Nappi v. Ambro

34 A.D.2d 979, 313 N.Y.S.2d 300, 1970 N.Y. App. Div. LEXIS 4473

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1970
• Status: Published

Opinion

This is a proceeding pursuant to section 36 of the Public Officers Law instituted by certain residents of the Town of Huntington to remove from office the Town’s Supervisor and certain of its other officers for alleged “ misconduct, maladministration and malfeasance ” upon the charges contained in the petition. The respondents have cross-moved to dismiss the proceeding. The cross motions are granted and the petition is dismissed, without costs. It appears from the papers submitted that an action by 110 Manno Realty Corp. (hereinafter called “Manno”) against the Town of Huntington to enjoin the latter from holding a public hearing to change the zoning of Manno’s real property from a commercial to a residential classification is still pending and undetermined in the Supreme Court, Suffolk County, and that, in that action, by a temporary restraining order, the town was enjoined from holding such a public hearing. It is alleged that, nevertheless, the respondents, “ with full knowledge ” thereof, “wilfully disobeyed” the court’s lawful mandate, held the hearing specifically enjoined thereby and proceeded to enact a resolution “purportedly” changing the zoning of Manno’s property to a residential classification. In our opinion, the petition fails to establish, prima facie, grounds sufficient to warrant the relief sought. The facts as alleged in the petition are not of such character as to justify a present judicial determination that the respondents have been guilty of “misconduct, maladministration and malfeasance” in office within the meaning of section 36 of the Public Officers Law. Christ, P. J., Rabin, Hopkins, Martuscello and Benjamin, JJ., concur.