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March 19, 2013

Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction


Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction
Nielsen v Hafner, 2013 NY Slip Op 01555, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer, other than a justice of the peace, for misconduct, maladministration, malfeasance or malversation in office.

Any citizen resident in the jurisdiction, or the appropriate district attorney, may file a §36 applicationseeking the removal of such an officer with the Appellate Division in the appropriate judicial department. §36 provides that a copy of the application and the charges upon which the application will be made must be served on the officer at least 8 days prior to such filing.

Karen Nielsen initiated an action seeking a court order to remove Bruce Hafner from public office in Cold Spring Harbor, Town of Huntington, Suffolk County, pursuant to Public Officers Law §36 with the Appellate Division.

Nielsen also filed a petition pursuant to Article 78 of the Civil Practice Law and Rules with the Appellate Division seeking an order to compel Hafner to resign as Fire Commissioner of the Cold Spring Harbor Fire District.

Hafner asked the Appellate Division to dismiss Nielsen’s petition filed pursuant to Public Officers Law §36 on the ground that it was not properly served upon him. The court agreed and granted Hafner’s motion to the extent that it sought relief pursuant to Public Officers Law §36, indicating that the petition was not properly served in accordance with the Court’s rules as set out in 22 NYCRR 670.18.*

Turning to Nielsen’s Article 78 petition seeking a court order compelling Hafner to resign from his office of Fire Commissioner, the Appellate Division dismissed this branch of the action as well, explaining it did not have subject matter jurisdiction to consider the Article 78 petition filed by Nielsen.

* The rules of the Appellate Division, Second Department provide that a special proceeding pursuant to Public Officers Law §36 “shall be commenced by the filing of a petition in the office of the clerk … pursuant to CPLR 304. Service of the petition with a notice of petition or order to show cause shall be made in accordance with CPLR 306-b on at least 20 days' notice to the respondent.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_01555.htm

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