Does keeping a boat at a seasonal Fire Island marina on a 17-day transient permit count as a 'residence' that lets a mainland volunteer firefighter offer ongoing help to the Davis Park Fire Department?

Plain-English summary

Davis Park is a small fire district on Fire Island. Non-member volunteer firefighters who lived on the mainland offered ongoing help to the district and kept their boats at a seasonal marina near the fire department. They used transient marina permits allowing berthing for no more than 17 consecutive days; another permit could follow after the boat was removed for 48 hours.

General Municipal Law § 209-i(1-a) lets a non-member volunteer firefighter give ongoing assistance to another company if the firefighter is regularly in the area because of "residence or usual occupation." The fire district's attorney asked whether keeping a boat at the marina under a transient permit qualifies as a "residence" at the marina, so the mainland boaters could be regulars at Davis Park under § 209-i(1-a). The AG said no.

Why "residence" matters. § 209-i has two parallel paths:

• Subdivision (1): a non-member volunteer can offer help when they happen to be near the scene of a fire or emergency. The statute ties this offer to the firefighter’s knowledge of a fire or other emergency at or near the place where the firefighter is.
• Subdivision (1-a): a non-member volunteer can offer help on an ongoing basis if "because of his residence or usual occupation" he is regularly in the area. The statute permits an offer of ongoing assistance on that basis.

Davis Park had adopted a resolution allowing (1-a) assistance. The question was whether the mainland boaters could plug into (1-a) via the marina.

The two readings of "residence" in NY statutes. § 209-i does not define the term. NY case law uses two readings depending on context:

• Residence as domicile (intent to make a place a permanent home): Matter of Newcomb, 192 N.Y. 238 (1908); Matter of Hosley v. Curry, 85 N.Y.2d 447 (1995) (Public Officers Law § 3(1)); Longwood Centr. Sch. Dist. v. Springs Union Free Sch. Dist., 1 N.Y.3d 385 (2004) (Education Law § 3202).
• Residence as the place where one actually lives (an abode): In re Estate of Shindell, 60 A.D.2d 393 (1st Dep't 1977), aff'd 55 N.Y.2d 655 (1981); Antone v. General Motors Corp., 64 N.Y.2d 20 (C.P.L.R. § 202).

The AG did not have to choose. Either way, "residence" means a place where the person lives for at least some time. The American Heritage Dictionary entry ("The place in which one lives; a dwelling") captures the floor. On the stated facts, the firefighters lived on the mainland and kept boats in transient marina slips. The AG concluded that their presence at the marina did not establish residence in the fire department’s area.

Resolution language. The fire district's own resolution defined "residence" to mean "a parcel of residential real property." The opinion notes that definition in a footnote but bases its conclusion on the statutory term and the facts described.

Scope of the answer. The AG addressed ongoing assistance under § 209-i(1-a) based on residence at the marina. The opinion also describes subdivision (1), concerning an offer to help at a nearby emergency, and subdivision (1-a)’s separate usual-occupation ground, but does not apply either one to these firefighters.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What if a boater kept the boat at a non-transient (seasonal) slip and lived on the boat all summer? The AG did not reach a seasonal liveaboard arrangement. Its conclusion concerns firefighters who lived on the mainland and kept boats at the marina under transient permits.

Could the fire district just admit these volunteers as full members? The opinion does not address admitting them as members. It answers whether these non-member firefighters could offer ongoing assistance under § 209-i(1-a) by claiming residence at the marina.

Does the same residence analysis apply to other parts of § 209-i, like the per-incident assistance under (1)? Subdivision (1) concerns a firefighter who knows of a fire or other emergency at or near the place where the firefighter is at that time. The AG did not apply subdivision (1) to these firefighters.

What if the boater rented the slip for the entire season, not on transient permits? The AG did not analyze a non-transient seasonal rental. The described arrangement involved transient permits and firefighters who lived on the mainland.

Why does the AG care which reading of "residence" applies? The AG flagged the issue and then concluded that both readings produced the same result on these facts, so a choice was unnecessary. The statute also refers to firefighters regularly in the area because of their usual occupation, but the opinion did not apply that ground to these firefighters.

Background and statutory framework

General Municipal Law Article 10. "Firemen and Policemen." § 209-i governs non-member volunteer firefighter assistance. § 209-i(1) is the per-incident path. § 209-i(1-a) is the ongoing path. § 209-i(2) imposes liability on the municipal corporation or fire district that would otherwise be liable for member negligence, extending it to accepted non-member volunteers.

Residence vs. domicile in NY law. A long-running and context-specific question. Newcomb (1908) is the foundational domicile case. Hosley v. Curry (1995) confirms that "residence" in Public Officers Law § 3(1) is synonymous with domicile. Longwood (2004) extends similar treatment in Education Law § 3202. C.P.L.R. § 202 treats residence as something less than domicile.

The Davis Park fact pattern. A small Fire Island fire district; a seasonal marina with transient permits; firefighters living on the mainland; a fire district resolution defining "residence" as a parcel of residential real property.

Citations

• General Municipal Law Article 10 (firemen and policemen); § 209-i (non-member volunteer firefighter assistance); § 209-i(1) (per-incident assistance); § 209-i(1-a) (ongoing assistance based on residence or usual occupation); § 209-i(2) (municipal corporation liability for non-member volunteers).
• Public Officers Law § 3(1) ("residence" synonymous with domicile).
• Education Law § 3202 ("residence" akin to domicile for school district purposes).
• C.P.L.R. § 202 ("residence" distinct from domicile for borrowing-statute purposes).
• Matter of Newcomb, 192 N.Y. 238, 250 (1908) (domicile = fixed and permanent home).
• Matter of Hosley v. Curry, 85 N.Y.2d 447, 451 (1995).
• Longwood Centr. Sch. Dist. v. Springs Union Free Sch. Dist., 1 N.Y.3d 385 (2004).
• In re Estate of Shindell, 60 A.D.2d 393, 398 (1st Dep't 1977), aff'd 55 N.Y.2d 655 (1981).
• Antone v. General Motors Corp., 64 N.Y.2d 20, 26.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-7_pw.pdf

Original opinion text

General Municipal Law Article 10; §§ 209-i, 209-i(1), 209-i(1- a), 209-i(2); Public Officers Law § 3(1); Education Law § 3202; C.P.L.R. § 202

A volunteer firefighter who lives on the main land but berths his boat at a marina near a fire department pursuant to a transient permit does not have a “residence” in the area of the fire department for purposes of General Municipal Law § 209-i(1-a).

June 12, 2008

Allen M. Smith, Esq.
Informal Opinion
Attorney
No. 2008-7
Davis Park Fire District
737 Roanoke Avenue
Riverhead, New York 11901

Dear Mr. Smith:

You have requested an opinion regarding whether boaters who keep their boats at a marina for the portion of the year the marina is open are eligible to volunteer their services to the Davis Park Fire Department pursuant to General Municipal Law § 209-i(1-a).

Article 10 of the General Municipal Law pertains to “[f]iremen and [p]olicemen.” General Municipal Law § 209-i permits volunteer firefighters to offer to assist a volunteer fire company or department of which he or she is not a member. Subdivision one authorizes such an offer when the non-member firefighter has knowledge of a fire or other emergency at or near the place where he or she is for the time being. Id. § 209-i(1). Subdivision one- a authorizes a volunteer firefighter “who, because of his residence or usual occupation, is regularly in the area served by a volunteer fire company or department of which he is not a member” to volunteer his services “on an on-going basis.” Id. § 209-i(1-a). The municipal corporation or fire district that would be liable for the negligence of any volunteer members of the fire company or department is similarly liable for the negligence of such volunteer firefighters who have offered to assist and whose offer has been accepted while the non-members assist. Id. § 209-i(2).

You have explained that the Davis Park Fire District is a small fire district located on Fire Island. The fire district has authorized the acceptance of offers of assistance made by volunteer firefighters who are not members of the fire department, pursuant to General Municipal Law § 209-i.

You have further explained that some non-member volunteer firefighters who live on the mainland, near but not on Fire Island, have offered to assist the fire department on an ongoing basis. 2

They keep their boats at a seasonal marina located near the fire department for lengths of time during the months the marina is open. The permits pursuant to which the boats are berthed at the marina are “transient permits,” which limit berthing to seventeen consecutive days. Subsequent transient permits may be issued after the boat is removed from the marina for 48 hours.

You have asked whether keeping a boat at the marina under these circumstances is sufficient to qualify non-member volunteer firefighters to offer their services to the fire department on an ongoing basis pursuant to General Municipal Law § 209-i(1-a). In particular, you have asked whether these non-member volunteer firefighters are eligible to claim a “residence” at the marina and thereby qualify to offer ongoing assistance under subdivision 1-a. As explained more fully below, we are of the opinion that, under the facts as you have described them, they cannot claim a residence at the marina and therefore that they cannot offer their assistance to the fire department on an ongoing basis pursuant to General Municipal Law § 209-i(1-a) on this ground.

Analysis

Section 209-i does not define “residence.”1 The meaning of “residence” when used in statutes may vary depending on the context. In some statutes, it is used to mean a “domicile,” that is, a “living in [a particular locality] with intent to make it a fixed and permanent home,” Matter of Newcomb, 192 N.Y. 238, 250 (1908). See, e.g., Public Officers Law § 3(1); Matter of Hosley v. Curry, 85 N.Y.2d 447, 451 (1995) (“resident” in Public Officers Law § 3(1) is properly understood to be synonymous with “domicile”); Education Law § 3202; Longwood Centr. Sch. Dist. v. Springs Union Free Sch. Dist., 1 N.Y.3d 385 (2004) (“residence” in Education Law § 3202 is akin to domicile). In other statutes, it refers to the “abode or place where one actually lives,” In re Estate of Shindell, 60 A.D.2d 393, 398 (1st Dep’t 1977), aff’d 55 N.Y.2d 655 (1981). See, e.g., C.P.L.R. 202; Antone v. General Motors Corp., 64 N.Y.2d 20, 26 (“residence” under C.P.L.R. 202 is distinct from “domicile”).

In either sense, however, “residence” refers to a place in which a person lives for at least some time. This accords with the dictionary definition of the word. See American Heritage Dictionary of the English Language 1483 (4th ed. 2000) (“The place

1
The resolution adopted by the fire district does, however, define “residence,” to mean “a parcel of residential real property.” Resolution of Oct. 13, 2007. 3

in which one lives; a dwelling.”). As you have described the facts, the non-member volunteer firefighters “reside on the mainland, but keep their boats in transient slips” at the seasonal marina. We are of the opinion that the presence of the non-member volunteer firefighters at the marina as you have described it is insufficient to establish their “residence” in the area of the fire department for purposes of General Municipal Law § 209-i(1-a).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions