Harvey v. Rubino

—Determination unanimously annulled on the law without costs and petition granted. Memorandum: In this CPLR article 78 proceeding, petitioner challenges the determination of respondent Buffalo Municipal Civil Service Commission (Commission) terminating her employment as an Associate Account Clerk with respondent City of Buffalo (City) because she failed to maintain her permanent residence within the City (see, Buffalo City Code § 35-6 [B]). The record establishes that petitioner has been a City employee since 1976 and that she was a City resident at the time of her employment. In the absence of fraud, the Commission was not authorized to direct petitioner’s termination for nonresidence more than three years after petitioner’s employment (see, DeFranks v City of Buffalo, 248 AD2d 992). Consequently, we annul the Commission’s determination and grant the petition. We have reviewed petitioner’s remaining contentions and conclude that they are without merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Erie County, Cos-grove, J.) Present — Green, J. P., Lawton, Wisner, Callahan and Boehm, JJ.