Matter of Peda v New York State Bd. of Real Prop. Servs.

[*1] Matter of Peda v New York State Bd. of Real Prop. Servs. 2009 NY Slip Op 50379(U) [22 Misc 3d 1131(A)] Decided on March 4, 2009 Supreme Court, Albany County Lynch, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 4, 2009
Supreme Court, Albany County

In the Matter of the Application of Debra M. Peda, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York State Board of Real Property Services, Respondent.



3810-08



APPEARANCES:

THE LAW OFFICE OF ROBERT L. BEEBE, LLC

(Scott M. Ronda, Esq., of Counsel)

Attorneys for Petitioner

514 Vischers Ferry Road

Clifton Park, New York 12065

ANDREW M. CUOMO

Attorney General of the State of New York

(Gerald J. Rock, of Counsel)

Attorneys for the State of New York Defendants

The Capitol

Albany, New York 12224

Michael C. Lynch, J.

In this CPLR Article 78 proceeding, petitioner, Debra M. Peda, seeks to annul a determination by respondent, the New York State Board of Real Property [*2]Services, sustaining the removal of Ms. Peda as the appointed assessor of the City of Plattsburgh, Clinton County, New York.

The submissions show the City of Plattsburgh Mayor first apppointed plaintiff as assessor in January, 1993, which appointment was approved by the Common Council of the City of Plattsburgh (see Return Exhibit "Y", Employer 1). The Mayor preferred "charges" against petitioner on December 23, 2003 seeking her removal on various contentions of misconduct pursuant to Civil Service Law §75. (See Return Exhibit "X", Joint I). By resolution adopted January 12, 2004, the Common Council approved the Mayor's appointment of Mark Pettitt as hearing officer (see Return Exhibit "X", Joint 3). Following a hearing held on January 14, 2004 and continued on February 2, 2004, the hearing officer issued "Findings and Recommendations" dated April 16, 2004 finding petitioner guilty of eleven of 14 charges, and recommending termination of her employment (see Return Exhibit "T"). By resolution adopted April 22, 2004, the Common Council adopted the hearing officers recommendations and dismissed petitioner effective that same day (see Return Exhibit "S", agenda item 6). Thereafter, petitioner timely filed an application for review dated May 20, 2004 with the respondent (see Petitioner Exhibit "E") (Real Property Tax Law §324). On January 25, 2004, respondent designated Associate Attorney Stanley Jones as Referee (see Petition Exhibit "F"). By Report of Referee dated May 8, 2007, the Referee recommended that respondent reject petitioner's appeal and confirm her termination (see Return Exhibit "I"). By Resolution 08-04, adopted 2/13/08, the Board adopted the report of the referee (see Return Exhibit "A"). This proceeding ensued.

Pursuant to Real Property Tax Law §324, "an assessor may be removed from office for just cause by the appointing authority after a hearing on notice" (see Matter of City of Mount Vernon v. State of New York Bd. of Equalization & Assessment, 92 AD2d985, app den. 59 NY2d 606). "Just cause" has been defined as "some type of affirmative misconduct or malfeasance in office or the lack of such skill and capability as is necessary to be an effective assessor" (Id, at 987).

As a threshold matter, petitioner contends the Mayor was not authorized to issue the charges as the "appointing authority" under RPTL §324; and further, that she was only accorded a hearing under Civil Service Law §75, not RPTL §324. Neither contention has merit. The statute speaks to removal by the appointing authority. Here, the Mayor appointed petitioner as assessor subject to the approval of the Common Council (Return Exhibit "Y" Employer 1; see RPTL §310[1]) and petitioner was removed by a duly enacted resolution of the Common Council (see Return Exhibit "S"). As such, the Mayor was fully authoritized to prefer charges against petitioner. [*3]

As for the hearing, the record does confirm that the Charges were issued pursuant to Civil Service Law §75 (see Return Exhibit "X"). The submissions show that Clinton County Civil Service Rules classified the title of assessor as non-competitive (see Return Exhibit "Y", Employer 2)[FN1] Under §75[1][c], an employee in the non-competitive class who has completed at least five years of continuous service may only be removed "for incompetency or misconduct shown after a hearing upon states charges". The record confirms petitioner had completed more than five years of continuous service as assessor. By comparison, as noted above, RPTL §324 imposes a "just cause" standard for removal after a hearing on notice. The hearing officer addressed this point at the inception of the hearing and applied the RPTL §324 "just cause" standard in his report (see Return Exhibit "T", pp. 2-3). While this Court agrees with plaintiff that the governing standard for disciplining an assessor is that of "just cause" pursuant to RPTL §324, the record confirms that petitioner was accorded a hearing upon due notice and that the "just cause" standard was, in fact, utilized by the hearing officer. In any event, each standard necessitates a finding of misconduct on incompetence to sustain a removal. Consequently, petitioner's contention that the proceedings were conducted under the wrong standard is rejected.

On the merits, petitioner essentially contends that the respondent State Board failed to timely and adequately review the Common Council's removal determination and that its determination sustaining her removal was arbitrary and capricious. This Court disagrees. Although his "Report of Referee" was unduly delayed,[FN2]Attorney Jones expressly reviewed the administrative record and written submissions of the parties (see Return Exhibit "I"). The referee reasonably observed that the hearing officer "carefully analyzed the evidence before him and I find no reason to disturb his findings" (Return Exhibit "I", p. 2). The referee further noted that the multiple unexcused absences and use of City property for a personal business purpose warranted a termination (Id.). After receiving written submissions from the parties and entertaining oral argument, the respondent State [*4]Board adopted the referee's report. Given this record, the Court cannot conclude that respondent's determination sustaining plaintiff's termination was arbitrary and capricious.

Accordingly, the petition is dismissed, without costs.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the Attorney General's Office. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER

Dated: Albany, New York

March 4, 2009

______________________________________

Michael C. Lynch

Justice of the Supreme Court Footnotes

Footnote 1:Pursuant to RPTL §310[3], the position of appointive assessor is in the classified service, notwithstanding CSL §35(e).

Footnote 2:The three year delay between petitioner's application for review by the State Board and the release of the Referee's Report was addressed in a separate CPLR Article 78 proceeding initiated by petitioner seeking to compel a determination by the State Board (Matter of Peda v. NY State Board of Real Property Services, et al., Albany County Index No. 2905-07). By Decision and Order (Sackett, J.) dated 12/11/07, the court rejected petitioner's petition as premature (see Return Exhibit "F").