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Wednesday, August 10, 2011

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"


Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"
Matter of Seidel v Prendergast, 2011 NY Slip Op 06132, Appellate Division, Second Department

Michael Seidel and others [Seidel] joined in filing a petition pursuant of Article 78 of the Civil Practice Law and Rules challenging the action of the Town Board of the Town of Orangetown appointing Kevin Nulty to the position of the town's Chief of Police. Supreme Court of Orangetown, Rockland County, dismissed the petition on the grounds that Seidel “lacked standing” to pursue the action. Seidel appealed.

Essentially Seidel contended that Nulty’s appointment was unlawful because no competitive examination had been held for appointment to the position of Chief of Police.

The Appellate Division sustained the lower court’s dismissal of Seidel’s petition, explaining that “In general, persons seeking to challenge governmental actions must demonstrate that they are personally aggrieved by those actions in a manner ‘different in kind and degree from the community generally,'"

In this instance Seidel and his co-petitioners made no attempt to demonstrate they was aggrieved by Nulty’s appointment. Rather, said the Appellate Divisiont, they claim that they "have standing to challenge unlawful and unconstitutional civil service appointments regardless of whether they are personally aggrieved."

The Appellate Division rejected this theory, holding that while the doctrine of common-law taxpayer standing would excuse such lack of personal aggrievement, that doctrine requires the petitioner to establish that "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action."

As Seidel failed to demonstrate that there was an "impenetrable barrier" to judicial scrutiny of the administrative determination resulting in the appointment of Nulty as the Town's Chief of Police, the Appellate Division concluded that the “Supreme Court properly granted the motions to dismiss the petition on the ground that the petitioners lacked standing.”

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