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April 14, 2011

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department

The City of Niagara Falls School District terminated the employment of Vincent F. Gigliotti on the grounds that he failed 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." As the Court of Appeals said in Matter of Newcomb, 192 NY 238, "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."

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations in which he or she may, from time to time, live, but only one such residence is his or her domicile.

According to the decision, the Gigliotti, a lifelong resident of Niagara Falls, divorced and while he was temporarily laid off from his position, remarried. Gigliotti and his wife, who owned a home in Ransomville New York, agreed that Gigliotti would continue to live in Niagara Falls with his ailing mother while his spouse would continue to live in her home in Ransomville.

The evidence considered by the Appellate Division in determining Gigliotti’s domicile included Gigliotti’s listing his Niagara Falls address on his federal income tax return forms, his New York State driver's license, his marriage certificate, and his bank and credit statements. In addition, the court noted that Gigliotti’s personal belonging 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.”

The Appellate Division, after considering the evidence, determined that the District’s conclusion that Gigliotti had changed his domicile from Niagara Falls to Ransomville was arbitrary and capricious.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322 Assuming that the District had provided Gigliotti with an opportunity to show that he or she satisfied the District’s requirement regarding domicile, the problem here was that the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm
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