Opinion
1138 OP 15-00589
11-20-2015
In the Matter of Francis LIBORDI, Petitioner, v. Kenneth ISAMAN, Individually, and Town of Hornellsville, Respondents.
Francis Libordi, Petitioner, pro se. Patrick F. McAllister, Wayland, for Respondents.
Francis Libordi, Petitioner, pro se.
Patrick F. McAllister, Wayland, for Respondents.
Opinion
MEMORANDUM:
Petitioner commenced this original proceeding pursuant to Public Officers Law § 36 seeking removal of Kenneth Isaman (respondent) from the public office of Town Supervisor of respondent Town of Hornellsville (Town). In his answer, respondent sought dismissal of the petition on various grounds, including the ground that he had not engaged in conduct that would warrant such removal. “[R]emoval from office pursuant to Public Officers Law § 36 is an extreme remedy reserved for officials engaged in self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” (Matter of McCarthy v. Sanford, 24 A.D.3d 1168, 1168–1169, 807 N.Y.S.2d 431 [internal quotation marks omitted]; see Matter of Reszka v. Collins, 109 A.D.3d 1134, 1134, 971 N.Y.S.2d 762).
Here, petitioner alleged self-dealing and a conflict of interest arising from respondent's employment with an insurance agency that did business with the Town during respondent's tenure as Town Supervisor. We conclude, however, that respondent “conclusively refuted those allegations, and petitioner failed to present evidence ... to raise a triable issue of fact” (Reszka, 109 A.D.3d at 1134–1135, 971 N.Y.S.2d 762; see Matter of Young v. Costantino, 281 A.D.2d 988, 988, 722 N.Y.S.2d 678; cf. Matter of West v. Grant, 243 A.D.2d 815, 815–816, 662 N.Y.S.2d 863).
Petitioner alleged a further conflict of interest arising from respondent's votes at Town Board meetings in favor of appointing respondent's wife to positions with the Town Board, and approving the salaries for her positions. Respondent admitted that he should have abstained from those votes, and we conclude, under the circumstances, that his failure to do so “ does not constitute the type of conduct that would warrant removal from office” (Reszka, 109 A.D.3d at 1135, 971 N.Y.S.2d 762; see Matter of Salvador v. Ross, 61 A.D.3d 1163, 1164, 876 N.Y.S.2d 754).
It is hereby ORDERED that said petition is unanimously dismissed without costs.