| Matter of DeCintio v Village of Tuckahoe |
| 2012 NY Slip Op 08002 [100 AD3d 887] |
| November 21, 2012 |
| Appellate Division, Second Department |
| In the Matter of Anthony J. DeCintio, Petitioner, and KevinMcBride et al., Respondents, v Village of Tuckahoe et al.,Appellants. |
—[*1] Anthony J. DeCintio, Tuckahoe, N.Y., for petitioners-respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of John Fitzpatrick,the Mayor of the Village of Tuckahoe, dated November 13, 2009, which, after a hearing, foundthe petitioners Kevin McBride and Phillip White guilty of inefficiency, neglect of duty, andmisconduct in their positions as Commissioners of the Tuckahoe Housing Authority andremoved them from their posts, and to compel the Village of Tuckahoe to conduct aname-clearing hearing, the Village of Tuckahoe and John Fitzpatrick appeal, as limited by theirbrief, from so much of a judgment of the Supreme Court, Westchester County (Holdman, J.),entered October 27, 2010, as granted the petition to the extent of annulling the determination onthe ground that John Fitzpatrick was not an impartial hearing officer and remitted the matter toJohn Fitzpatrick for the appointment of an impartial hearing officer to conduct a de novo hearing.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, withcosts, that branch of the petition which was to annul the determination on the ground that JohnFitzpatrick was not an impartial hearing officer is denied as academic, that branch of the petitionwhich was to compel the Village of Tuckahoe to conduct a name-clearing hearing is denied, andthe proceeding is dismissed.
The petitioners Kevin McBride and Phillip White (hereinafter together the petitioners), alongwith Anthony DeCintio, commenced this proceeding pursuant to CPLR article 78 seeking, interalia, to annul the determination of John Fitzpatrick, the Mayor of the Village of Tuckahoe,removing McBride and White from their positions as Commissioners of the Village of TuckahoeHousing Authority (hereinafter THA) and, thereafter, to reinstate McBride and White to thosepositions. Charges of inefficiency, neglect of duty, and misconduct were preferred by Fitzpatrickagainst McBride and White as a consequence of an Audit Report issued by the United StatesDepartment of Housing and Urban Development (hereinafter HUD), which identifiedweaknesses in THA's management and operations. The petitioners claim that Fitzpatrick, whopresided over the removal hearing, was biased against them. The Supreme Court granted thepetition to the extent of annulling the determination on the ground that Fitzpatrick was not animpartial hearing officer and directed Fitzpatrick to appoint an impartial hearing officer toconduct a de novo [*2]hearing, based upon the finding thatFitzpatrick's failure to recuse himself as the hearing officer violated the petitioners' due processright to a fair hearing.
Although Fitzpatrick should have recused himself from presiding over the removal hearing,the petition has been rendered academic to the extent that it seeks a judgment annulling hisdetermination dated November 13, 2009, to remove the petitioners from office, since thepetitioners' terms expired prior to the submission of this appeal, and they no longer hold publicoffice (cf. Matter of Gumo v Canzoneri, 263 AD2d 456 [1999]). Similarly, so much ofthe judgment as remitted the matter to Fitzpatrick for the appointment of an impartial hearingofficer to conduct a de novo hearing has been rendered academic by the expiration of thepetitioners' terms of office.
Contrary to the petitioners' argument, they have not established an exception to the mootnessdoctrine. The petitioners have failed to show, and the record does not demonstrate, that theprocess involved in the removal of THA Commissioners is a phenomenon typically evadingreview or that there are substantial and novel issues raised herein (see generally Matter ofHearst Corp. v Clyne, 50 NY2d 707 [1980]; Matter of Field v Stamile, 85 AD3d 1164 [2011]). Furthermore,despite the petitioners' contention that the Village and Fitzpatrick are attempting to thwart theremedial purpose that underlies the instant CPLR article 78 proceeding, the petitioners havefailed to establish that the Village and Fitzpatrick deliberately delayed this matter so as to allowthe petitioners' terms to expire, and thereby foreclose judicial review.
The expiration of the petitioners' terms of office does not, however, preclude the petitionersfrom exercising their right to seek a name-clearing hearing upon a showing that Fitzpatrickcreated and disseminated a false and defamatory impression about them in connection with theirremoval (see Matter of Lentlie v Egan, 61 NY2d 874, 875 [1984]). As such, thepetitioners also sought such relief in their petition.
The petitioners contend that Fitzpatrick focused only on those Commissioners of the THAthat had been appointed by his predecessor as mayor, rather than elected by public housingtenants, and that this focus tended to create an impression that those specific Commissioners ofthe THA, including the petitioners, were guilty of misconduct. However, the alleged misconductconstituted, at best, "individual or isolated instances of bad judgment or incompetentperformance of duties, correctable by learning from one's mistakes, which are notstigma[s] of constitutional proportions" entitling the petitioners to a name-clearing hearing(Matter of Swinton v Safir, 93 NY2d 758, 763 [1999] [internal quotation marks omitted];see Matter of Petix v Connelie, 47 NY2d 457 [1979]). Furthermore, there is no indicationthat any of Fitzpatrick's findings or comments made to the media were false since they werebased upon the problems identified in the HUD Audit Report (see generally Matter ofEngoren v County of Nassau, 163 AD2d 520 [1990]). Instead of directly disputing thecharges, the petitioners largely argue that THA's former executive director and THA's attorneyshould be made to answer for the identified problems. Thus, the petitioners have notdemonstrated their entitlement to a name-clearing hearing.
In view of the foregoing, we need not address the parties' remaining contentions. Angiolillo,J.P., Lott, Austin and Cohen, JJ., concur.