Miller v. Filion

Appellate Division of the Supreme Court of New York

Miller v. Filion

304 A.D.2d 1016, 756 N.Y.S.2d 922, 2003 N.Y. App. Div. LEXIS 4154

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

DecidedApril 17, 2003

StatusPublished

Cited by11 cases

This text of 304 A.D.2d 1016 (Miller v. Filion) 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

Miller v. Filion, 304 A.D.2d 1016, 756 N.Y.S.2d 922, 2003 N.Y. App. Div. LEXIS 4154 (N.Y. Ct. App. 2003).

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Opinion

Rose, J.

Proceeding initiated in this Court pursuant to Public Officers Law § 36 to remove respondents from various offices in the Town of Clinton, Clinton County.

Petitioner, the former Town Clerk for the Town of Clinton, Clinton County, commenced the current proceeding seeking to remove respondents from the offices of Town Supervisor, Town Clerk and Members of the Town Council. The petition sets forth 20 separate grounds of misconduct which, petitioner [1017]*1017contends, warrant removal of respondents as a matter of law. Respondents refute all 20 allegations and move to dismiss the petition for failure to state a cause of action. We grant respondents’ motion.

It is well settled that Public Officers Law § 36 “was enacted to ‘enable a town or village to rid itself of an unfaithful or dishonest public official’” (Matter of Deats v Carpenter, 61 AD2d 320, 322 [1978], quoting Matter of Newman v Strobel, 236 App Div 371, 373 [1932]; see Matter of Salvador v Naylor, 222 AD2d 931, 931 [1995]). In this respect, to state a cause of action pursuant to this section, a petition must include “ ‘allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust’ ” (Matter of Morin v Gallagher, 221 AD2d 765, 766 [1995], quoting Matter of Deats v Carpenter, supra at 322; see Matter of Salvador v Naylor, supra at 931).

Here, petitioner’s 20 allegations deal primarily with respondents’ alleged failure to timely file various documents, follow certain technical procedures and timely comply with requests under the Freedom of Information Law. Such alleged transgressions, even accepting them as true, do not amount to the sort of unscrupulous conduct or gross dereliction of duty contemplated by Public Officers Law § 36. Thus, we conclude that the petition fails to state a cause of action and must be dismissed.

Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Adjudged that the motion to dismiss is granted, with costs, and petition dismissed.

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Rose, J.

Proceeding initiated in this Court pursuant to Public Officers Law § 36 to remove respondents from various offices in the Town of Clinton, Clinton County.

Petitioner, the former Town Clerk for the Town of Clinton, Clinton County, commenced the current proceeding seeking to remove respondents from the offices of Town Supervisor, Town Clerk and Members of the Town Council. The petition sets forth 20 separate grounds of misconduct which, petitioner [1017]*1017contends, warrant removal of respondents as a matter of law. Respondents refute all 20 allegations and move to dismiss the petition for failure to state a cause of action. We grant respondents’ motion.

It is well settled that Public Officers Law § 36 “was enacted to ‘enable a town or village to rid itself of an unfaithful or dishonest public official’” (Matter of Deats v Carpenter, 61 AD2d 320, 322 [1978], quoting Matter of Newman v Strobel, 236 App Div 371, 373 [1932]; see Matter of Salvador v Naylor, 222 AD2d 931, 931 [1995]). In this respect, to state a cause of action pursuant to this section, a petition must include “ ‘allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust’ ” (Matter of Morin v Gallagher, 221 AD2d 765, 766 [1995], quoting Matter of Deats v Carpenter, supra at 322; see Matter of Salvador v Naylor, supra at 931).

Here, petitioner’s 20 allegations deal primarily with respondents’ alleged failure to timely file various documents, follow certain technical procedures and timely comply with requests under the Freedom of Information Law. Such alleged transgressions, even accepting them as true, do not amount to the sort of unscrupulous conduct or gross dereliction of duty contemplated by Public Officers Law § 36. Thus, we conclude that the petition fails to state a cause of action and must be dismissed.

Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Adjudged that the motion to dismiss is granted, with costs, and petition dismissed.

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304 A.D.2d 1016, 756 N.Y.S.2d 922, 2003 N.Y. App. Div. LEXIS 4154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-filion-nyappdiv-2003.

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