Gerdts v. Cuomo

Appellate Division of the Supreme Court of New York

Gerdts v. Cuomo

202 A.D.2d 943, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3084

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

DecidedMarch 31, 1994

StatusPublished

This text of 202 A.D.2d 943 (Gerdts v. Cuomo) 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.

Bluebook

Gerdts v. Cuomo, 202 A.D.2d 943, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3084 (N.Y. Ct. App. 1994).

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Opinion

—Appeal from a judgment of the Supreme Court (Prior, Jr., J.), entered December 8, 1992 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondent’s motion to dismiss the petition/complaint for failure to state a cause of action.

Executive Law § 803 provides that members of the Adiron[944]*944dack Park Agency are to be appointed by respondent "with the advice and consent of the [S]enate” for terms of four years. The statute further provides that members hold office until a successor is appointed and qualified unless the member resigns or is removed. Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to, inter alia, compel respondent to appoint new members to the Agency, contending that respondent has failed to appoint new members although the terms of the present members have expired. We agree with Supreme Court that petitioners seek a judgment in the nature of mandamus. Assuming that petitioners have standing, we also concur with Supreme Court, given the nature of the powers at issue, that petitioners have failed to establish that they have a clear legal right to the relief sought and have therefore failed to state a cause of action.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Prior, Jr., J.), entered December 8, 1992 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondent’s motion to dismiss the petition/complaint for failure to state a cause of action.

Executive Law § 803 provides that members of the Adiron[944]*944dack Park Agency are to be appointed by respondent "with the advice and consent of the [S]enate” for terms of four years. The statute further provides that members hold office until a successor is appointed and qualified unless the member resigns or is removed. Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to, inter alia, compel respondent to appoint new members to the Agency, contending that respondent has failed to appoint new members although the terms of the present members have expired. We agree with Supreme Court that petitioners seek a judgment in the nature of mandamus. Assuming that petitioners have standing, we also concur with Supreme Court, given the nature of the powers at issue, that petitioners have failed to establish that they have a clear legal right to the relief sought and have therefore failed to state a cause of action.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

202 A.D.2d 943, 609 N.Y.S.2d 458, 1994 N.Y. App. Div. LEXIS 3084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerdts-v-cuomo-nyappdiv-1994.

Opinion

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