Jones v. Filkins

238 A.D.2d 954, 661 N.Y.S.2d 167, 1997 N.Y. App. Div. LEXIS 4821

Opinion

—Petition unanimously dismissed without costs. Memorandum: Petitioner commenced this original proceeding seeking the removal of respondent from the office of Highway Superintendent of the Town of Mentz pursuant to Public Officers Law § 36. The petition alleges that, on January 13, 1996, respondent used equipment belonging to the Town of Mentz to remove snow in the Village of Port Byron.

Upon our review of the record, we conclude that the misconduct alleged, even if accepted as true, does not rise to the level necessary to justify his removal from office under Public Officers Law § 36. Removal of an official from office pursuant to that section generally will not be granted absent " 'allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust’ ” (Feldberg v Freidland, 221 AD2d 766, 767, quoting Matter of Deats v Carpenter, 61 AD2d 320, 322). Allegations of " 'minor neglect of duties, administrative oversights, or violations of law’ * * * do not, in general, warrant removal” (Matter of Morin v Gallagher, 221 AD2d 765, 766). We conclude that the petition must be dismissed. (Original Proceeding Pursuant to Public Officers Law § 36.) Present—Denman, P. J., Pine, Callahan, Balio and Fallon, JJ.