Brindisi v. Donalty

Appellate Division of the Supreme Court of New York

Brindisi v. Donalty

171 A.D.2d 1039, 579 N.Y.S.2d 614

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 8, 1991

StatusPublished

Cited by1 cases

This text of 171 A.D.2d 1039 (Brindisi v. Donalty) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brindisi v. Donalty, 171 A.D.2d 1039, 579 N.Y.S.2d 614 (N.Y. Ct. App. 1991).

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Opinion

Judgment affirmed without costs. Memorandum: Under the circumstances of this case, Supreme Court correctly dismissed the proceeding seeking a writ of prohibition (see, Matter of McGinley v Hynes, 51 NY2d 116, cert denied 450 US 918; Matter of Forte v Supreme Ct., 48 NY2d 179, 183-185). We note, however, that the reappointment of Michael Daley as an Assistant District Attorney for Oneida County in 1990 violated Public Officers Law §3 because Daley changed his residence to Herkimer County in October, 1989 (see, 1965 Atty Gen [Inf Opns] 84). We conclude, however, that any challenge to the right of Michael Daley to hold the office of Assistant District Attorney of Oneida County may be made in an appropriate proceeding (see, Matter of City of Mount Vernon v State of N. Y. Bd. of Equalization & Assessment, 92 AD2d 985, 988, Iv denied 59 NY2d 606).

All concur. Lawton, J., concurs in result only. (Appeal from Judgment of Supreme Court, Oneida County, Parker, J. — Article 78.) Present — Doerr, J. P., Green, Pine, Lawton and Davis, JJ.

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Judgment affirmed without costs. Memorandum: Under the circumstances of this case, Supreme Court correctly dismissed the proceeding seeking a writ of prohibition (see, Matter of McGinley v Hynes, 51 NY2d 116, cert denied 450 US 918; Matter of Forte v Supreme Ct., 48 NY2d 179, 183-185). We note, however, that the reappointment of Michael Daley as an Assistant District Attorney for Oneida County in 1990 violated Public Officers Law §3 because Daley changed his residence to Herkimer County in October, 1989 (see, 1965 Atty Gen [Inf Opns] 84). We conclude, however, that any challenge to the right of Michael Daley to hold the office of Assistant District Attorney of Oneida County may be made in an appropriate proceeding (see, Matter of City of Mount Vernon v State of N. Y. Bd. of Equalization & Assessment, 92 AD2d 985, 988, Iv denied 59 NY2d 606).

All concur. Lawton, J., concurs in result only. (Appeal from Judgment of Supreme Court, Oneida County, Parker, J. — Article 78.) Present — Doerr, J. P., Green, Pine, Lawton and Davis, JJ.

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171 A.D.2d 1039, 579 N.Y.S.2d 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brindisi-v-donalty-nyappdiv-1991.

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