Seifried v. Town of Clarkstown

23 A.D.2d 795, 259 N.Y.S.2d 202, 1965 N.Y. App. Div. LEXIS 4373

Opinion

In a proceeding pursuant to article 78 of the CPLR, to review and to annul a determination of the Town Board of the Town of Clarkstown, in effect removing the petitioners from office as members of the Town Planning Board without cause shown and without a hearing, the petitioners appeal from an order of the Supreme Court, Rockland County, entered March 25, 1964, which on respondents’ motion, made before answer pursuant to statute (CPLR 7804, subd. [f]), dismissed the petition on the ground that the Town Board’s determination was a legislative act not reviewable by the court in an article 78 proceeding. Order reversed, with $10 costs and disbursements, and respondents’ motion denied. Respondents’ time to answer the petition is extended until 30 days after entry of the order hereon. In our opinion, the Town Board’s action was administrative and not legislative. By abolishing the then existing Planning Board and immediately appointing a new Planning Board with different members, the Town Board in effect removed petitioners from office without cause and without a public hearing, in contravention of section 271 of the Town Law. Under such circumstances, an article 78 proceeding is petitioners’ proper remedy (CPLR 7803). We find the petition sufficient in law. Beldock, P. J., Ughetta, Hill, Rabin and Benjamin, JJ., concur.