Dekdebrun v. Hardt

68 A.D.2d 241, 417 N.Y.S.2d 331, 1979 N.Y. App. Div. LEXIS 10544

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1979
• Status: Published

Opinions

OPINION OF THE COURT

Moule, J.

Defendants contend on this appeal that Special Term erred in denying their motion to dismiss plaintiff’s petition. Although this action was commenced as an article 78 proceeding, it was treated by Special Term and the parties as one for declaratory judgment.

On January 2, 1979 Governor Hugh L. Carey appointed Allen E. Dekdebrun as chairman of the Niagara Frontier Transportation Authority (NFTA). The New York State Senate rejected this appointment on the ground that there was no vacancy in the NFTA chairmanship because the position was occupied by defendant Chester R Hardt. Dekdebrun commenced this action seeking a judgment declaring that prior to his appointment a vancancy had existed in the office of NFTA chairman, that he was the duly appointed chairman, and that the NFTA should surrender to him all books, papers, money and property belonging to the office of chairman.

Section 1299-c of the Public Authorities Law establishes the positions and terms of office of a chairman and 10 members of the NFTA. Under the statute each position has a term of office of eight years and the expiration dates of the terms are staggered so that they expire in different years. The term provided for the chairman first expired on June 30, 1973 and expires again on June 30, 1981 and every eight years thereafter. In May, 1974 two positions on the NFTA were vacant. One was the remaining term, expiring June 30, 1981, of Chairman William Miller who had resigned. The other was the remaining term, expiring June 30, 1974, of member Aaron Griffin who had also resigned.

On May 29, 1974 Governor Wilson nominated and the Senate confirmed as a "Member and Chairman of the Niagara Frontier Transportation Authority Chester R. Hardt of Williamsville, for a term to expire June 30, 1974, and for an additional term to expire June 30, 1982.” On July 17, 1974 Governor Wilson nominated Paul A. Rumbold as a member of the NFTA for a term to expire on June 30, 1981, but the appointment was never confirmed by the Senate. Plaintiff alleged that on these facts no person had been validly appointed chairman of the NFTA following William Miller’s resignation from the post in 1974.

Defendants moved to dismiss plaintiff’s action on the grounds that it failed to state a cause of action (CPLR 3211, subd [a], par 7) and that there were defenses founded upon documentary evidence (CPLR 3211, subd [a], par 1). The documentary evidence showed that since defendant Hardt’s appointment in 1974, no one had questioned his right to the chairmanship, that the Governor’s staff had, in all of its communications with him, recognized him as chairman, and that plaintiff’s appointment by Governor Carey was rejected by the Senate because the Senate considered Hardt to be NFTA chairman. Defendants also asserted that, inasmuch as the Senate did not confirm Dekdebrun’s appointment, he was without standing to bring this action.

Special Term denied the motion to dismiss holding that regardless of the current status of Dekdebrun’s appointment, he had standing because he had sufficient interest in the outcome of the litigation. In addition, Special Term held that the circumstances surrounding Hardt’s appointment to the chairmanship presented questions which could be resolved only after a plenary hearing.

Only two issues aré raised on this appeal: first, whether plaintiff has standing to bring this declaratory judgment action notwithstanding that he has not recorded with the office of the Secretary of State a commission from the Governor made with the consent of the Senate in accordance with section 8 of the Public Officers Law; and, second, whether plaintiff has stated a cause of action.

Preliminarily, we must address a procedural question, not raised by the parties, concerning the propriety of this action as a means to try title to the chairmanship of the NFTA. As the dissenters point out, section 63-b of the Executive Law permits the Attorney-General to bring an action in the nature of quo warranto to raise the issues which are presented in this action. Whether quo warranto is a more appropriate remedy for trying title to the chairmanship of the NFTA is an issue that was not raised at Special Term, and we believe that it is not properly before us. More importantly, 14 months have elapsed since the controversy arose over the appointment of two people to the chairmanship of the NFTA, and there is nothing in the record to show that the Attorney-General has taken or intends to take an active role in the resolution of this dispute. Although the dissenters would hold that we should dismiss this action because the parties have brought it rather than the Attorney-General, we believe that the public interest requires that we address the issues now rather than await a quo warranto proceeding brought by the Attorney-General, which he may at some future time choose to bring (see Matter of Anderson v Krupsak, 51 AD2d 229, revd on other grounds 40 NY2d 397). We have two persons, plaintiff, appointed by the present Governor and defendant, appointed by former Governor Wilson, each claiming to be chairman of the NFTA. The NFTA is embarking upon a rapid transit system for the City of Buffalo and it is in the public interest that the questions before us be resolved as soon as possible. The case would have been tried before our decision on this appeal except that this court granted a stay of the trial pending a determination of this appeal. Defendant at no time has sought a delay of the trial or questioned the jurisdiction of the court on the basis that a quo warranto proceeding should have been brought by the Attorney-General.

The first question that we must consider is whether plaintiff has standing to bring this declaratory judgment action notwithstanding that plaintiff has not recorded with the office of the Secretary of State a commission from the Governor made with the consent of the Senate. In Phelan v City of Buffalo (54 AD2d 262, 264), we held that standing turns upon "[w]hether an individual * * * has a matured legally protectible interest in the outcome of the case such as to assure concrete adverseness in the presentation of issues” (citing Baker v Carr, 369 US 186). In Phelan, a potential candidate for Mayor of the City of Buffalo was given standing to challenge a candidate’s residency ordinance before he was a candidate and before the date for collecting signatures to become a candidate. Here, the Governor has three times attempted to appoint plaintiff to the chairmanship of the NFTA and each time the New York State Senate has refused to confirm his nomination on the ground that there was no vacancy in the chairmanship. On these facts, we believe that Special Term properly held that plaintiff has standing to bring this action.

The second question is whether plaintiff has stated a cause of action. Plaintiff has alleged that Hardt’s appointment to the chairmanship of the NFTA under subdivision 1 of section 1299-c of the Public Authorities Law is invalid because of three reasons which indicate Hardt was appointed as a member, rather than as the chairman. First, he was nominated and confirmed as both "Member and Chairman”; second, the term expiring June 30, 1974 and further term expiring June 30, 1982 to which he was appointed was member Griffin’s term rather than Chairman Miller’s term and, third, the appointment occurred at a time when the Governor was authorized to appoint both the chairman and a member to the NFTA.

It has been held that an error in specifying the term of office of an appointment does not invalidate the appointment (see Matter of Sullivan v Taylor, 279 NY 364; People v Dooley, 171 NY 74; Matter of Collins v City of Schenectady, 256 App Div 389; but, see, People ex rel. Bridgeman v Hall, 104 NY 170, 176-177).

This principle does not apply here where the question is not the effect of an incorrectly specified term, of office but, rather, to which office the appointment was made. Given the benefit of every favorable inference (see Rovello v Orofino Realty Co., 40 NY2d 633, 634), these facts are sufficient to state a cause of action for a declaration that the chairmanship of the NFTA is vacant. The case should be remitted for a hearing to enable the court to determine to which term Governor Wilson appointed Hardt, and the date upon which Hardt’s term will expire.

Accordingly, the order should be affirmed and the stay vacated.