| Matter of Salvador v Ross |
| 2009 NY Slip Op 02710 [61 AD3d 1163] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of John Salvador, Jr., Petitioner, v Teri Ross, asAssessor of the Town of Queensbury, Respondent. |
—[*1] Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Cathi L. Radner of counsel), forrespondent.
McCarthy, J. Proceeding initiated in this Court pursuant to Public Officers Law § 36to remove respondent from the office of Assessor of the Town of Queensbury, Warren County.
Petitioner, a resident of the Town of Queensbury, Warren County, commenced thisproceeding in this Court seeking to remove respondent from her position as the Assessor of theTown of Queensbury pursuant to Public Officers Law § 36 for "mismanagement."Petitioner's claims stem from respondent's role in tax assessment challenges by numerouslakefront property owners. Most of these challenges were ultimately settled in an agreementnegotiated by respondent but approved by the Town Board. The allegations of misconduct areessentially that respondent violated the law by permitting the late submission of numerous taxassessment complaints and by "allowing," and then implementing, a settlement which itselfviolated statutory law and public policy. Respondent opposes the petition and seeks to dismiss itfor failure to state a cause of action (see CPLR 3211 [a] [7]). She also requests thatsanctions be imposed by this Court for frivolous conduct.
The allegations in the petition, even if accepted as true, do not remotely rise to the levelrequired for removal pursuant to Public Officers Law § 36 (see Matter of Price vEvers, 45 AD3d [*2]1075, 1076 [2007]), which "was enactedto enable a town or village to rid itself of an unfaithful or dishonest public official" (Matterof Miller v Filion, 304 AD2d 1016, 1017 [2003] [internal quotation marks and citationsomitted]). It is firmly established that removal from office pursuant to Public Officers Law§ 36 is unwarranted in the absence of allegations of "self-dealing, corrupt activities,conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust" (Matter of Chandler v Weir, 30 AD3d795, 796 [2006] [internal quotation marks and citations omitted]; see Matter of Miller v Balland, 7AD3d 916, 917 [2004]; Matter of Miller v Filion, 304 AD2d at 1017). In otherwords, "[r]emoval is a drastic remedy reserved for unscrupulous conduct or gross dereliction ofduty or conduct that connotes a pattern of misconduct and abuse of authority" (Matter ofPrice v Evers, 45 AD3d at 1076 [internal quotation marks and citations omitted]).
Here, not one allegation in the petition, particularly those pertaining to the late acceptance ofcomplaints and respondent's role in settling the subject tax assessment claims, rises to the levelnecessary to justify removal (see Matter of Price v Evers, 45 AD3d at 1076-1077;Matter of Chandler v Weir, 30 AD3d at 796; Matter of McCarthy v Sanford, 24 AD3d 1168, 1168-1169 [2005];Matter of Miller v Balland, 7 AD3d at 917; Matter of Morin v Gallagher, 221AD2d 765, 766 [1995]). Indeed, other than alleging "mismanagement" on respondent's part, thepetition does not set forth a single act of unscrupulous conduct or intentional wrongdoing, letalone evidence of any gross dereliction of duties or a pattern of misconduct. Becauserespondent's alleged conduct does not warrant removal, the petition fails to state a cause ofaction and must be dismissed (see Matter of Price v Evers, 45 AD3d at 1077; Matterof Chandler v Weir, 30 AD3d at 796; Matter of Miller v Balland, 7 AD3d at 917;Matter of Miller v Filion, 304 AD2d at 1017; Matter of Morin v Gallagher, 221AD2d at 766).
Respondent also seeks sanctions for frivolous conduct pursuant to 22 NYCRR 130-1.1. Thegrounds for the request are twofold, namely, that the petition is wholly without legal merit(see 22 NYCRR 130-1.1 [c] [1]) and that this proceeding was commenced to harassrespondent and other town officials (see 22 NYCRR 130-1.1 [c] [2]). While we declineto impose sanctions at this time, we note that petitioner has previously commenced two PublicOfficers Law § 36 removal proceedings against various officials (Matter of Salvador vNaylor, 222 AD2d 931 [1995]; Matter of Salvador v Grant, 221 AD2d 797 [1995]),one of which was dismissed for failure to state a cause of action (see Matter of Salvador vNaylor, 222 AD2d at 931-932). Thus, he needs no further reminder of the high thresholdrequired to state such cause of action.
Cardona, P.J., Peters, Malone Jr. and Stein, JJ., concur. Adjudged that the motion to dismissis granted, with costs, and petition dismissed.