Young v. Costantino

281 A.D.2d 988, 722 N.Y.S.2d 678, 2001 N.Y. App. Div. LEXIS 2850

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2001
• Status: Published

Opinion

Petition unanimously dismissed with costs. Memorandum: Petitioner commenced this special proceeding in this Court seeking the removal of respondent from the office of Mayor of the Village of Seneca Falls pursuant to Public Officers Law § 36. The verified petition alleges 12 causes of action, each of which is based on hearsay. Respondent’s verified answer is based on personal knowledge and is supported by the affidavit of a person with personal knowledge. In a special proceeding, the court “shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised,” and the court “may make any orders permitted on a motion for summary judgment” (CPLR 409 [b]). “In view of the evidence submitted by respondent ], it was incumbent upon petitioner [] to make at least an evidentiary showing that an issue of fact existed,” and we conclude that petitioner failed to make that showing (Matter of Izzo v Lynn, 271 AD2d 801, 802; see, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C409:l; see also, Zuckerman v City of New York, 49 NY2d 557, 562). (Original Proceeding Pursuant to Public Officers Law § 36.) Present — Pine, J. P., Wisner, Hurlbutt, Scudder and Kehoe, JJ.