text:
    [987 NE2d 264, 964 NYS2d 487]
    The People of the State of New York, Respondent, v Stephen DeProspero, Appellant.
    Argued February 12, 2013;
    decided March 26, 2013

      POINTS OF COUNSEL

      Frank Policelli, Utica, for appellant.
    The search of Stephen DeProspero’s digital camera after the criminal proceedings had terminated was a warrantless search requiring suppression under both the State and Federal Constitutions. (United States v $490,920 in United States Currency, 911 F Supp 720; Matter of Documents Seized Pursuant to Search Warrant, 124 Misc 2d 897; Matter of DeBellis v Property Clerk of City of N.Y., 79 NY2d 49; People v Scott, 79 NY2d 474; United States v Jeffers, 342 US 48; Coolidge v New Hampshire, 403 US 443; Stanley v Georgia, 394 US 557; United States v Harrell, 530 F3d 1051; United States v Carey, 172 F3d 1268; United States v LaFatch, 565 F2d 81.)

      Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
    I. The inspection of digital media seized pursuant to a lawful judicial order was proper. (McClendon v Rosetti, 460 F2d 111; Matter of DeBellis v Property Clerk of City of N.Y., 79 NY2d 49; United States v Jeffers, 342 US 48; United States v LaFatch, 565 F2d 81; Matter of Sea Lar Trading Co. v Michael, 94 AD2d 309, 60 NY2d 860; United States v $490,920 in United States Currency, 911 F Supp 720; United States v Harrell, 530 F3d 1051; United States v Farrell, 606 F2d 1341; One 1958 Plymouth Sedan v Pennsylvania, 380 US 693.) II. The United States Constitution imposes no deadline for the forensic examination of evidence seized lawfully. (Warden, Md. Penitentiary v Hayden, 387 US 294; United States v Poller, 43 F2d 911; Brigham City v Stuart, 547 US 398; United States v Knights, 534 US 112; Wyoming v Houghton, 526 US 295; People v Galak, 80 NY2d 715; United States v Brignoni-Ponce, 422 US 873; South Dakota v Opperman, 428 US 364; Colorado v Bertine, 479 US 367; Katz v United States, 389 US 347.) III. Law enforcement, prosecutors and the courts have a common-law obligation to prevent the return of contraband to any individual. (United States v Jeffers, 342 US 48; One 1958 Plymouth Sedan v Pennsylvania, 380 US 693; Carroll v United States, 267 US 132; Sullivan v Grupposo, 77 Misc 2d 833; Jacobson v United States, 503 US 540; Simpson v St. John, 93 NY 363; Wise v Henkel, 220 US 556; Matter of Moss v Spitzer, 19 AD3d 599; DXB Video Tapes v Halay, 239 AD2d 205; SSC Corp. v State of N.Y. Organized Crime Task Force, 128 AD2d 860.)
   OPINION OF THE COURT

Chief Judge Lippman.

Defendant entered a plea to predatory sexual assault against a child after his motion to suppress evidence alleged to have been obtained by the State in consequence of an illegal search was denied. That evidence, consisting of several hundred still-frame digital images depicting defendant engaged in a sexual act with a child, was found on the memory card of a digital camera seized from defendant’s residence pursuant to a warrant issued on May 4, 2009 and executed the following day. The forensic examination of the memory card and other digital media devices seized pursuant to the warrant was, for the most part, not performed until January 2010. In the interim, however, defendant was prosecuted for and, in September 2009, pleaded guilty to one count of possessing a sexual performance by a child, based on a single pornographic image of a child found on his computer during a preliminary on-site examination of that device at the time of the warrant’s execution.

After defendant served the prison sentence imposed upon his September 2009 conviction, and after his time to appeal from the judgment of conviction elapsed, his attorney, in December 2009, contacted the Oneida County prosecutor who had handled the matter, and requested the return of the various items seized from defendant’s residence pursuant to the May 2009 warrant. The prosecutor responded that he could not return items containing contraband images and that he would have to ascertain from the State Police laboratory, which had been in possession of the sought property since the warrant’s return, whether the various digital devices seized from defendant’s home were clean. On contacting the laboratory, however, the prosecutor learned that the devices had not yet been forensically examined. It was only when they were finally examined a relatively short time later that the still-frame images upon which defendant’s presently challenged predatory sexual assault conviction is based were discovered.

Although defendant sought suppression of the evidence obtained in the search of his home upon the ground that the warrant authorizing the search was issued on a deficient predicate, that contention is no longer pressed, and, indeed, it is clear that, as the motion court found, the state investigator’s affidavit submitted in support of the warrant application, detailing the tracing of numerous child pornography downloads to an IP address used under an Internet account bearing defendant’s name and address, amply established probable cause for the requested search and seizure. Nor is there any current contention that the warrant was overbroad or that the search and seizure performed on May 5, 2009 exceeded the warrant’s scope. The presently relevant claim is rather that by the time of the January 2010 forensic examination yielding the inculpatory still-frame images, the authority provided by the May 4, 2009 warrant had lapsed—that in the absence of fresh judicial authorization, the January 2010 search was illegal and the evidence obtained from it therefore inadmissible.

County Court, in denying defendant’s suppression motion, and the Appellate Division, in its decision affirming the judgment convicting defendant (91 AD3d 39 [2011]), rejected this contention, and, the matter having now come before us pursuant to permission granted by a Judge of this Court (18 NY3d 957 [2012]), we reject it as well.

Although the issue is far from settled, we assume for present purposes in defendant’s favor that the illegal retention of property by the state subsequent to an initial lawful seizure is redressable as a Fourth Amendment violation, that is to say as a continuing “seizure” which at some point subsequent to its inception lost its justifying predicate. Even while hypothetically allowing the viability of the theory, however, it is plain that it cannot avail defendant on the present facts.

The Fourth Amendment prohibition against unreasonable searches and seizures is now prevalently understood to protect what an individual may legitimately expect to keep private against unwarranted intrusion by agents of the state (Katz v United States, 389 US 347, 351 [1967]). It is, then, ordinarily elemental to the viability of a claim of a Fourth Amendment violation, that its proponent is able to allege a legitimate expectation of privacy in the places or items said to have been illegally searched or seized (Rakas v Illinois, 439 US 128 [1978]; People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]).

Here, it is plain that in the aftermath of the execution of the valid May 4, 2009 warrant, defendant was deprived of any legitimate expectation of privacy he may have had respecting the seized items, which were, pursuant to the warrant and warrant return, to be retained by the police for an unspecified period “for the purpose of further analysis and examination.” Defendant does not argue to the contrary. Rather, he contends that in advance of the January 2010 laboratory examination of his property the legitimate expectation of privacy lost by reason of the warrant’s execution was restored. This, he says, occurred when the prosecution culminating in his September 2009 conviction for possessing a sexual performance by a child ran its course, and the seized items were no longer useful in that or any other pending criminal proceeding. Defendant points out that when, in December 2009, his attorney requested the return of his property, there was no outstanding criminal matter to which the seized items or their contents were assertedly relevant, and evidently no new prosecution was then in the offing.

It does not, however, follow that the authority of the warrant should be understood to have waned, or defendant’s legitimate expectations as to the privacy of his seized property to have commensurately waxed. Defendant’s property had been seized upon probable cause to believe that he had repeatedly used it to engage in felonious conduct punishable pursuant to Penal Law article 263. Nothing had happened since the warrant was signed to diminish the cause for its issue. Certainly, defendant’s intervening child pornography conviction did not sap the warrant of its justifying predicate; nor did the winding-up of the prosecution resulting in that conviction. It is manifest that the continued validity of a search warrant and any assumption of custody it authorizes is not necessarily tied to the pendency of any particular prosecution (see CPL 690.55 [2]). The duration of a warrant’s authority is more appropriately measured by the persistence of the cause for its issue. Here, the predicate for the seizure and examination of defendant’s digital media devices was at least as compelling in January 2010 as it had been in May 2009. This being so, there appears no reason to conclude that the warrant did not at the time of the state laboratory examination remain valid and allow both the State’s continued custody of the seized property and the “lesser-related intrusion” involved in that property’s inspection (see People v Natal, 75 NY2d 379, 384 [1990], cert denied 498 US 862 [1990]). It is plain that defendant had no relevant expectation of privacy to ground a Fourth Amendment-based suppression claim.

Even were we to understand, and in theory allow, defendant’s suppression claim as one premised not on his expectation of privacy, but entirely upon his property rights and the State’s alleged wrongful interference with them, the claim would not be viable in light of the warrant’s continued validity. Indeed, given the unabated probable cause to believe that the seized items contained contraband images, any reunification of defendant with his property would have been conditioned, as it in fact was, upon the conduct of the analysis and examination contemplated by the warrant, if only to assure that the release of the property would not entail the commission of a new possessory offense and the reintroduction of child pornography into the public domain. And, although the parties do not argue the point, it seems that some or all of the property here, even if not contraband, might have been subject to forfeiture as instrumentalities of crime in a proceeding brought under CPLR 1311.

We note that neither the Fourth Amendment nor its New York State analogue (NY Const, art I, § 12) specifically limit the length of time property may be held following a lawful seizure. Nor is such a limitation evident from the text of New York’s statute governing the disposition of evidence obtained by warrant (CPL 690.55). But the statutory omission is likely no more than a concession to the impossibility of usefully prescribing uniform limitations in this context; it, of course, does not signify that private property obtained under the authority of a warrant may be effectively confiscated without a further showing of justification. Obviously, it would not be compatible with due process for the state to retain property under color of a search warrant beyond the exhaustion of any law enforcement purpose adequate to justify the withholding (see Matter of DeBellis v Property Clerk of City of N.Y., 79 NY2d 49, 57 [1992]). And, while we do not exclude the hypothesis that such a withholding would be redressable as well as an unreasonable seizure, the viability of that theory is a matter we need not and do not decide, since, as noted, no claim that would fit within it is made out by the present facts.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Graffeo, Read, Smith, Pigott and Rivera concur.

Order affirmed.

      . It was explained at the hearing held on defendant’s suppression motion that the delay in examining his digital storage devices was occasioned by the Computer Forensic Laboratory’s policy of prioritizing examinations of the many devices awaiting its inspection based on certain indicia of urgency not present in defendant’s case.

      . Although the Supreme Court, arguably, has implicitly recognized that a “seizure” within the meaning of the Fourth Amendment may continue beyond the initial taking (see e.g. United States v Place, 462 US 696 [1983]), the issue has been closely debated in the federal circuits, several of which have held that the Fourth Amendment has no bearing where a claim relates to the legality of the government’s retention of property following a legal seizure, because the subsequent retention is not itself a “seizure” (see e.g. Lee v City of Chicago, 330 F3d 456, 460-466 [7th Cir 2003]; Fox v Van Oosterum, 176 F3d 342, 349-352 [6th Cir 1999]).


source: Caselaw Access Project

author: Graffeo, J.

license: Public Domain

text:
    [986 NE2d 914, 964 NYS2d 80]
    Geoffrey Gelman, Respondent, v Antonio Buehler, Appellant.
    Argued February 7, 2013;
    decided March 26, 2013

      POINTS OF COUNSEL

      Niehaus LLP, New York City (Paul R. Niehaus and S. Gabriel Hayes-Williams of counsel), for appellant.
    I. The Appellate Division improperly reinstated plaintiffs breach of contract claim. (Prince v O’Brien, 234 AD2d 12; Wahl v Barnum, 116 NY 87; Shandell v Katz, 95 AD2d 742; Bayer v Bayer, 215 App Div 454; Sanley Co. v Louis, 197 AD2d 412; Harshman v Pantaleoni, 294 AD2d 687; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553; Cooke v Dodge, 168 Misc 561; Locke v Benton & Bowles, Inc., 253 App Div 369; Haines v City of New York, 41 NY2d 769.)

      Geoffrey Gelman, respondent pro se.
    I. The instant partnership was not at will. (Harshman v Pantaleoni, 294 AD2d 687; Sanley Co. v Louis, 197 AD2d 412; Scholastic, Inc. v Harris, 259 F3d 73; St. Lawrence Factory Stores v Ogdensburg Bridge & Port Auth., 202 AD2d 844; Hooker Chems. & Plastics Corp. v International Mins. & Chem. Corp., 90 AD2d 991; Hardin v Robinson, 178 App Div 724; Haines v City of New York, 41 NY2d 769; Napoli v Domnitch, 18 AD2d 707, 14 NY2d 508; Community Capital Bank v Fischer & Yanowitz, 47 AD3d 667; Matter of Steinbeck v Gerosa, 4 NY2d 302.) II. There is no requirement for a written partnership agreement. (Shandell v Katz, 95 AD2d 742; Mendelovitz v Cohen, 20 Misc 3d 1146[A], 2008 NY Slip Op 51893[U]; Hooker Chems. & Plastics Corp. v International Mins. & Chem. Corp., 90 AD2d 991; F&K Supply v Willowbrook Dev. Co., 304 AD2d 918; Zimmerman v Harding, 227 US 489; Klein v Greenberg, 461 F Supp 653.)
   OPINION OF THE COURT

Graffeo, J.

Partnership Law § 62 (1) (b) states that a partnership formed by oral agreement may be dissolved unilaterally if “no definite term or particular undertaking is specified” in the underlying agreement. Because the parties in this case did not sufficiently address either of these provisions in their oral contract, we conclude that there was no breach of contract when one party withdrew from the enterprise.

According to the allegations in the complaint, which we must accept as true, plaintiff Geoffrey Gelman and defendant Antonio Buehler were recent business school graduates who decided to form a partnership in 2007. Buehler had proposed a plan to Gelman aimed at acquiring $600,000 from investors for the purpose of establishing a “search fund” to research and identify a business with growth potential. A second investor solicitation was contemplated to raise any additional funding needed to pay the purchase price of the targeted business. Buehler and Gelman were to manage the business with the goal of increasing its value until it could be sold at a profit—they referred to this future occurrence as the “liquidity event”—and the investors would share in the profits realized from the sale. Gelman accepted Buehler’s proposal and the partnership was formed by oral agreement. Buehler and Gelman expected that the business plan would reach its objective in four to seven years.

The partners apparently pursued prospective investors for several months. Buehler withdrew from the venture after Gelman refused his demand for majority ownership of the partnership. As relevant to this appeal, Gelman sued Buehler for breach of contract, claiming that Buehler could not unilaterally terminate his obligations under the agreement. Buehler moved to dismiss the complaint on the ground that dissolution was permissible under Partnership Law § 62 (1) (b) because the oral agreement did not include a “definite term or particular undertaking.” Supreme Court granted Buehler’s motion to dismiss, concluding that the complaint failed to allege that the partnership agreement provided for a definite term or a defined objective.

The Appellate Division modified by reinstating the breach of contract cause of action, reasoning that the complaint adequately described a “definite term” by its reference to the liquidity event and sufficiently alleged a “specific undertaking of acquiring a business and expanding it until the investors would receive a return on their capital investments” (91 AD3d 425, 425-426 [1st Dept 2012]). Two Justices dissented, concluding that the partnership was dissolvable at will under Partnership Law § 62 (1) (b) because the oral agreement contained neither a definite term nor a particular undertaking. Buehler now appeals on the basis of a question that the Appellate Division certified to us.

The common law provided that “a contract of partnership, containing no stipulation as to the time during which it shall continue in force . . . may be dissolved by either partner at his own will at any time” (Karrick v Hannaman, 168 US 328, 333-334 [1897]), unless the “partnership has for its object the completion of a specified piece of work, or the effecting of a specified result” (Hardin v Robinson, 178 App Div 724, 729 [1st Dept 1916]). The Uniform Partnership Act of 1914 proposed that these concepts be codified through the use of the phrase “definite term or particular undertaking” (Uniform Partnership Act § 31 [1] Ob]). When New York enacted its Partnership Law several years later, it incorporated the Act’s suggestion (see L 1919, ch 408). As it reads today, Partnership Law § 62 (1) (b) states that a partnership may be dissolved “[b]y the express will of any partner when no definite term or particular undertaking is specified” in the partnership agreement. In this appeal, we are asked to decide whether the allegations in Gelman’s complaint set forth a “definite term” or identify the particular objective sought to be achieved with the requisite specificity.

Since the enactment of the Partnership Law in New York, courts in other jurisdictions have held that the commonly-used statutory phrase—a “definite term”—is intended to be durational in nature and refers to an identifiable termination date (see e.g. Scholastic, Inc. v Harris, 259 F3d 73, 85-86 [2d Cir 2001]; Johnson v Kennedy, 350 Mass 294, 298, 214 NE2d 276, 278 [1966]; Posner v Miller, 356 Mich 6, 9, 96 NW2d 110, 111-112 [1959]; Nicholes v Hunt, 273 Or 255, 261-262, 541 P2d 820, 823-824 [1975]; Willman v Beheler, 499 SW2d 770, 775 [Mo 1973]; Fisher v Fisher, 83 Cal App 2d 357, 360, 188 P2d 802, 804 [1948]). A “particular undertaking” has been defined to require a specific objective or project that may be accomplished at some future time, although the precise date need not be known or ascertainable at the time the partnership is created (see e.g. Tropeano v Dorman, 441 F3d 69, 77-78 [1st Cir 2006] [“Business activities which may continue indefinitely are not ‘particular’ in nature and do not constitute particular undertakings”]; Scholastic, Inc. v Harris, 259 F3d at 86; Fischer v Fischer, 197 SW3d 98, 104 [Ky 2006], quoting Girard Bank v Haley, 460 Pa 237, 244, 332 A2d 443, 447 [1975]; Miami Subs Corp. v Murray Family Trust, 142 NH 501, 509, 703 A2d 1366, 1371 [1997]; Harshman v Pantaleoni, 294 AD2d 687, 688 [3d Dept 2002]).

Applying similar meanings to the terminology in Partnership Law § 62 (1) (b), we believe that Gelman’s complaint lacks a fixed, express period of time during which the enterprise was expected to operate. Instead, the complaint alleges a flexible temporal framework: the parties were to solicit investments for an indefinite length of time; conduct an open-ended (possibly two-year) search for an unidentified business in an unknown business sector or industry; secure additional capital investments over the course of an unspecified period of time; and then purchase and operate the enterprise for an indeterminate duration (perhaps four to seven years) until a liquidity event would hopefully occur. Since the complaint does not set forth a specific or even a reasonably certain termination date, it does not satisfy the “definite term” element of section 62 (1) (b).

Furthermore, when the entire scheme is considered, the alleged sequence of anticipated partnership events detailed in the complaint are too amorphous to meet the statutory “particular undertaking” standard for precluding unilateral dissolution of a partnership. The stages of the plan, as alleged by Gelman, were to: (1) raise money; (2) identify a business to buy; (3) raise more money to purchase the business; (4) “operate the business to increase its value”; (5) “achieve the liquidity event”; (6) “sell the business”; and (7) secure profit from the sale. But these objectives are fraught with uncertainty and are less definitive than the declarations referring to specific industries that have been found to be inadequate by other courts (see e.g. Scholastic, Inc., 259 F3d at 86 [objective of the partnership was the “ ‘development, packaging, production and distribution of theatrical feature films . . . while also involved ... in television development and production’ ”]; Sanley Co. v Louis, 197 AD2d 412, 413 [1st Dept 1993] [partnership’s purpose was to acquire, manage and resell real estate]). In contrast, the Third Department ruled that the “particular undertaking” requirement was satisfied in St. Lawrence Factory Stores v Ogdensburg Bridge & Port Auth. (202 AD2d 844, 845 [3d Dept 1994]) because the agreement identified the specific purpose of the partnership as the development and construction of a retail factory outlet center on an identified parcel of real property. Nothing in Gelman’s complaint approaches such precision.

In the absence of a definite term of duration or a particular undertaking to be achieved, the partnership agreement at issue, however well-intended, was dissolvable at will by either partner under Partnership Law § 62 (1) (b). Consequently, defendant Buehler is entitled to dismissal of the breach of contract cause of action.

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the breach of contract cause of action of the complaint dismissed, and the certified question answered in the negative.

Chief Judge Lippman and Judges Read, Smith and Pigott concur; Judge Rivera taking no part.

Order, insofar as appealed from, reversed, with costs, the breach of contract cause of action of the complaint dismissed, and the certified question answered in the negative.

      . The Uniform Act has been updated but continues to use “definite term or particular undertaking” (see Uniform Partnership Act [1997] §§ 406 [a]; 602 [b] [2]).

      . The error in the Appellate Division’s rationale was that it equated “definite term” with the liquidity event—a possible future occurrence from which an identifiable termination date was not ascertainable at the outset of the partnership.


author: Read, J.

text:
    [987 NE2d 233, 964 NYS2d 456]
    In the Matter of Karri Beck-Nichols, Respondent, v Cynthia A. Bianco, as Superintendent of Schools of the City School District of the City of Niagara Falls, New York, et al., Appellants. In the Matter of Roxanne Adrian, Appellant, v Board of Education of City School District of City of Niagara Falls et al., Respondents. In the Matter of Keli-Koran Luchey, Respondent, v Board of Education of City School District of the City of Niagara Falls et al., Appellants.
    Argued January 8, 2013;
    decided February 19, 2013

      POINTS OF COUNSEL

      Hurwitz & Fine, P.C., Buffalo (Michael F. Perley, Todd C. Bushway, Cassandra A. Kazukenus and Angelo Massaro of counsel), for appellants in the first above-entitled proceeding.
    I. Under either the substantial evidence or arbitrary and capricious standard of review, the Niagara Falls Board of Education’s decision was rationally based and should be upheld. (Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Silberfarb v Board of Coop. Educ. Servs., Third Supervisory Dist., Suffolk County, 60 NY2d 979; Matter of Bevacqua v Sobol, 176 AD2d 1; Sheerin v New York State Div. of Substance Abuse Servs., 844 F Supp 909; Matter of County of Cayuga v McHugh, 4 NY2d 609; Matter of Hecht v Monaghan, 307 NY 461; Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Miller v DeBuono, 90 NY2d 783.) II. The Appellate Division’s misapplication of the standard of review improperly shifted the burden of proof to respondent. (Matter of Condell v Jorling, 151 AD2d 88; Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318; Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498.) III. The Appellate Division exceeded its authority when it usurped the Niagara Falls Board of Education’s right to weigh the evidence. (Matter of Marsh v Hanley, 50 AD2d 687; Matter of 780 P.P. Assoc. v State of N.Y. Div. of Hous. & Community Renewal, 11 AD3d 392; Matter of Stork Rest. v Boland, 282 NY 256.)

      Reden & O’Donnell, LLP, Buffalo (Robert J. Reden and Terry M. Sugrue of counsel), for respondent in the first above-entitled proceeding.
    I. Appellants’ decisions to terminate Karri Beck-Nichols’ employment was arbitrary and capricious. (George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Matter of Newcomb, 192 NY 238; Matter of Hosley v Curry, 85 NY2d 447; Matter of Larkin v Herbert, 185 AD2d 607; Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498; Unanue v Unanue, 141 AD2d 31; Matter of Gadway, 123 AD2d 83; Gould v Gould, 235 NY 14; Matter of Gallagher v Dinkins, 41 AD2d 946, 32 NY2d 839.) 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. (Matter of Gigliotti v Bianco, 82 AD3d 1636; Matter of Krajkowski v Bianco, 85 AD3d 1577, 17 NY3d 712; Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254, 10 NY3d 928; Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498.) III. The Appellate Division properly found that appellants’ determination that there was clear and convincing evidence that Karri Beck-Nichols changed her domicile was arbitrary and capricious. (Matter of Newcomb, 192 NY 238; Matter of Hosley v Curry, 85 NY2d 447; Matter of Westchester County Med. Ctr. [O’Connor], 72 NY2d 517; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211; Matter of Babbin v State Tax Commn., 49 NY2d 846; Matter of Gray v Tax Appeals Trib. of State of N.Y., 235 AD2d 641; Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498.)

      Office of General Counsel, New York State United Teachers, Latham (Anthony J. Brock and Richard E. Casagrande of counsel), for appellant in the second above-entitled proceeding.
    I. Petitioner was entitled to a hearing prior to being terminated for allegedly violating respondents’ residency policy because, as a tenured teacher, she enjoyed a constitutionally protected property interest in her continued public employment. (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446; Board of Regents of State Colleges v Roth, 408 US 564; Cleveland Bd. of Ed. v Loudermill, 470 US 532; Matter of

      Economico v Village of Pelham, 50 NY2d 120; Matter of Prue v Hunt, 78 NY2d 364; Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254; Mathews v Eldridge, 424 US 319; Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450; Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385.) II. The Board of Education of the City School District of the City of Niagara Falls and Cynthia A. Bianco violated Roxanne Adrian’s statutory right to a hearing under the Education Law because the procedures under Education Law § 3020-a are the exclusive procedures for terminating a tenured teacher. (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446; Matter of Lynch v Nyquist, 41 AD2d 363, 34 NY2d 588; Matter of Mannix v Board of Educ. of City of N.Y., 21 NY2d 455; Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385; People ex rel. Murphy v Maxwell, 177 NY 494; Matter of Boyd v Collins, 11 NY2d 228; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450; Matter of Kobylski v Agone, 37 Misc 2d 255, 19 AD2d 761; Matter of Glass v Board of Educ. of City of N.Y., 21 AD2d 891, 16 NY2d 982; Matter of Fitzpatrick v Board of Educ. of Mamaroneck Union Free School Dist., 96 AD2d 557, 61 NY2d 607.) III. The Appellate Division erred by reversing the Supreme Court determination because the Board of Education of the City School District of the City of Niagara Falls’ and Cynthia A. Bianco’s action terminating petitioner was arbitrary and capricious. (Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254, 10 NY3d 928; Matter of Gigliotti v Bianco, 82 AD3d 1636; Matter of Krajkowski v Bianco, 85 AD3d 1577; Matter of Beck-Nichols v Bianco, 89 AD3d 1405; Matter of Luchey v Board of Educ. of City School Dist. of the City of Niagara Falls, 92 AD3d 1276; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Frick v Bahou, 56 NY2d 777; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832; Matter of Hosley v Curry, 85 NY2d 447.)

      Hurwitz & Fine, P.C., Buffalo (Michael F. Perley, Todd C. Bushway and Cassandra A. Kazukenus of counsel), for respondents in the second above-entitled proceeding.
    I. The process used to terminate Roxanne Adrian fulfilled all necessary due process requirements. (Cleveland Bd. of Ed. v Loudermill, 470 US 532; Board of Regents of State Colleges v Roth, 408 US 564; Perry v Sindermann, 408 US 593; Kinsella v Board of Educ. of Cent. School Dist. No. 7 of Towns of Amherst & Tonawanda, Erie County, 378 F Supp 54; Boddie v Connecticut, 401 US 371; Matter of Prue v Hunt, 78 NY2d 364; Hellenic Am. Neighborhood Action Comm. v City of New York, 101 F3d 877; Interboro Inst., Inc. v Foley, 985 F2d 90; Reed v Medford Fire Dept., Inc., 806 F Supp 2d 594.) II. Roxanne Adrian was not entitled to a hearing under Education Law § 3020-a because her removal was the result of her violation of a condition of employment rather than misconduct or incompetency. (Matter of Orens v Novello, 99 NY2d 180; Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198; Patrolmen’s Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205; Matter of Mannix v Board of Educ. of City of N.Y., 21 NY2d 455; Matter of Fitzpatrick v Board of Educ. of Mamaroneck Union Free School Dist., 96 AD2d 557; Matter of Coriou v Nyquist, 33 AD2d 580; Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254; Matter of Felix v New York City Dept. of Citywide Admin. Servs., 3 NY3d 498; Mandelkern v City of Buffalo, 64 AD2d 279; Matter of Moritz v Board of Educ. of Gowanda Cent. School Dist., 60 AJD2d 161.) III. The standard of review by the Court is whether the Board of Education of the City School District of the City of Niagara Falls’ decision to terminate Roxanne Adrian was arbitrary and capricious. (Matter of Chauvel v Nyquist, 43 NY2d 48; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of 508 Realty Assoc., LLC v New York State Div. of Hous. & Community Renewal, 61 AD3d 753; Matter of Poster v Strough, 299 AD2d 127; Matter of Rodriguez v Goord, 260 AD2d 736; Matter of Martin v Ambach, 111 AD2d 1009; Matter of Spaid v Liverpool Cent. School Dist., 169 Misc 2d 41; Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174.) IV. The Board of Education of the City School District of the City of Niagara Falls’ finding that Roxanne Adrian was not in compliance with the residency policy was not arbitrary and capricious. (Matter of Stone v Gross, 25 AD2d 753, 19 NY2d 675; Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338; Lighthouse Shores v Town of Islip, 41 NY2d 7; Connally v General Constr. Co., 269 US 385; People v Vetri, 309 NY 401; Brad H. v City of New York, 17 NY3d 180;
      Currier, McCabe & Assoc., Inc. v Maher, 75 AD3d 889; Black & Decker [US] v New York State Dept. of Labor Indus. Bd. of Appeals, 177 AD2d 948.) Y. The Appellate Division did not have authority to review the weight of the evidence before it. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174.) VI. The Board of Education of the City School District of the City of Niagara Falls did not deviate from factually similar precedent in determining Roxanne Adrian was not in compliance with the residency policy. (Mater of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Martin [Troy Publ. Co.—Roberts], 70 NY2d 679; Matter of De La Concha v Fordham Univ., 292 AD2d 662.)

      Hurwitz & Fine, P.C., Buffalo (Michael F. Perley and Todd C. Bushway of counsel), for appellants in the third above-entitled proceeding.
    I. The residency policy was enforceable as written, and the lower courts erred in finding the policy vague and unenforceable. (Town of Huntington v Park Shore Country Day Camp of Dix Hills, 47 NY2d 61; Marcus Assoc. v Town of Huntington, 45 NY2d 501; Connally v General Constr. Co., 269 US 385; People v Vetri, 309 NY 401; Matter of Stone v Gross, 25 AD2d 753, 19 NY2d 675; Brad H. v City of New York, 17 NY3d 180; Currier, McCabe & Assoc., Inc. v Maher, 75 AD3d 889; Black & Decker [US] v New York State Dept. of Labor Indus. Bd. of Appeals, 177 AD2d 948; Evans v Famous Music Corp., 1 NY3d 452; Nissho Iwai Europe v Korea First Bank, 99 NY2d 115.) II. The appropriate standard of review on appeal in this matter is whether the Board of Education of the City School District of the City of Niagara Falls’ determination was arbitrary and capricious. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174; Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227; Matter of Shapiro v State Tax Commn., 67 AD2d 191, 50 NY2d 822; Matter of Newcomb, 192 NY 238; Matter of Johnson v Town of Amherst, 74 AD3d 1896; Matter of Bodfish v Gallman, 50 AD2d 457; Matter of Bourne, 181 Misc 238, 267 App Div 876, 293 NY 785; Matter of Peck v Town Bd. of Town of Amherst, 93 AD3d 1326; Matter of Johnson, 259 App Div 290, 284 NY 733.)

      Office of General Counsel, New York State United Teachers, Latham (Anthony J. Brock and Richard E. Casagrande of counsel), for respondent in the third above-entitled proceeding.
    I. The Appellate Division correctly affirmed the Supreme Court determination because appellants’ action terminating petitioner was arbitrary and capricious. (Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254, 10 NY3d 928; Matter of Gigliotti v Bianco, 82 AD3d 1636; Matter of Krajkowski v Bianco, 85 AD3d 1577; Matter of Beck-Nichols v Bianco, 89 AD3d 1405; Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222; Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516; Matter of Frick v Bahou, 56 NY2d 777; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832; Matter of Hason v Department of Health, 295 AD2d 818.) II. Appellants’ residency policy is not entitled to a presumption of validity. (Matter of Stone v Gross, 25 AD2d 753.) III. Respondent was entitled to a hearing prior to being terminated for allegedly violating appellants’ residency policy because, as a tenured school counselor, she enjoyed a constitutionally protected property interest in her continued public employment. (Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446; Board of Regents of State Colleges v Roth, 408 US 564; Cleveland Bd. of Ed. v Loudermill, 470 US 532; Matter of Economico v Village of Pelham, 50 NY2d 120; Matter of Prue v Hunt, 78 NY2d 364; Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254; Mathews v Eldridge, 424 US 319; Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450; Ricca v Board of Educ. of City School Dist. of City of N.Y., 47 NY2d 385.) IV Appellants violated Keli-Koran Luchey’s statutory right to a hearing under the Education Law because the procedures under Education Law § 3020-a are the exclusive procedures for terminating a tenured teacher. (Matter of D’Angelo v Scoppetta, 19 NY3d 663; Matter of Lynch v Nyquist, 34 NY2d 588, 41 AD2d 363; Matter of Mannix v Board of Educ. of City of N.Y., 21 NY2d 455; People ex rel. Murphy v Maxwell, 177 NY 494; Matter of Boyd v Collins, 11 NY2d 228; Matter of Abramovich v Board of Educ. of Cent. School Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450; Matter of Kobylski v Agone, 37 Misc 2d 255, 19 AD2d 761; Matter of Glass v Board of Educ. of City of N.Y., 21 AD2d 891, 16 NY2d 982; Matter of Fitzpatrick v Board

      of Educ. of Mamaroneck Union Free School Dist., 96 AD2d 557, 61 NY2d 607; Matter of Coriou v Nyquist, 33 AD2d 580, 26 NY2d 610.)
   OPINION OF THE COURT

Read, J.

These three cases stem from a residency policy that calls for those employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy’s effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment. The policy’s implementing regulations define “residency” as “an individual’s actual principal domicile at which he or she maintains usual personal and household effects.”

L

Karri Beck-Nichols

The District hired Beck-Nichols as a computer operator in July 1994, and promoted her to the position of production control manager in 2005. When she first began to work for the District, Beck-Nichols resided at a house on J. Avenue in Niagara Falls, which she and her husband owned. In 2001, Beck-Nichols and her husband purchased a house in Lewiston, New York, and, upon being asked, Beck-Nichols informed the District’s Administrator for Human Resources (the Administrator) that she remained domiciled in Niagara Falls. Beck-Nichols again assured the District she was domiciled in Niagara Falls on December 3, 2003, when she signed a “residency confirmation.”

By letter dated June 7, 2004, the Administrator directed Beck-Nichols to attend an “interview conference” for her to present information substantiating compliance with the residency policy. At this meeting, Beck-Nichols, who was accompanied by her attorney, stated that she was residing with her parents and a nephew, of whom she had custody, at her parent’s house on C. Avenue in Niagara Falls; that she and her husband were renting out their house on J. Avenue, but intended eventually to return there; and that her husband and three children were residing at the house in Lewiston, where the children attended school.

On January 21, 2009, Beck-Nichols filed an “Employee Change of Address Form” with the District’s Office of Human Resources, claiming residency at the J. Avenue address again. On February 10, 2009, the Administrator wrote to Beck-Nichols, telling her that the District had “reason to believe that [she was] in violation of [the residency] policy”; and scheduling a “residency affirmation meeting” with her for the District “to secure additional information and/or documentation supporting [her] affirmation and continued residency in [Niagara Falls].” This letter was prompted by a Westlaw database search conducted in December 2008, which turned up the Lewiston address for Beck-Nichols.

Beck-Nichols, with her attorney, appeared at the meeting, held on March 25, 2009. To verify compliance with the residency policy, she supplied copies of utility bills and a cable bill addressed to her at the J. Avenue address; a recent voter registration card and driver’s license, showing her address as J. Avenue; and a statement for a home equity line of credit for the J. Avenue house, addressed to Beck-Nichols and her husband. At this meeting, the District’s attorney brought up the application for exemption from school property taxes under the New York State School Tax Relief Program (STAR), signed by Beck-Nichols and her husband on May 10, 2001 as “resident owners,” in which they certified that they owned the Lewiston property; that it was their “primary residence”; and that they understood their obligation to notify the assessor if they relocated to another primary residence. He also raised information showing that tax bills for the J. Avenue property were sent to Beck-Nichols and her husband at the Lewiston address.

Meanwhile, the District had engaged a private company to conduct surveillance, which took place on four days in February, three in March and one in May. The investigators observed Beck-Nichols at the Lewiston address on the first two days of surveillance in February, which were weekdays that she did not work, and on the third day, another weekday, they spotted her vehicle in the parking lot at her workplace. On the fourth day, the investigators followed Beck-Nichols from work to the J. Avenue address, which she entered and exited eight minutes later, and to another residence in Niagara Falls, which she entered and exited 36 minutes later. The investigators noted that as they continued mobile surveillance, Beck-Nichols “[began] driving at high rates of speed and somewhat evasively”; and that she “continue[d] to travel at a high rate of speed pulling into [the] driveway and directly into the garage” at the Lewiston address. Surveillance was discontinued at 7:00 p.m.

The first day of surveillance in March, a Sunday, Beck-Nichols was observed at the Lewiston address; the second day, a weekday, she drove after work to the J. Avenue address, which she entered and exited 29 minutes later; she then drove to the Lewiston address, and “quickly pull[ed] into the garage as the door close[d] behind”; surveillance was discontinued at 8:00 p.m. On the third day, a weekday, an investigator observed Beck-Nichols leaving the J. Avenue address in the morning, on her way to work. On the single day of surveillance in May, a weekday, Beck-Nichols drove to the Lewiston address after work; she left at 11:40 p.m., “travelling] at high rates of speed and rather evasively” toward Niagara Falls. She arrived at the J. Avenue address at 11:56 p.m., where she appeared to “take[ ] notice” of a second investigator’s “surveillance position[,] . . . walk[ing] around [the] vehicle before entering the residence.” The investigators then established a different observation point; they discontinued surveillance at 1:00 a.m. since it seemed that Beck-Nichols had retired for the night. In the case summary for the investigation, the author noted that Beck-Nichols “appeared to be very suspicious of our surveillance.”

On July 10, 2009, the Administrator wrote Beck-Nichols, enclosing a summary of the March 25th meeting and copies of documents referred to in the summary, as well as a copy of the new STAR application for the Lewiston property, dated June 9, 2009, which she had supplied to him the previous day. This application was signed only by Beck-Nichols’ husband as “resident owner[ ].” The Administrator noted that all this information would be submitted to the Niagara Falls Board of Education (the Board) for review, and later in July, the Board considered Beck-Nichols’ case. Based on the record compiled, the Board concluded that Beck-Nichols did not appear to comply with the residency policy. In accordance with the policy’s implementing regulations, the Administrator sent Beck-Nichols a “seven-day letter,” dated July 30, 2009, to notify her that the Board had “reason to believe” that she was in violation of the policy, and to give her seven days to respond in writing.

By letter dated August 4, 2009, Beck-Nichols replied that she had maintained the J. Avenue address as her “permanent domicile” throughout 15 years of employment in the District, and had furnished “voter registration, utility bills, driver’s license, and other information” to prove this was the case; that her promotion in 2005 led her to believe that the 2004 investigation had ended in her favor; and that she was a tireless worker whose record was “without blemish.” She requested the Board reconsider. By letter dated August 14, 2009, the Administrator offered to meet with Beck-Nichols on August 18, 2009, to provide additional documents. At this meeting, Beck-Nichols was given a copy of the surveillance report; she and her attorney acknowledged that, at some point, she knew she was being followed. On August 21, 2009, the Administrator sent Beck-Nichols a “30-day letter” to notify her that, at the Board’s September meeting, the Superintendent of Schools (the Superintendent) would recommend termination of her services for failure to comply with the residency policy.

On September 24, 2009, the Board terminated Beck-Nichols’ employment, effective the next day; on December 21, 2009, she commenced this CPLR article 78 proceeding against the Superintendent, the Board’s President, the Board and the District, seeking to set aside the Board’s determination. Beck-Nichols argued that the termination of her employment was arbitrary and capricious because the District did not prove by clear and convincing evidence that she had abandoned her domicile in Niagara Falls.

Supreme Court transferred the case to the Appellate Division, which annulled the determination, on the law, and granted the petition (89 AD3d 1405 [4th Dept 2011]). The court noted “at the outset” that Supreme Court had improperly transferred the case because the Board’s decision did “not involve a substantial evidence issue” {id. at 1406, citing Matter of Krajkowski v Bianco, 85 AD3d 1577, 1578 [4th Dept 2011], lv denied 17 NY3d 712 [2011]). Nonetheless, the Appellate Division reached the merits “in the interest of judicial economy” {id. [internal quotation marks omitted]). The Court agreed with Beck-Nichols that the District was required to muster clear and convincing evidence to show that she had changed her domicile, and did not meet this burden. We subsequently granted leave to appeal (18 NY3d 807 [2012]), and now reverse.

Roxanne Adrian and Keli-Koran Luchey

Adrian

Adrian was appointed a teacher in the District as of September 1, 2003, and later acquired tenure. When hired, she signed an employment agreement, acknowledging that she was required to establish residency in Niagara Falls, within the meaning of the residency policy, within six months of her initial appointment; in this agreement, she identified her domicile at the time as an address in Williamsville, New York. On December 12, 2003, the Administrator wrote to Adrian, reminding her that the six-month grace period ended on March 1, 2004. In response, Adrian requested an extension, which the Board granted. On August 11, 2004, Adrian submitted a change of address form, notifying the District that she resided in Niagara Falls at an address on 73rd Street. On August 15, 2006, she submitted a change of address for mailing only; the mailing address was a post office box in Niagara Falls.

A Westlaw database search, conducted in January 2009, indicated that Adrian still resided at the Williamsville address; a record maintained by the State Education Department, obtained in March 2009, disclosed that Adrian had apparently used the Williamsville address when she applied for permanent certification, which was granted in 2007. On April 1, 2009, the Administrator wrote to Adrian, informing her that the District had “reason to believe that [she was] in violation of [the residency] policy”; and scheduling an “interview conference” with her for the District “to secure additional information and/or documentation supporting [her] affirmation and continued residency in [Niagara Falls].”

At this meeting, held on May 12, 2009, Adrian, accompanied by her attorney and union representatives, identified the 73rd Street address in Niagara Falls as her residence. She claimed to live on the second floor in an apartment with a bathroom, bedroom and living room, and a kitchen with a small refrigerator and microwave oven; she produced a lease for the period September 1, 2008 through June 30, 2009, and receipts for rent payments of $350 per month since September 2008. She provided copies of correspondence or documents identifying her address as 73rd Street in Niagara Falls—i.e., cable bills, a voter registration card, a driver’s license and vehicle registration card. Adrian said that she resided at the Williamsville address with a friend only in the summertime, although she helped out the friend, who suffered from migraine headaches, in the morning before going to work; she did not pay rent at Williamsville; and there was a phone listing for her there, but not at the 73rd Street address.

In the meantime, surveillance was conducted on behalf of the District on two days in March, one in April and two in May. The company engaged by the District to perform this investigation reported that Adrian was observed leaving for work from, or returning from work to, the Williamsville address; she was never seen at the 73rd Street address, including the one occasion when a second investigator was stationed there throughout the afternoon/evening hours until 8:00 a.m. the following morning.

Based on the record compiled, the Board in July.2009 concluded that Adrian did not appear to comply with the residency policy. In accordance with the policy’s implementing regulations, the Administrator sent Adrian a “seven-day letter,” dated July 30, 2009, to notify her that the Board had “reason to believe” that she was in violation of the policy, and to give her seven days to respond in writing. On August 4, 2009, Adrian’s attorney wrote to the Administrator, seeking advice “as to what steps [were] necessary to resolve this matter to [his] client’s satisfaction.” By letter dated August 14, 2009, the Administrator offered to meet with Adrian on August 18, 2009 to provide additional documents. At this meeting, attended by both Adrian’s attorney and union representatives, the District’s attorney handed over a copy of the surveillance report. By letter dated August 20, 2009, Adrian’s attorney furnished the District’s attorney with a voter registration card and a letter and bill from the cable company, all showing a new address for Adrian on C. Avenue in Niagara Falls.

On August 21, 2009, the Administrator sent Adrian a “30-day letter” to notify her that, at the Board’s September meeting, the Superintendent would recommend termination of her services for failure to comply with the residency policy. Adrian’s attorney then wrote the District’s attorney, inquiring as to “what other documentation [would be] necessary” to prevent this from happening; the District’s attorney replied on September 10, 2009 that, after reviewing the information submitted by Adrian as to her change of address to C. Avenue in Niagara Falls, the Board “remain[ed] of the opinion” that she was out of compliance with the policy. By letter dated September 11, 2009, Adrian’s attorney sent the District’s attorney a lease signed by Adrian to rent the C. Avenue property as a personal residence for Adrian and two other individuals.

On September 24, 2009, the Board terminated Adrian’s employment, effective the next day; on December 18, 2009, she commenced this CPLR article 78 proceeding against the Board and the Superintendent. Adrian contended that, as a tenured employee, she was entitled to a pre-termination hearing complying with Education Law §§ 2509 (2), 3020 and 3020-a; that the Board terminated her employment “without sound basis in reason or regard to the facts”; and that the Superintendent failed to establish administrative procedures to carry out the residency policy, rendering both the policy and the Board’s action “incomplete, null, void and of no force and effect.”

Luchey

Luchey signed an affirmation on November 2, 1999, signifying her understanding that she was required to become a resident of Niagara Falls within six months of her appointment to a position in the District, in accordance with the residency policy. On November 19, 1999, she signed an employment agreement to the same effect; in the agreement, she identified her domicile at the time as North Tonawanda, New York. Luchey’s appointment as a school counselor was effective on December 13, 1999. By letter dated March 15, 2000, the Administrator reminded Luchey that the six-month grace period ended on June 13, 2000. In response, Luchey requested an extension, which the Board granted. Before the extension ended, she supplied the District proof of residency at an address on W. Avenue in Niagara Falls; in the fall of 2001, she supplied proof of residency at a new address, E Road in Niagara Falls. On December 8, 2003, Luchey signed an affirmation in which she declared that her residence was E Road in Niagara Falls.

A Westlaw database search, conducted in December 2008, indicated that Luchey resided at an address in Amherst, New York. On April 1, 2009, the Administrator wrote to Luchey, informing her that the District had “reason to believe that [she was] in violation of [the residency] policy”; and scheduling an “interview conference” with her for the District “to secure additional information and/or documentation supporting [her] affirmation and continued residency in [Niagara Falls].” At this meeting, held on April 28, 2009, Luchey, accompanied by her attorney and union representatives, identified an address on L. Avenue in Niagara Falls as her residence. She submitted her driver’s license, car registration, voter registration card, bank statements and other bills or documents listing, or addressed to her at, this address. Luchey described her residence at L. Avenue as a heated basement, with its own shower and kitchen, in a single-family home; she stated that she paid her rent in cash, and had no receipts. Luchey also represented that she and her ex-husband had reached an oral agreement for their seven-year-old son to reside with him in Amherst, although Luchey retained full custody; her son attended school in Amherst.

Prior to the meeting, surveillance had been conducted on behalf of the District during five days in March (four workdays and a Sunday). In four separate observations (on one of the workdays, the investigator was unable to locate Luchey’s vehicle in the school’s parking lot), Luchey was never seen at her purported Niagara Falls address; instead, she left for work from, and returned from work to, the Amherst address discovered in the database search.

On July 10, 2009, the Administrator supplied Luchey with a summary of the April 28th meeting, and asked for further documentation verifying rent payment. Based on the record compiled, the Board in July 2009 concluded that Luchey did not appear to comply with the residency policy. In accordance with the policy’s implementing regulations, the Administrator sent Luchey a “seven-day letter,” dated July 30, 2009, to notify her that the Board had “reason to believe” that she was in violation of the policy, and to give her seven days to respond in writing.

Luchey’s attorney wrote to the Administrator on August 4, 2009, submitting four receipts for rent paid by Luchey, prepared by the owner of the residence at the L. Avenue address; and requesting copies of the documentation relied on by the District. By letter dated August 14, 2009, the Administrator offered to meet with Luchey on August 18, 2009 to provide additional documents related to her compliance with the residency policy. When Luchey did not attend the meeting, apparently because her attorney was unavailable, the surveillance report was telefaxed to a union representative.

On September 24, 2009, the Board terminated Luchey’s employment, effective the next day; on December 18, 2009, she commenced this CPLR article 78 proceeding against the Board and the Superintendent. Like Adrian, Luchey contended that, as a tenured employee, she was entitled to a pre-termination hearing complying with Education Law §§ 2509 (2), 3020 and 3020-a; that the Board terminated her employment “without sound basis in reason or regard to the facts”; and that the Superintendent failed to establish administrative procedures to carry out the residency policy, rendering both the policy and the Board’s action “incomplete, null, void and of no force and effect.”

Decisions Below

Although Adrian’s and Luchey’s lawsuits were not consolidated, their claims were identical, and Supreme Court considered and granted their petitions together. The judge noted that petitioners were not entitled to pre-termination hearings because the residency requirement was “merely a . . . condition of employment,” citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]). But considering the basis for petitioners’ job loss, he characterized the policy’s definition of residency as creating a “vague and ambiguous” standard which, coupled with the Superintendent’s failure to develop adequate procedures and guidelines, “resulted in varied and subjective interpretations leading to disparate results.” The judge therefore held that the residency requirement was unenforceable, and that any termination of Adrian’s and Luchey’s employment based on it was therefore arbitrary and capricious. He directed their reinstatement with full back pay and benefits. The Board and Superintendent appealed.

The Appellate Division considered these appeals separately. One panel reversed the judgment as to Adrian (92 AD3d 1272 [4th Dept 2012]). In the court’s view, the District established that Adrian was not domiciled in Niagara Falls, and therefore the Board’s determination was not arbitrary and capricious. The court also rejected Adrian’s alternative ground for affirmance—i.e., that the District did not conduct a pre-termination trial-type hearing—on the ground that this was not mandated by law. We granted Adrian leave to appeal (19 NY3d 804 [2012]), and now affirm. The other panel affirmed the judgment as to Luchey, without opinion (92 AD3d 1276 [4th Dept 2012]). We granted the Board and Superintendent leave to appeal (20 NY3d 851 [2012]), and now reverse.

IL

A residency policy for municipal workers serves “the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]” (Felix, 3 NY3d at 505, quoting Mandelkern v City of Buffalo, 64 AD2d 279, 281 [4th Dept 1978, Simons, J.]). The District’s residency policy states simply that “[t]he Niagara Falls Board of Education requires that employees hired or promoted after the effective date of this policyt ] be residents of the City of Niagara Falls and maintain their residency during their term of employment.” The implementing regulations, as noted earlier, define “residency” as “an individual’s actual principal domicile at which he or she maintains usual personal and household effects.” This definition may be criticized for redundancy or surplusage, but not ambiguity. The word “domicile” alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls “with intent to make it a fixed and permanent home” (see Matter of Newcomb, 192 NY 238, 250 [1908]).

Further, the regulations provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a “seven-day letter” to afford an employee the opportunity to respond to allegations of noncompliance; include a hardship waiver; and exempt nonadministrative employees hired prior to the policy’s effective date, subject to certain conditions. The regulations also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.

In short, the residency policy and its implementing regulations make clear that District personnel are expected to be domiciled in Niagara Falls within no more than a year after appointment, and throughout their subsequent employment. Nothing in the policy or regulations might reasonably lead a prospective employee into supposing that a mail drop or pied-áterre in the City was sufficient. Indeed, the policy would be pointless if this were enough to satisfy the residency obligation.

Next, we have held that a residency requirement defines eligibility for employment, and so is “unrelated to job performance, misconduct or competency” (see Felix, 3 NY3d at 505; see also Matter of New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, 282 [2010]). Consequently, Adrian and Luchey were not entitled to hearings complying with Education Law §§ 2509 (2), 3020 and 3020-a, which deal with teacher discipline (see Matter of O’Connor v Board of Educ. of City School Dist. of City of Niagara Falls, 48 AD3d 1254 [4th Dept 2008], lv dismissed 10 NY3d 928 [2008]). And due process mandates only notice and some opportunity to respond (see Matter of Prue v Hunt, 78 NY2d 364, 368 [1991] [applying Cleveland Bd. of Ed. v Loudermill, 470 US 532, 543 (1985)]).

Here, the Administrator notified Beck-Nichols, Adrian and Luchey that they were suspected of violating the residency policy. There ensued individual meetings at which they appeared with counsel (and union representatives in two instances), where the District received and offered evidence bearing on their residency. Information developed as a result of the meetings and through surveillance was shared with the employees and submitted to the Board, which concluded that there was reason to believe that Beck-Nichols, Adrian and Luchey were violating the policy. The Administrator then sent a “seven-day letter,” which afforded a last-chance opportunity for these employees to make the case that they, in fact, resided in Niagara Falls within the meaning of the policy. When the evidence or argument presented in response to the letters proved unpersuasive, the Administrator issued a “30-day letter” to inform Beck-Nichols, Adrian and Luchey that the Superintendent would recommend at the next Board meeting that their services be terminated for failure to comply with the residency policy. These notice-and-hearing procedures, which are more extensive than the regulations’ provision for a single notification and opportunity to respond via a “seven-day letter,” easily comply with due process.

Finally, the proper standard for judicial review in these cases is whether the Board’s determination was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [3]). This standard is, of course, an extremely deferential one: “The courts cannot interfere [with an administrative tribunal’s exercise of discretion] unless there is no rational basis for [its] exercise ... or the action complained of is arbitrary and capricious,” a test which “chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact” (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974] [citations and internal quotation marks omitted and emphases added]). Beck-Nichols seeks to create a higher standard by arguing that because she was concededly domiciled in Niagara Falls when hired (unlike Adrian and Luchey), the District was obliged to prove by clear and convincing evidence that she abandoned her domicile; that the District did not meet this standard; and so the Board’s decision to end her employment was perforce arbitrary and capricious. She relies principally on our decision in Matter of Hosley v Curry (85 NY2d 447 [1995]).

In that case, Hosley sought an order disqualifying Curry, the district attorney of Hamilton County, from acting in that capacity on the basis that Curry was, in fact, a resident of Warren County, and so did not satisfy the residency requirements of Public Officers Law §§ 3 and 30. Section 3 (1) provides that “[n]o person shall be capable of holding a civil office who shall not . . . [be] a resident of the political subdivision ... of the state for which he shall be chosen”; section 30 (1) (d) concomitantly specifies that “[e]very office shall be vacant upon . . . [the incumbent’s] ceasing to be an inhabitant ... of the political subdivision ... of which he is required to be a resident when chosen.” Curry owned residences in both Hamilton and Warren Counties. Supreme Court decided that Hosley had not met the burden of proof necessary to declare that Curry was a nonresident of Hamilton County. The Appellate Division reversed, declaring that “Supreme Court’s conclusion could not be reached under any fair interpretation of the [facts],” which were essentially undisputed (207 AD2d 116, 118 [3d Dept 1995]).

First, we held that the terms “resident” and “inhabitant” in sections 3 and 30 were “properly understood to be synonymous with domicile” (Curry, 85 NY2d at 451). Next, we interpreted these statutory provisions to incorporate the definition of domicile and standard of proof specified in Newcomb, a will contest where the decedent’s domicile at death was disputed. As a result, we held that Hosley, who was alleging a change in Curry’s domicile from Hamilton to Warren County, bore the burden to demonstrate by “clear and convincing evidence” that the district attorney possessed a “present, definite and honest purpose to abandon the Hamilton County domicile and make the Warren County residence his fixed and permanent home” {id. at 452). We “conclude[d] that Supreme Court’s determination that [Hosley] failed to sustain the burden more nearly comport[ed] with the weight of the evidence” {id.; see also CPLR 5501 [b]).

Beck-Nichols invites us to extend Curry, which involved the interpretation of statutes governing public officers, to municipal residency requirements applicable to public employees and enforced through administrative, decision making. We decline to make this leap. In any event, there is clear and convincing and, indeed, dispositive evidence that Beck-Nichols abandoned her domicile in Niagara Falls after her initial appointment; namely, in May 2001 she and her husband signed a STAR application in which they certified that the Lewiston address was their “primary residence.” The Board was certainly entitled to disregard the new STAR application filed for the Lewiston property in June 2009 and signed only by Beck-Nichols’ husband. This happened after, and the Board might have reasonably concluded solely because, the District’s attorney questioned Beck-Nichols about the 2001 application at the meeting held in March 2009 to review her residency status. Additionally, of course, Beck-Nichols’ husband and family lived at the Lewiston residence; her children attended school in Lewiston; and Beck-Nichols, who apparently early on figured out that she was being followed and sought to evade surveillance, spent little time at the J. Avenue address in Niagara Falls.

Likewise, the Board rationally concluded that Adrian did not comply with the residency policy. She lived in Williamsville when initially appointed, and the evidence developed during the investigation, discussed earlier, might have reasonably caused the Board to conclude that she never abandoned her domicile there. The trial judge did not decide whether the Board’s decision with respect to Luchey’s residency was rational because he disposed of her case (and Adrian’s) on the ground the policy was unenforceable. We can surmise that the Appellate Division affirmed in Luchey on alternative grounds, given its decision in Adrian upholding the Board’s application of the policy. The Appellate Division affirmed in Luchey without opinion, though, so we do not know the basis for its ruling. In light of this circumstance, we must presume that the Appellate Division, like Supreme Court, did not consider the merits; therefore, we remit for Supreme Court to resolve in the first instance whether the Board’s determination that Luchey did not comply with the residency policy was arbitrary and capricious or an abuse of discretion.

Accordingly, in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion. •

Chief Judge Lippman and Judges Graffeo, Smith and Pigott concur; Judge Rivera taking no part.

In Matter of Beck-Nichols v Bianco: Judgment reversed, with costs, and petition dismissed.

In Matter of Adrian v Board of Educ. of City Sch. Dist. of City of Niagara Falls: Order affirmed, with costs.

In Matter of Luchey v Board of Educ. of City Sch. Dist. of the City of Niagara Falls: Order reversed, with costs, and matter remitted to Supreme Court, Niagara County, for further proceedings in accordance with the opinion herein.

      . According to the District’s attorney, the Board considered the residency of 27 employees, and final determinations were made with respect to 20 of them. Of these 20, seven were sent letters indicating that they complied with the residency policy; the employment of six employees (including Beck-Nichols) was terminated; court action blocked action in one case; four employees resigned; one employee retired; and another employee agreed in writing to comply with the residency policy within a reasonable period of time.

      . The rental agreement states that the lease term ran for a six-month period from April 1, 2009 through September 30, 2009, although Adrian claimed at the May 12th meeting that she then resided at 73rd Street in Niagara Falls. The lease, which was signed by the parties on September 1, 2009, also included a rider indicating that its term began as of September 1, 2009 until “move out date.”


text:
    [987 NE2d 257, 964 NYS2d 480]
    M&T Real Estate Trust, Successor by Merger of M&T Real Estate, Inc., Appellant, v James J. Doyle, II, et al., Respondents.
    Argued February 14, 2013;
    decided March 26, 2013

      POINTS OF COUNSEL

      Jaeckle, Fleischmann & Mugel, LLP, Buffalo (Howard S. Rosenhoch and Vincent O. Hanley of counsel), for appellant.
    I. Under long-established principles of New York law, “delivery” of a deed is not complete without acceptance. (Ten Eyck v Whitbeck, 156 NY 341; Brackett v Barney, 28 NY 333; First Fed. Sav. & Loan Assn. of Syracuse v Ivy Ridge, 76 Misc 2d 208, 50 AD2d 1057; Powderly v Aetna Cas. Co., 72 Misc 2d 251.) II. None of the cases relied upon by defendants-respondents regarding the interpretation and application of RPAPL 1371 (2) supports their position. (National Bank of Sussex County v Betar, 207 AD2d 610; Lennar Northeast Partners Ltd. Partnership v Gifaldi, 258 AD2d 240; Arbor Natl. Commercial Mtge. v Carmans Plaza, 305 AD2d 622; River Bank Am. v Pan Am. Mall, 221 AD2d 327.) III. Conveyances by referee’s deed are subject to the same acceptance requirement that applies to conveyances generally. (Crossland Sav. v Patton, 182 AD2d 496, 80 NY2d 755; Savings Bank of Utica v 561-575 Delaware Ave., 201 AD2d 946.)

      Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (John K. Rottaris and Katherine M. Liebner of counsel), for respondents.
    The Fourth Department correctly found that the referee’s deed was “delivered” within the meaning of RPAPL 1371 under the narrow circumstances of this case. (Lennar Northeast Partners Ltd. Partnership v Gifaldi, 258 AD2d 240; Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; State

      of New York v Patricia II., 6 NY3d 160; Kimmel v State of New York, 76 AD3d 188; Tompkins v Hunter, 149 NY 117; National Bank of Sussex County v Betar, 207 AD2d 610; Cicero v Aspen Hills II, LLC, 85 AD3d 1411; River Bank Am. v Pan Am. Mall, 221 AD2d 327; Ten Eyck v Whitbeck, 156 NY 341; Brackett v Barney, 28 NY 333.)
   OPINION OF THE COURT

Read, J.

On March 24, 2009, M&T Real Estate Trust (M&T) brought this action pursuant to article 13 of the Real Property Actions and Proceedings Law to foreclose certain commercial mortgages executed by defendant James J. Doyle, II with respect to property in Tonawanda, New York. These mortgages, given to secure Doyle’s indebtedness on two promissory notes, were guaranteed by his company, defendant Jim Doyle Ford, Inc. On August 6, 2009, County Court granted judgment of foreclosure and sale to M&T for the sum of $1,101,942.97; directed the mortgaged premises to be sold at public auction by the referee appointed for this purpose; and adjudged defendants liable for any shortfall, in accordance with RPAPL 1371. Subdivision (2) of this provision specifies that

“ [s] imultaneously with the making of a motion for an order confirming the sale, provided such motion is made within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser, the party to whom such residue [of the debt remaining unsatisfied] shall be owing may make a motion in the action for leave to enter a deficiency judgment” (RPAPL 1371 [2] [emphasis added]).

At the auction held on September 24, 2009, the referee sold M&T the property for $890,000, the highest sum bid. Soon afterwards, M&T’s attorney advised the referee that his client planned to assign its bid to an affiliate, MAT Properties, Inc. (MAT), prior to the closing, which would be delayed for several months while MAT conducted a sealed bid sale of the foreclosure bid. On May 10, 2010, though, the attorney sent the referee a proposed deed naming MAT as grantee, report of sale and other closing documents, and requested that the referee sign and return these papers. The referee executed the documents on May 11, 2010, and placed them in the mail the next day.

On May 13, 2010, M&T’s attorney—who had not yet received the papers—telephoned the referee to alert him that MAT was not then prepared to accept the deed because a potential purchaser had just stepped forward to express an interest in acquiring the bid. When he learned that the referee had already signed and mailed the deed, the attorney told the referee that he “did not intend to accept the referee’s deed and other papers when they arrived,” and would “return [the] cover letter and the enclosures . . . when he received them.” Accordingly, by letter dated May 17, 2010, M&T’s attorney sent these documents back to the referee, to be held “until further notice” as agreed in their “recent exchange of telephone messages.” The attorney reiterated the reason why MAT was not yet ready to accept the deed, and promised to “be in touch with [the referee] shortly to let [him] know whether the bank [had] assigned its bid.” The referee accepted and kept possession of the returned papers without objection.

By letter dated July 26, 2010, M&T’s attorney asked the referee to send along the deed and other closing documents as “M&T [had] instructed [him] to record the Referee’s Deed conveying title to [MAT].” The referee hand delivered these papers the next day; however, on August 6, 2010, the attorney emailed the referee a request to execute the deed so that it would be “dated concurrently with its delivery.” On August 9, 2010, the referee did so and M&T’s attorney accepted the deed on behalf of MAT that same day. The deed was recorded in the Erie County Clerk’s Office on August 17, 2010.

On September 3, 2010, M&T filed a motion seeking to confirm the referee’s report of sale; determine the fair and reasonable market value of the mortgaged premises as of September 24, 2009, the date of the mortgage foreclosure sale; and enter a deficiency judgment. Defendants opposed the motion, arguing that M&T’s request for a deficiency judgment was untimely under RPAPL 1371 (2) because made more than 90 days after consummation of the sale, which they claimed happened in May 2010.

By order entered June 29, 2011, County Court granted M&T’s motion, and directed its attorneys to submit a proposed order pursuant to RPAPL 1371. The judge determined that the motion was timely because “brought within ninety (90) days of the consummation of the sale of the Premises by the Referee pursuant to the Referee’s Deed dated August 9, 2010 and recorded . . . on August 17, 2010.” By order and judgment entered July 20, 2011, County Court directed entry of a deficiency judgment against defendants in the amount of $426,657.11. Defendants appealed both orders, challenging the timeliness of M&T’s motion.

On March 23, 2012, the Appellate Division dismissed the appeal from the order entered June 29, 2011 (see CPLR 5501 [a] [1]); and reversed so much of the order and judgment entered July 20, 2011 as granted M&T the deficiency judgment against defendants (93 AD3d 1331 [4th Dept 2012]). The Court agreed with defendants that M&T’s motion was untimely because

“the foreclosure sale was consummated and the 90-day period commenced in May 2010 upon the delivery of the Referee’s deed. Such delivery occurred within the meaning of [RPAPL 1371 (2)] at that time inasmuch as the Referee, acting as grantor on behalf of the court, executed and parted with control of the deed prepared by plaintiff’s counsel with the intention to pass title [and] notwithstanding the refusal of plaintiffs counsel to accept and retain physical possession of the deed at that time” (id. at 1332 [citations omitted]).

We granted M&T leave to appeal (19 NY3d 808 [2012]), and now reverse.

Real Property Law § 244 states that a “grant takes effect, so as to vest the estate or interest intended to be conveyed, only from its delivery; and all the rules of law, now in force, in respect to the delivery of deeds, apply to grants hereafter executed.” The common law in 1909, when section 244 was enacted, contemplated that delivery encompassed both presentment and acceptance (see e.g. Brackett v Barney, 28 NY 333, 340-341 [1863] [“The delivery of a deed without acceptance is nugatory . . . An intention to deliver on the one hand and to accept on the other, is necessary to give effect to the instrument”]; Ten Eyck v Whitbeck, 156 NY 341, 352 [1898] [“The delivery of a deed is essential to the transfer of title, and there can be no delivery without an acceptance by the grantee”]; see also 1 Rasch, New York Law and Practice of Real Property § 24:162 [2d ed] [“Acceptance of a deed is as essential to the change of title as is delivery itself5]). And there is no statutory basis for treating a referee’s deed in foreclosure differently from other deeds when pinpointing the moment title transfers; hence, “consummation of the sale by the delivery of the proper deed” within the meaning of section 1371 (2) takes place when the intended grantee accepts the proffered instrument (see Crossland Sav. v Patton, 182 AD2d 496, 496 [1st Dept 1992], lv denied 80 NY2d 755 [1992] [title to the property vested and so the sale was consummated within the meaning of RPAPL 1371 (2) on the day that the plaintiffs counsel “accepted and retained without objection” the deed delivered to him by the defendant]).

As a general rule, a deed is presumed to have been “delivered and accepted at its date”; however, this presumption “must yield to opposing evidence” (see Ten Eyck, 156 NY at 352). Here, M&T’s attorney twice declined to accept or retain physical possession of the referee’s deed dated May 11, 2010. As a result, the referee took back the deed and other closing documents and ultimately executed a deed on August 9, 2010, when M&T’s attorney accepted it on behalf of MAT. This constitutes “opposing evidence” sufficient to rebut any presumption of delivery in May 2010 (see Manhattan Life Ins. Co. v Continental Ins. Cos., 33 NY2d 370, 372 [1974] [presumption overcome where there was no evidence that the grantor’s attorney, who later recorded the deed, received it as agent of the grantee; consequently, there was no passage of title]). M&T’s motion was therefore timely because brought within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser” (RPAPL 1371 [2])—i.e., August 9, 2010.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the order and judgment of County Court reinstated.

Chief Judge Lippman and Judges Graffeo, Smith, Pigott and Rivera concur.

Order reversed, with costs, and order and judgment of County Court, Erie County, reinstated.

       This amount represents the sum of $1,113,942.31 (the debt remaining unsatisfied according to the referee’s report of sale) and $312,714.80 (the real estate taxes that were a lien on the premises as of September 24, 2009), minus $1,000,000 (the fair and reasonable market value of the property on September 24, 2009).