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Editor: Mitchell H. Rubinstein
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Tuesday, September 28, 2010

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2010/09/having-a-residence-in-the-jurisdiction-not-always-the-same-as-having-a-domicile-in-the-jurisdiction.html

Constitutional Law, Public Sector Employment Law | Permalink

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