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Mere conclusion that individual was properly appointed to public office insufficient to establish a standing to sue

Mere conclusion that individual was properly appointed to public office insufficient to establish a standing to sue
Brown v Foster, 2010 NY Slip Op 04185, Decided on May 11, 2010, Appellate Division, Second Department

Mary F. Foster, as Mayor of the City of Peekskill, directed Leesther Brown ?to refrain from exercising the duties and responsibilities of the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board as the certificates of her appointment to those offices had not been filed with the Commissioner of the New York State Division of Housing and Community Renewal.?*

Claiming that she had been "duly" appointed for a term commencing on February 24, 2007, and ending on February 23, 2010, Brown filed an Article 78 petition in Supreme Court challenging the Mayor?s directive. Supreme Court granted the Mayor?s motion to dismiss Brown?s petition ?for failure to state a cause of action? and dismissed the proceeding.

Brown appealed but the Appellate Division sustained the lower court?s ruling.

The Appellate Division said that for the purposes of considering the matter, all of the allegations in Brown?s petition are deemed true, and Brown is accorded the benefit of every possible inference.

Here, however, said the court, Brown?s petition failed to allege that she was properly appointed to the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board as it does not claim that the relevant certificates of reappointment was filed with the Commissioner of the New York State Division of Housing and Community Renewal, as required by Public Housing Law §30(2).**

Brown?s petition, said the court, presented the ?bare legal conclusion? that she was "duly appointed" to these offices for a term ending on February 23, 2010. The Appellate Division ruled that this was insufficient to make out a claim that Brown was appointed to her positions in accordance with requirements set out in §30(2).

The Appellate Division also noted that Brown?s lawsuit named the City of Peekskill as a respondent in her Article 78 petition.

However, said the court, the City itself is not a proper party to the action as only the mayor of the City had the authority to appoint Brown or direct her to refrain from exercising the duties and responsibilities of the offices of Commissioner and Chairperson of the City of Peekskill Housing Authority Board.

* On August 5, 2009 Peekskill?s ?Journal News? reported that ?Leesther Brown, a former chairwoman of the city's housing board, is set to run an independent campaign for the mayor's office.?

** §30.2 controls in this instance as the Peekskill Housing Authority was not created by a special act of the legislature. Accordingly, the mayor is required to file with the Commissioner of Housing ?a certificate of appointment or the reappointment of any member? to effect such appointments.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04185.htm

Full post as published by New York Public Personnel Law on May 17, 2010 (boomark / email).