Depamphilis v. Kelly

Appellate Division of the Supreme Court of New York

Depamphilis v. Kelly

107 A.D.3d 611, 967 N.Y.S.2d 645

Appellate Division of the Supreme Court of the State of New York·Decided June 27, 2013·Published·Cited by 2 cases

Opinion

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 29, 2012, denying the petition seeking, among other things, to annul respondents’ summary termination of petitioner’s employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner’s conviction, upon his guilty plea, of offering a false instrument for filing in the second degree (Penal Law § 175.30) constitutes a violation of the oath of office, since the offense involves willful deceit. Accordingly, his office was vacated automatically upon conviction, pursuant to Public Officers Law § 30 (1) (e) (see Matter of Feola v Carroll, 10 NY3d 569, 572-573 [2008]; Matter of Bowman v Kerik, 271 AD2d 225 [1st Dept 2000]). We do not reach respondents’ argument that petitioner violated New York City Charter § 1116 (a) and (b), as it was improperly raised for the first time in their answer in the article 78 proceeding (see generally Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368 [2011]).

We have considered all other claims and find them unavailing. Concur — Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels and Feinman, JJ.

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Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered May 29, 2012, denying the petition seeking, among other things, to annul respondents’ summary termination of petitioner’s employment, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner’s conviction, upon his guilty plea, of offering a false instrument for filing in the second degree (Penal Law § 175.30) constitutes a violation of the oath of office, since the offense involves willful deceit. Accordingly, his office was vacated automatically upon conviction, pursuant to Public Officers Law § 30 (1) (e) (see Matter of Feola v Carroll, 10 NY3d 569, 572-573 [2008]; Matter of Bowman v Kerik, 271 AD2d 225 [1st Dept 2000]). We do not reach respondents’ argument that petitioner violated New York City Charter § 1116 (a) and (b), as it was improperly raised for the first time in their answer in the article 78 proceeding (see generally Matter of National Fuel Gas Distrib. Corp. v Public Serv. Commn. of the State of N.Y., 16 NY3d 360, 368 [2011]).

We have considered all other claims and find them unavailing. Concur — Gonzalez, P.J., Renwick, DeGrasse, Manzanet-Daniels and Feinman, JJ.

Depamphilis v. Kelly, 107 A.D.3d 611, 967 N.Y.S.2d 645 (N.Y. Ct. App. 2013).

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Opinion

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