Phillips v. Dally

143 A.D.2d 273, 532 N.Y.S.2d 32, 1988 N.Y. App. Div. LEXIS 8912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 29, 1988
• Status: Published

Opinion

Proceeding pursuant to Public Officers Law § 36 to remove David Michael Dally from the office of Superintendent of Highways of the Town of Monroe, Orange County.

Adjudged that the application is granted, without costs or disbursements, and David Michael Dally is removed from the office of Superintendent of Highways of the Town of Monroe, Orange County.

After filing his reelection petition for the office of Superintendent of Highways, the respondent Dally pleaded guilty to a violation of 18 USC § 1341, which involved a scheme to defraud the Town of Monroe. Dally ran unopposed and received in excess of 1,900 votes from the Town of Monroe residents. He was subsequently sentenced in Federal court to a term of imprisonment, probation, community service and restitution. The petitioners seek his removal pursuant to Public Officers Law § 36 which provides that any town official “may be removed from office by the [Appellate Division of the] supreme court for any misconduct, maladministration, malfeasance or malversation in office”. Dally contends that the voters were fully informed of his criminal conviction when they reelected him and that his removal would thwart the free and informed will of the electorate. Similar arguments have been repeatedly rejected by this and other New York courts (see, Matter of Bailey, 67 NY2d 61, 63-64; Matter of Sarisohn, 21 NY2d 36; Matter of Hayes, 43 AD2d 872, appeal dismissed 35 NY2d 755, lv denied 36 NY2d 641; Matter of Corwin v Mercier, 14 AD2d 652).

The application is granted and David Michael Dally is hereby removed from the office of Superintendent of Highways of the Town of Monroe, Orange County. Mollen, P. J., Mangano, Eiber and Sullivan, JJ., concur.