| Matter of Brown v Foster |
| 2010 NY Slip Op 04185 [73 AD3d 917] |
| May 11, 2010 |
| Appellate Division, Second Department |
| In the Matter of Leesther Brown, Appellant, v Mary F.Foster et al., Respondents. |
—[*1] Joseph Stargiotti, Corporation Counsel, Peekskill, N.Y., for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondentMary F. Foster, in her capacity as Mayor of the City of Peekskill, dated July 8, 2008, directingthe petitioner to refrain from exercising the duties and responsibilities of the offices ofCommissioner and Chairperson of the City of Peekskill Housing Authority Board on the groundthat certificates of her appointment to those offices had not been filed with the Commissioner ofthe New York State Division of Housing and Community Renewal, the petitioner appeals froman order and judgment (one paper) of the Supreme Court, Westchester County (Hubert, J.),entered May 5, 2009, which granted the respondents' motion pursuant to CPLR 3211 (a) (7) and7804 (f) to dismiss the petition for failure to state a cause of action, and dismissed theproceeding.
Ordered that the order and judgment is affirmed, with costs.
The Supreme Court properly granted the respondents' motion pursuant to CPLR 3211 (a) (7)and 7804 (f) to dismiss the petition in this proceeding. On a motion pursuant to CPLR 3211 (a)(7) and 7804 (f), only the petition is considered, all of its allegations are deemed true, and thepetitioner is accorded the benefit of every possible inference (see Matter of 10 E. Realty, LLC v Incorporated Vil. of Val. Stream, 17AD3d 472, 473 [2005]; Matter of Hutt v Retirement Bd. of N.Y. State Teachers'Retirement Sys., 299 AD2d 679, 680 [2002]). Here, the petition fails to allege that thepetitioner was properly appointed to the offices of Commissioner and Chairperson of the City ofPeekskill Housing Authority Board because it does not allege that a certificate of reappointmentwas filed with the Commissioner of the New York State Division of Housing and CommunityRenewal, as required by Public Housing Law § 30 (2). The petitioner's bare legalconclusion that she was "duly" appointed for a term commencing on February 24, 2007, andending on February 23, 2010, was insufficient to make out a claim that she was appointed to herpositions in accordance with statutory requirements (see e.g. Garner v China Natural Gas, Inc., 71 AD3d 825 [2010]; McHenry v Lawrence, 66 AD3d650 [2009]). Under these circumstances, the petition fails to state a cause of action.
The petition also failed to state a cause of action against the respondent City of Peekskill.The City itself is not a proper party to this proceeding since only the mayor of the City hadauthority to [*2]appoint the petitioner or direct her to refrain fromexercising the duties and responsibilities of the offices of Commissioner and Chairperson of theCity of Peekskill Housing Authority Board (see Public Housing Law § 30 [2];§ 34; see generally Staniszewski v Lackawanna Mun. Hous. Auth., 191 AD2d1048 [1993]), and the City did not purport to exercise such authority in any event. Fisher, J.P.,Dillon, Dickerson and Eng, JJ., concur.