Opinion
Argued September 15, 2000.
Decided September 15, 2000.
Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial, entered July 20, 2000, which (1) reversed an order of the Supreme Court (John R. Tenney, J.), entered in Oneida County in a proceeding pursuant to CPLR article 78, granting a petition to compel the Utica City Clerk to file a certificate with the Oneida County Board of Elections directing that the Office of Mayor for the City of Utica be placed on the ballot for the year 2000 general election, and (2) dismissed the petition.
On July 3, 2000 the Mayor of the City of Utica resigned. Pursuant to General City Law § 2-a (1), the powers and duties of the Mayor's Office passed to the President of the Common Council. General City Law § 2-a (1), the powers and duties of the Mayor's Office passed to the President of the Common Council. General City Law § 2-a (3)(b) provides that a City Charter provision in effect prior to November 5, 1975, which provides for an election to fill the unexpired term, prevails over the succession to the President of the Common Council. Based on this exception and the Utica City Charter, petitioner commenced a CPLR article 78 proceeding to compel the Utica City Clerk and City of Utica to file a certificate with the Oneida County Board of Elections directing that the Office of Mayor be placed on the ballot for the year 2000 general election. Supreme Court ordered respondents to file the certificate.
The Appellate Division reversed, concluding that because the Utica Charter provision does not strictly comply with the statutory exception in General City Law § 2-a (3) (b), the General City Law governs.
Richard E. Kaplan, for appellant.
Richard A. Frye, for respondents.
The order of the Appellate Division should be affirmed, without costs.
General City Law § 2-a(1) governs mayoral succession in cities where the Mayor and Common Council President (or comparable officer) are elected citywide and hold office in tandem. The law provides that upon resignation of the Mayor, the powers and duties of the mayoralty devolve upon the Common Council President "for the residue of the term" (General City Law § 2-a). The statute, however, contains an exception. To qualify for the exception, a city charter provision must have been enacted prior to November 5, 1975 and provide "for a vacancy in the office of mayor to be filled in at the next general election if the vacancy occurs before the twentieth day of September and otherwise in the general election held in the following year" (General City Law § 2-a[b]). Because Utica City Code § 2.023 City(c) does not fit within the exception, the successorship provision of General City Law § 2-a(1) governs. To the extent that Henry v Tutunjian ( 96 A.D.2d 1009) is inconsistent with our holding today, it should not be followed.
The legislative history of General City Law § 2-a(3)(b) leaves no doubt as to the limited purpose of the exception (see, Bill Jacket, L 1980, ch 191). It was drawn specifically to rectify an inconsistency between the General City Law and the New York City Charter (see, Sponsor's Memorandum, in Bill Jacket, L 1980, ch 191). The Legislature did not enact the exception to invite local departures from the statewide design for mayoral succession set forth in General City Law § 2-a(1).
Finally, we reject petitioner's constitutional challenge. This Court has held that "Section 2-a of the General City Law is a proper exercise of legislative power in an area of State-wide significance and, therefore, does not implicate the home rule provisions of article IX of the Constitution" (see, Radich v Council of the City of Lackawanna, 61 N.Y.2d 652, 654).
Order affirmed, without costs, in a memorandum. Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.