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Terminated employees challenge City?s requirement that employees be domiciled within its jurisdiction

Terminated employees challenge City?s requirement that employees be domiciled within its jurisdiction
Matter of Ball v City of Syracuse, 60 AD3d 1312; Motion for leave to appeal denied, 63 AD3d 1671

The significant issue Ball case is the legal distinction between an individual?s domicile and his or her residence. The term ?domicile? is defined as the individual?s ?permanent place of abode;? a ?residence? is simply the place where one happens to be residing at a particular moment in time.

One may only have one domicile at a time; he or she may have many residences simultaneously, one of which may be his or her domicile. For example, an individual's residence and domicile could be "co-located" or the domicile could be in one jurisdiction and the residence -- the location at which the individual is actually living -- in another jurisdiction.*

The Ball lawsuit challenges the City of Syracuse's requirement that City employees to be domiciled in the City.

Larry Ball and a number of other former City employees sued Syracuse claiming that they had been wrongfully terminated them from their employment as a result of the City ?acting arbitrarily by interpreting the City Charter to require its employees to be "domiciled" in the City rather than simply a "resident" of the City.?

The Appellate Division sustained Supreme Court?s denial of the City?s motion to dismiss Ball?s petition, noting that ?there is no evidence in the record with respect to the actual domicile of Ball [and the other petitioners].

According, said the court, Supreme Court properly denied the City's motion to dismiss the petitions based on the record before it.

The Appellate Division explained that "In determining motions to dismiss in the context of [a CPLR] Article 78 proceeding, a court may not look beyond the petition and must accept all allegations in the petition as true . . . where, as here, no answer or return has been filed." Here there was nothing in the record indicating the domicile of the individuals involved.

Accordingly, the matter was remanded to Supreme Court for its further consideration.

* See, also, Informal Opinions of the Attorney General 1977 OAG 271.

Full post as published by New York Public Personnel Law on February 12, 2010 (boomark / email).