS. BECK-NICHOLS CHANGED HER DOMICILE WAS ARBITRARY AND CAPRICIOUS. A. THE APPELLATE DIVISION PROPERLY EXAMINED WHETHER THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO SATISFY THE CLEAR AND CONVINCING EVIDENCE STANDARD. Appellants argue that the Appellate Division improperly shifted the burden of proof in an Article 78 proceeding when it reviewed the evidence that Ms. Beck-Nichols allegedly abandoned her Niagara Falls domicile and allegedly adopted a new domicile in Lewiston. This argument lacks merit. As discussed in Point I, supra, this Court has repeatedly held that a party alleging a change in domicile has the burden to prove the change by clear and convincing evidence. See, Matter of Newcomb, 192 N.Y. 238, 250 (1908); Hosley v. Curry, 85 N.Y.2d 447, 451 (1995). The Appellate Division merely followed that well- established and long-standing precedent in reviewing whether there was evidence in the record of a change of domicile capable of satisfying the clear and convincing evidence threshold. 37 This Court has held that reviewing the record to determine whether evidence can satisfy the clear and convincing evidence threshold is a question of law that is reviewable by the Courts: “Whether there is sufficient evidence in the record to satisfy the clear and convincing evidence standard presents a question of law reviewable by this Court. Reviewing the entire record in this manner does not involve making new factual findings...” In re Westchester County Med. Ctr. ex rel. O'Connor, 72 N.Y.2d 517, fn. 3 (1988) (emphasis added). Accordingly, contrary to Appellants’ arguments, the Appellate Division did not err in examining the evidence, nor does such an examination of sufficiency constitute a de novo review. B. BOTH CLEAR AND CONVINCING EVIDENCE AND ARBITRARY AND CAPRICIOUS STANDARDS APPLY. Appellants argue that the appropriate standard of review is whether the Niagara Falls Board of Education’s decision was rational. In the only two times Appellants used the words “clear and convincing” in their brief to this Court, they asserted the Appellate Division erred in considering the Appellants’ initial burden. Appellants’ argument misconstrues the law. The Appellate Division’s review of the Appellants’ decision that Ms. Beck-Nichols changed her domicile is not simply limited to whether there is evidence to support that conclusion -- without any consideration of the clear and convincing evidence threshold required to make such a determination. Otherwise, this Court’s well-established and long-standing precedent that a change of domicile must be established by “clear and convincing evidence” 38 would be rendered a nullity. Under Appellants’ arguments, clear and convincing evidence would be required in name only, as the standard would collapse on review if any evidence -- even “loose, equivocal or contradictory evidence” -- were deemed sufficient to support the change of domicile. In their motion to this Court seeking leave for appeal, Appellants previously recognized that both standards applied: “The Issue Before The Court Should Have Been Whether Appellants’ Determination That There Was Clear And Convincing Evidence That Petitioner Changed Her Domicile Was Arbitrary And Capricious” (Appellants’ Motion For Leave To Appeal, Point IV-A). Indeed, on review the appropriate question for a Court to determine is: “whether there is any valid line of reasoning and permissible inferences which could leave a rational person, using the proper standard, to the conclusion reached by the trier of fact on the basis of the evidence.” In re Westchester County Med. Ctr. ex rel. O'Connor, 72 N.Y.2d 517, 546 (1988) (Simons, dissenting)(emphasis added). The “proper standard” for establishing a change of domicile is “clear and convincing evidence” (Newcomb, supra; Hosley v. Curry, supra), which this Court has defined to exclude “loose, equivocal or contradictory” evidence. See, George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211, 220 (1978). Thus, the question for the reviewing Court becomes whether the rational person would view the evidence of a changed domicile as “loose, equivocal or contradictory”. 39 C. APPELLANTS’ EVIDENCE THAT MS. BECK-NICHOLS ABANDONED HER LIFE-LONG NIAGARA FALLS DOMICILE AND ADOPTED A NEW LOCALITY AS HER DOMICILE WAS “LOOSE, EQUIVOCAL AND CONTRADICTORY” AND, THEREFORE, INCAPABLE OF SATISFYING THE CLEAR AND CONVINCING EVIDENCE THRESHOLD. In this case, it cannot seriously be disputed that the evidence of Ms. Beck-Nichols alleged change of domicile is “loose, equivocal or contradictory”. Even taking the evidence in the light most favorable to Appellants, it is insufficient to demonstrate, by clear and convincing evidence, Ms. Beck-Nichols’ “present, definite and honest purpose” to abandon her Niagara Falls domicile and take up Lewiston as her new domicile. For example, the surveillance report of Ms. Beck-Nichols’ actions is “loose, equivocal or contradictory”. The report indicates the investigators determined that Ms. Beck-Nichols has a “dual residency” in Niagara Falls and Lewiston (R.42). Moreover, the investigators followed Ms. Beck-Nichols to her Niagara Falls domicile on every day of their surveillance, except when she did not work. Further, while the investigators found Ms. Beck-Nichols to have spent two nights at her Lewiston residence “at the onset of our investigation”, their editorializing overlooks the fact that she did so on non-work days (R.41-51). Furthermore, the investigators’ discounting the two times Ms. Beck-Nichols was found to have spent the night at her Niagara Falls domicile (by blaming it on her being “suspicious of our surveillance”) fails to hold up. First, there was no changed behavior, only changed circumstances. On the dates she was found to have slept at her Niagara Falls 40 domicile she was going to work the next morning [conversely on the dates she did not work the next morning they found she slept at her Lewiston residence]. Second, it is clear that Ms. Beck-Nichols only became “suspicious” of the investigators on May 11, 2009 (their last date of surveillance) after they had followed her home, near midnight, and parked in front of her house with a camera running (R.50-51). Thus, at best, the surveillance report is “loose, equivocal or contradictory”. Obviously the May 11, 2009 incident involving the Appellants’ investigators did not cause Ms. Beck-Nichols to submit evidence of her Niagara Falls domicile five months earlier, on January 21, 2009, when she submitted a copy of her current voter registration card, valid New York State Driver’s License (dated 1/9/09), Verizon telephone bill (bill date: 1/7/09), and National Grid bill (for period 1/26/09 to 2/25/09) (R.102-07). Such evidence was submitted weeks before Appellants requested a meeting with her regarding her residency (R.116). Clearly, evidence of her domicile that pre- dates Appellants’ investigation contradicts Appellants’ conclusion that her evidence was obtained in response to their investigation. In any event, with the exception of the STAR application, each of the factors Appellants relied upon also equally applied to Curry in Hosley v. Curry, 207 A.D.2d 116 (3 Dept. 1995)(“In 1990,rd respondent and his wife purchased a home in Warren County and began to reside there with their daughter...where his daughter attends school...He receives all his bills and correspondence at his Warren County address”). Yet, this Court found that the evidence was 41 “insufficient” to demonstrate Curry’s change of domicile by clear and convincing evidence. The Appellants’ STAR application evidence is also “loose, equivocal, or contradictory”. Appellants argued the May 10, 2001 STAR application indicates Ms. Beck-Nichols considered the Lewiston address to be her primary residence. However, Appellants’ argument fails under the weight of their own evidence. For example, on September 18, 2001, Ms. Beck-Nichols confirmed that her “primary” residence was in Niagara Falls and that the Lewiston address was her “secondary” residence (R.108). Similarly, on December 3, 2003, Ms. Beck-Nichols again “affirmed” her “domicile” was in Niagara Falls, New York (R.101). Both documents were drafted after the 5/10/01 STAR application and indicate Ms. Beck-Nichols considered the Niagara Falls residence her domicile well before any investigation into her domicile began. Thus, at best, the “evidence” of her change of domicile prior to the residency investigation was “loose, equivocal or contradictory”. Moreover, the June 9, 2009, STAR application submitted without Ms. Beck-Nichols’ name or signature supercedes the 2001 STAR application in both time and effect. It clearly “contradicts” the evidence relied upon by Appellants. Appellants’ intentional disregard of such evidence (premised upon the erroneous notion that she needed to be separated from her husband) was clearly arbitrary and capricious. See, Domestic Relations Law § 61. It is respectfully submitted that a reasonable mind would not accept the proof submitted to the Board of Education as adequate 42 evidence (i.e., “clear and convincing” meaning evidence that is not “loose, equivocal or contradictory”) to support the conclusion that Ms. Beck-Nichols had abandoned her existing domicile in Niagara Falls, New York and changed it to Lewiston, New York. Appellants argue that although the evidence was “conflicting”, it was, nevertheless, rational for the Board to determine there was clear and convincing evidence of a change of domicile (i.e., the evidence of a change of domicile was not “loose, equivocal or contradictory”). This argument lacks merit. Appellants’ reliance upon Babbin v. State Tax Com., 49 N.Y.2d 846 (1980) and Gray v. Tax Appeals Tribunal, 235 A.D.2d 641 (3d Dept. 1997) is misplaced. First, unlike the instant case, the Courts in Babbin and Gray were faced with a true “substantial evidence” review following a “hearing” held required by law (see, Tax Law § 689). As discussed above, no such hearing occurred in this case, nor was one required. See, Felix v. New York City Department of Citywide Administrative Services, 3 N.Y.3d 498 (2004). Second, the party with the burden of proof was different. In Babbin and Gray the individual taxpayers had the burden of proof to demonstrate, by clear and convincing evidence, that they had changed their domicile to outside New York State. In contrast, in this case, the burden of proof was placed upon the Board of Education to demonstrate by clear and convincing evidence that Ms. Beck-Nichols had changed her domicile from Niagara Falls to Lewiston. 43 Given the threshold needed to be met, a change of the parties’ burdens of proof could result in a contrary result. For example, here, the District had the burden of proof to establish that Ms. Beck-Nichols changed her domicile from Niagara Falls to Lewiston. “[L]oose, equivocal or contradictory” evidence was insufficient: the law requires a showing of a change of domicile by clear and convincing evidence. Thus, since the evidence is contradictory and the District has the burden of proof by clear and convincing evidence, it was irrational to determine Ms. Beck-Nichols changed her domicile. Consequently, her domicile remains in Niagara Falls. Had the facts been otherwise, and had Ms. Beck-Nichols been trying to establish she had changed her domicile from Lewiston to Niagara Falls, it would have been she who would have had the burden of proof by clear and convincing evidence. Thus, the Appellants’ refusal to accept her evidence to show domicile in Niagara Falls might have been proper, since one could conclude there was some evidence she continued to reside in the Lewiston home, rendering the evidence of a change in domicile “loose, equivocal or contradictory”. She would have failed to meet her burden by clear and convincing evidence that she had changed her domicile. And given there was evidence that she was living in Niagara Falls, a contrary conclusion by the Appellants -- that she had changed her domicile to Niagara Falls -- might also have been proper (and whether or not it was, obviously no one would challenge the decision, since it would have been a conclusion the employee sought). Thus, Babbin and Gray are inapposite: there, the taxpayer 44 had the burden by clear and convincing evidence to show they had changed their domicile. They failed to meet that burden. Here, the Appellants had the burden by clear and convincing evidence that Ms. Beck-Nichols had changed her domicile. The Appellants’ likewise failed to meet that burden. Thus, contrary to Appellants’ assertions, if a rational person would find that the evidence of a change of domicile is “loose, equivocal or contradictory”, then the evidence is insufficient to meet the clear and convincing evidence threshold, as a matter of law. See, George Backer Management Corp. v. Acme Quilting Co., Inc., 46 N.Y.2d 211 (1978). A determination that an individual changed her domicile notwithstanding “loose, equivocal or contradictory” evidence would necessarily be “arbitrary and capricious”. In view of the above, Appellants have not presented clear and convincing evidence that Ms. Beck-Nichols evinced a “present, definite and honest purpose to give up the old and take up the new place as [her] domicile”. Accordingly, Appellants’ determination that she changed her domicile from Niagara Falls to Lewiston is irrational and, therefore, arbitrary and capricious. 45 CONCLUSION For all of the foregoing reasons, it is respectfully submitted that the Court should affirm the Memorandum and Order of the Appellate Division. Dated: June 15, 2012 Buffalo, New York Respectfully submitted, REDEN & O’DONNELL, LLP Robert J. Reden, of Counsel Terry M. Sugrue, of Counsel Attorneys for Petitioner- Respondent 135 Delaware Avenue, Suite 410 Buffalo, New York 14202 Telephone: (716) 856-0277