In the Matter of Miller v. Balland

Full title: IN THE MATTER OF BRUCE R. MILLER ET AL., Petitioners, v. MARY ANN BALLAND…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: May 13, 2004

7 A.D.3d 916 (N.Y. App. Div. 2004)

776 N.Y.S.2d 630

Opinion

95183.

Decided and Entered: May 13, 2004.

Proceeding initiated in this Court pursuant to Public Officers Law § 36 to remove respondents from various offices in the Town of Big Flats, Chemung County.

Bruce R. Miller, Horseheads, petitioner pro se.

Robert F. Izzo, Horseheads, petitioner pro se.

Thomas W. Reed II, Corning, for respondents.

Before: Mercure, J.P., Peters, Spain, Carpinello and Kane, JJ.

MEMORANDUM AND JUDGMENT

KANE, J.

Petitioners, both residents of the Town of Big Flats, Chemung County, commenced this proceeding seeking to remove respondent Mary Ann Balland from the office of Town Supervisor and respondents Duane Gardner, Leonard Kaner and Edward Fairbrother as Members of the Town Council. The petition asserts that respondents unlawfully issued a building permit for a new Town community center by not collecting a fee and failing to obtain a sewage treatment system construction permit until after construction began (see Town of Big Flats Mun Code §§ 15.04.040, 15.04.170). Respondents do not dispute the basic facts underlying the petition and move to dismiss the petition for failure to state a claim. We grant respondents' motion.

To state a cause of action under Public Officers Law § 36, a petition must allege that the respondents' conduct was plagued by "`self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust'" (Matter of Morin v. Gallagher, 221 A.D.2d 765, 766, quoting Matter of Deats v. Carpenter, 61 A.D.2d 320, 322; accord Matter of Miller v. Filion, 304 A.D.2d 1016, 1017). Here, even assuming that respondents did not strictly follow the procedure for issuing a building permit, minor administrative oversights and deviations from the law are not enough to precipitate the drastic remedy of removal (see Matter of Morin v. Gallagher, supra at 766; Matter of Deats v. Carpenter, supra at 322). Accordingly, we conclude that the petition fails to state a cause of action and must be dismissed. An award of sanctions against petitioners, as requested by respondents, is not warranted under the circumstances (see Matter of Morin v. Gallagher, supra at 766).

Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.

ADJUDGED that the motion to dismiss is granted, with costs, and petition dismissed.