Matter of Brown v Foster

[*1] Matter of Brown v Foster 2009 NY Slip Op 52779(U) [29 Misc 3d 1212(A)] Decided on May 4, 2009 Supreme Court, Westchester County Hubert, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 4, 2009
Supreme Court, Westchester County

In the Matter of the Application of Leesther Brown, Petitioner,

against

Mary F. Foster, in her capacity as Mayor of the City of Peekskill, and the City of Peekskill, New York, Respondents.



08/18993



Jonathan Lovett, Esq., Law Office of Jonathan Lovett, Esq., 222 Bloomingdale Road, White Plains, NY 10605.

Joseph Stargiotti, Esq., Deputy Corporation Counsel, City of Peekskill, 840 Main Street, Peekskill, NY 10566, Attorney for Respondents.

James W. Hubert, J.

In this CPLR Article 78 proceeding, Petitioner Leesther Brown, a former commissioner with the City of Peekskill Housing Authority, moves for an order from this Court (1) annulling an administrative determination which terminated her position; and (2) reinstating her to a three-year term of office. Petitioner also seeks a declaration that her term of office as commissioner is for three years, commencing on February 24, 2007, and ending on February 23, 2010, as set forth in an appointment letter she received from the former Mayor of the City of Peekskill. Respondents City of Peekskill and Mary F. Foster, the current Mayor, move to dismiss the petition on the grounds that Petitioner's appointment to the Peekskill Housing Authority was invalid and never became effective. For the reasons set forth below, Respondents' motion to dismiss is granted.

The facts underlying this case are not in dispute. The Peekskill Housing Authority ("Housing Authority") is a public corporation chartered under New York's Public Housing Law for the purpose of providing low-cost housing in the City of Peekskill, New York. See L. 1939, ch. 808. Section 3(2) of the Public Housing Law defines the word "authority" to include eleven municipal [*2]housing authorities (including the Peekskill Housing Authority) that were already in existence when the Public Housing Law was enacted in 1939, and in effect continued their existence.[FN1] Thus, the Peekskill Housing Authority is subject to the state Public Housing Law. See, e.g., American Store Equipment & Constr. Corp. v. Buffalo Municipal Hous.Authority, 202 Misc. 222, 111 NYS2d 688 (1952), aff'd 282 App. Div. 824, 122 NYS2d 533 (4th Dep't 1953) (Buffalo Municipal Housing Authority is public corporation subject to Public Housing Law).

Section 30 of the Public Housing Law provides for the organization of the various municipal housing authorities, including the Peekskill Housing Authority. That section provides, in relevant part:

§ 30. Organization of authorities

1. In the case of an authority hereafter established by a special act of the legislature, the mayor of a city or village, or the town board of a town, shall file in the office of the commissioner, and a duplicate in the office of the secretary of state, a certificate signed by him or it and setting forth: (a) the date of the passage of the special act establishing the authority; (b) the name of the authority; and (c) the names of the members and their terms, specifying which member is chairman.

2. Except as otherwise provided by special act of the legislature, an authority shall consist of not less than three nor more than seven members. The members of an authority who are first appointed shall be not more than five in number and shall be designated to serve for terms of one, two, three, four and five years respectively from the date of their appointment, depending upon the number of members constituting the authority. Thereafter the term of office of appointive members shall be five years. A member shall continue to hold office until his successor is appointed or elected and has qualified. The mayor of a city or village, or the town board of a town, shall appoint the appointive members, designate the first chairman and file with the [New York State Commissioner of Housing and Community Renewal] a certificate of appointment or the reappointment of any member.

9 NYCRR 1601.1(a)(l), which relates to the development and operation of State-aided housing by municipal housing authorities, including the Peekskill Housing Authority, also provides:

The mayor or other chief executive of a municipality shall file with the commissioner a certificate of appointment of reappointment or any member of an authority. No such appointment or reappointment shall be effective until such certificate has been filed (emphasis added).

In this case, the former Mayor of Peekskill, John G. Testa, initially appointed Petitioner to the [*3]Housing Authority on February 23, 2004. Petitioner's letter of appointment does not state which of the five existing Housing Authority members she was replacing. However, an affidavit submitted by the current Mayor of Peekskill, Mary F. Foster, states that "based on a review of the 2004 and 2005 housing authority member lists it was determined that Ms. Brown had replaced John Macci, whose term was to expire on May 24, 2005." Neither side disputes this fact.

The February 23, 2004 appointment letter states that Petitioner's term would be for three years "commencing February 23, 2004 and ending February 23, 2007." Petitioner took and filed her oath of office within 30 days of her appointment, as required by Public Officers Law § 30, but the Mayor did not file a certificate of appointment with the New York State Commissioner of Housing and Community Renewal under Housing Law § 30(2). Nevertheless, Petitioner remained in office and fulfilled her duties as a member of the Housing Authority continuously from February 23, 2004 until February 23, 2007.[FN2]

By letter dated February 7, 2007, the former Mayor of Peekskill re-appointed Petitioner to the Housing Authority for a term of three years "commencing on February 24, 2007 and ending February 23, 2010." Petitioner again filed her oath of office within 30 days of her reappointment pursuant to Public Officers Law § 30, but the Mayor again failed to file a certificate of re-appointment as required under Public Housing Law § 30(2). Petitioner remained in office and fulfilled her duties from February 24, 2007 until mid-July 2008.

In the interim, Respondent Mary F. Foster was elected as Peekskill's new Mayor and took office commencing January 1, 2008. By letter dated July 8, 2008, Respondent Mary F. Foster terminated Petitioner's seat on the Housing Authority on the grounds that Petitioner's term had already expired, in essence concluding that Petitioner was a hold-over rather than an appointee for a term. The letter states that since Petitioner's initial appointment on February 23, 2004 to the Peekskill Housing Authority was to fill a vacancy for an unexpired term that ended on May 24, 2005, Petitioner's subsequent re-appointment to a three-year term "would have expired" on May 24, 2008. The letter also states that the Mayor never filed a certificate of appointment, and thus her re-appointment to the Housing Authority was "never recognized."

Petitioner now seeks reinstatement to her position with the Housing Authority on the grounds that she was validly appointed to a three-year term commencing on February 24, 2007, and that Respondents had no power or authority to terminate her earlier. Petitioner further claims that Respondents should be estopped from arguing that her re-appointment was invalid because there is no record that any certificate of appointment or re-appointment of Peekskill Housing Authority members has ever been filed with the New York State Commissioner of Housing and Community Renewal pursuant to Public Housing Law § 30(2) or any other provision of law.

This Court agrees that Petitioner's initial appointment was not fully consummated in accordance [*4]with Public Housing Law § 30(2) and that her subsequent reappointment never became effective. While Petitioner's February 23, 2004 appointment letter from the former Mayor states that her term would be for three years "commencing February 23, 2004 and ending February 23, 2007," the term that Petitioner was legally serving ended at the conclusion of her predecessor's unexpired term on May 24, 2005. A person elected or appointed to an office serves the legal term for that office, even though at the time of election or appointment there was misapprehension as to the length of the legal term, or there was a deliberate effort to provide a longer or shorter term than specified by law. See Enders v. Rossi, 45 AD2d 447, 358 NYS2d 782 (4th Dep't 1974), aff'd 34 NY2d 966, 360 NYS2d 408 (1974); Ross v. Cohen, 283 NY 388, 28 NE2d 883 (1940).

Moreover, Section 34 of Public Housing Law, entitled "vacancies and removals," specifically states that: "A vacancy occurring other than by reason of the expiration of the term of a member of an authority shall be filled for the unexpired term."

The statute therefore does not contemplate that there is an end and a new beginning of the term at the time of each appointment. Sections 30 and 34 conclusively establish that housing authority members have fixed and definite terms of five years after the initial staggered term process is completed. The commencement of the term of office of each successive appointee, whether for an entire term or for part of an unexpired term, is controlled by the date of the conclusion of the first initial appointment. Although there may be holdovers extending into portions of succeeding terms, or appointments made to fill unexpired terms, the term of the successor can only run from appointment to the expiration of the legal term.

In other words, the appointment of a member to fill a vacancy does not create a new or overriding term of office. To hold otherwise would negate the clear language of Section 34, which provides that a vacancy occurring other than by reason of the expiration of the term of a member of a housing authority shall be filled for the unexpired term. Resignation or removal of an officer during his or her term of office and the election or appointment of a successor does not divide the term, or create a new and distinct term.

Similarly, the term of office is not affected by the holding over of another member beyond the expiration of the term for which he or she was appointed. A holdover period cannot be included within the prospective five-year (or three-year) term, as was done by the former Mayor in this case. Holding over does not enlarge the length of the incumbent term but instead shortens the tenure of the succeeding member. See, e.g., Selway v. Schultz, 268 N.W.2d 149, 151 (S.D. 1978) (concluding that the holdover period after the expiration of a term must be included in the successor's term); Opinion of the Justices, 112 N.H. 433, 298 A.2d 118, 119 (N.H. 1972)(statute fixes the term of the office, not of the appointee, and statute does not extend term to include a period of holding over).

The fact that the former Mayor appointed Petitioner for a three-year term ending on February 7, 2007, has no effect upon the legal period during which she was to hold office. See Informal Opinion of the State Attorney General dated October 3, 1975, 1975 N.Y.Op. (Inf.) Att'y Gen. 269 [*5]("a person elected or appointed to an office serves the legal term even though at the time of election or appointment there existed a misapprehension as to the length of the legal term of there was a deliberate effort to provide a longer or shorter term than specified by law"); Informal Opinion of the State Attorney General dated January 13, 1971, 1971 NY Op. (Inf.) Att'y Gen. 49 (an elected or appointed officer holds office for the legal term of the office even though the election or appointment was thought to be for a term of different length); Newman v. Fair Lawn, 31 N.J. 279, 157 A.2d 314 (1960) (where, by the correct construction of a city charter, the term of a city officer is fixed at two years, and a person is appointed to the office for one year only, the appointment is valid for the full statutory period) also see generally 5-76 Antieau on Local Government Law, Second Edition § 76.07 (an appointment for a term other than that specified under the applicable statute or charter is an effective appointment for the statutory term).

Because Petitioner remained in office beyond the end of her term on May 24, 2005, she continued in office as a holdover. Section 30(2) of the Public Housing Law provides that "[a] member shall continue to hold office until his successor is appointed or elected and has qualified." Public Officers Law § 5 also contains a holdover provision. See Staniszewski v. Lackawanna Mun. Hous. Auth., 191 AD2d 1048, 595 NYS2d 160 (4th Dep't 1993)(housing authority member failed to file oath of office within 30 days of his reappointment as required by Public Officers Law § 30 and thus appointment was vitiated and his status became that of a holdover until his successor was chosen and qualified); LaPolla v. De Salvatore, 112 AD2d 6, 490 NYS2d 396 (4th Dep't 1985)(city commissioner's office deemed vacant for purpose of choosing successor because commissioner never properly appointed for a term of five years and thus was a holdover under the Public Officers Law); Sylvester v. Mescall, 277 A.D. 961, 99 NYS2d 984 (4th Dep't 1950)(where former members of Housing Authority failed to file their oath of office as required by section 30 of the Public Officers Law, their offices became vacant and Mayor appointed petitioner to fill those offices); see also D'Angelo v. Velella, 167 Misc 2d 719, 634 NYS2d 1011 (Kings Co. Sup. Ct. 1995)(respondent not validly reappointed to the position of Kings County Republican Commissioner for term expiring December 31, 1996, and thus became holdover).

Neither party disputes that Peekskill Housing Authority members serve three-year terms,[FN3] [*6]although Section 30 of the Public Housing Law provides that members of housing authorities shall serve five-year terms.[FN4] In any event, the Court need not resolve any issue concerning the proper length of the term of Housing Authority members, because in either case Petitioner's appointments to the Housing Authority never became effective and she therefore served as a "de facto officer" in a holdover capacity.

Petitioner continued as a holdover in office notwithstanding the letter of re-appointment by the former Mayor on February 7, 2007, designating a three-year term expiring February 23, 2010, because no certificate of re-appointment was filed with the New York State Commissioner of Housing and Community Renewal pursuant to Public Housing Law § 30(2). The law is clear that "[t]he mayor or other chief executive of a municipality shall file with the commissioner a certificate of appointment or reappointment of any member of an authority" and that "[n]o such appointment or reappointment shall be effective until such certificate has been filed." 9 NYCRR 1601.1(a)(1). Where there are statutory procedures governing appointments, compliance with the procedures is required in order for the appointment to be valid. See, e.g. Westphal v. City of Council Bluffs, 275 N.W.2d 439, 445 (Iowa 1979) (finding that during years that former city clerk held office, despite having been never properly re-appointed to that office, he was not improperly removed because his status was that of a holdover appointee. "Under our view of this case, he was not removed within the meaning of that section; he was simply not reappointed. His status as a holdover clerk was terminated"); Smith v. Oakdale, 353 So. 2d 455 (La. Ct. App. 1977)(trial court erred in ordering the city to appoint applicant as chief of police because he was not certified in writing as eligible pursuant to statute); Goodman v. Clerk of Circuit Court, 291 Md. 325, 435 A.2d 422 (1981)(holding that a valid appointment requires strict compliance with the statutory provisions granting the power to appoint). Thus, while Petitioner remained in office [*7]and fulfilled her duties as commissioner continuously since May 23, 2004, her legal status remained that of a holdover.

The Court is not unsympathetic to Petitioner's predicament. The Court also recognizes that permitting the Mayor to create an at-will employment arrangement by simply failing to file a certificate of re-appointment contravenes the statutory scheme established to secure the independence and integrity of the Housing Authority.[FN5] However, as a matter of law, Petitioner's re-appointment never became effective, and hence her status as commissioner of the Housing Authority was that of a holdover until her successor was chosen. See Staniszewski v. Lackawanna Mun. Hous. Auth., 191 AD2d at 1048. Having determined that Petitioner was serving in a holdover capacity at the time that her successor was chosen by Respondent Mary F. Foster, the Court need not resolve the question of whether the legal duration of Petitioner's term (or any other term of a Housing Authority members) under the applicable law is for three years, or for five years pursuant to Public Housing Law § 30.

The Court also finds that the Mayor is not equitably estopped from denying the validity of Petitioner's appointment on account of the failure to comply with Public Housing Law § 30(2) and the applicable New York Codes, Rules and Regulations. The doctrine of equitable estoppel is a principle that is applied in the interest of fairness to preclude a party from speaking against his own acts, commitments or representations which induced another, who reasonably relied on such words or conduct and who would suffer injury if such conduct or representations which induced another, who reasonably relied on such words or conduct or representations, were allowed to stand. 28 Am. Jur. 2d Estoppel and Waiver § 28. See Brennan v. New York City Housing Authority, 72 AD2d 410, 424 NYS2d 687 (1st Dep't 1980); Fordock v. Syracuse, 153 Misc 2d 130, 580 NYS2d 810 (Sup. Ct. Onondaga Co. 1992). However, estoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties. E.F.S. Ventures Corp. v. Foster, 71 NY2d 359, 526 NYS2d 56 (1988).

It should also be noted that none of the acts undertaken by Petitioner during her tenure on the Housing Authority are invalidated by reason of the defective appointments. Such acts are "as valid and of as full force and effect as if such oath had been duly taken and filed." Public Officer's Law § 15; See also County of Ontario v. W. Finger Lakes Solid Waste Mgmt., 167 AD2d 848, 849, 561 N.Y.S2d 954, 955 (4th Dep't 1990), lv. den. 77 NY2d 805, 568 NYS2d 913 (1991)(under de facto officer doctrine, acts carried out by public officer under color of authority are generally valid notwithstanding irregularities in manner in which officer was appointed; "[t]he de facto officer doctrine is founded upon reasons of policy and necessity; it protects the interests and reasonable expectations of the public, which must rely on the presumptively valid acts of public officials"). [*8]

Finally, Respondent City of Peekskill argues that the petition fails to state a cause of action against it because the City is not authorized to appoint members or commissioners to the Housing Authority, it did not purport to remove Petitioner as a member of the Housing Authority, and can neither appoint nor reinstate Petitioner to her term of office. This Court agrees that the City of Peekskill is not a proper party to this action and is dismissed from this proceeding.

Accordingly, the petition for Article 78 relief is denied, and it is:

ADJUDGED and ORDERED that the petition and cross-motion for discovery are denied, and Respondent's cross-motion to dismiss is granted. The proceeding is dismissed in its entirety.

The foregoing constitutes the Decision, Order and Judgement of the Court.

Date: White Plains, New York

May 4, 2009



James W. Hubert

Acting Supreme Court Justice

Jonathan Lovett, Esq.

Law Office of Jonathan Lovett, Esq.

222 Bloomingdale Road

White Plains, NY 10605

Joseph Stargiotti, Esq.

Deputy Corporation Counsel

City of Peekskill

840 Main Street

Peekskill, NY 10566

Attorney for Respondents

NCAS

Brown v. Foster

May 4, 2009

Sha-kee D. Williams

Secretary to Hon. James W. Hubert

Westchester County and Supreme Courts

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, NY 10601

Tel: (914) 824-5790

Fax: (914 955-8653

>>> State Reporter 10/21/2010 10:41 AM >>>

Dear Sha-Kee Williams,

Please verify if the date is May 4, 2008 or May 4, 2009.

Sincerely,

State Reporter's Office Footnotes

Footnote 1: Specifically, Section 3 provides that the term "authority... means a public corporation which is a corporate governmental agency (except a county or municipal corporation) organized pursuant to law to accomplish any or all of the purposes specified in article eighteen of the constitution and includes the following municipal housing authorities established prior to the first day of January, nineteen thirty-nine pursuant to chapter four of the laws of 1939 and amendments thereof, namely ... Peekskill housing authority [...].

Footnote 2: It is alleged that no certificate of appointment has ever been filed in the past. It is unclear why this was not done if indeed that is the case.

Footnote 3: Section 14-3 of the Peekskill City Charter, entitled "Terms of Office," provides that "[n]otwithstanding any other provision of the City Code of the City of Peekskill, and except as otherwise required by the laws of the State of New York or the Charter of the City of Peekskill, the term of office of any member of a board established by the City of Peekskill shall be three years as determined from the date of appointment; provided, however, that this provision shall not apply to ... any other board for which the terms of office of its members are fixed by the laws of the State of New York or by the City Charter." Since the Housing Authority is bound by the provisions of the state Public Housing Law, it would appear that its members serve five-year terms. See, e.g., Staniszewski v. Lackawanna Mun. Hous. Auth., 191 AD2d 1048, 595 NYS2d 160 (4th Dep't 1993)(ruling on validity of appointment to five-year term for Lackawanna Municipal Housing Authority); Informal Opinion of the State Attorney General dated March 10, 1992, 1992 NY Op. (Inf.) Att'y Gen. 19 (members of the Yonkers Municipal Housing Authority serve five-year terms under Public Housing law § 3(2). Respondents argue that Section 30(2) applies, but fail to explain the basis for three-year terms. However, this Court need not determine this issue under the present application and expressly declines to rule on the issue.

Footnote 4: Petitioner's argument that Section 30(2) does not apply to the Housing Authority because it is not "an authority hereafter established by a special act of the legislature," as set forth in Section 30(1), but rather was created prior to the enactment of the statute, is not persuasive. Petitioner similarly argues that under Public Housing Law, the certification filing requirement does not apply to all municipal housing authorities, but only to those created by special state law enacted subsequent to the enactment of Chapter 808 of the Law of 1939. The Court does not interpret Section 30(2) to apply only to housing authorities established after the enactment of the statute by a special act of the legislature. It is not a subdivision of Section 30(1) but rather a separate subdivision, and the term "authority," as used in that subdivision is defined by the statute to include the Peekskill Housing Authority. The parties suggest that the Housing Authority was created by or subject to a special act of the legislature. Thus, subdivision (2) applies to the Peekskill Housing Authority. L. 1934 Ch. 4. also provided for five-year terms and provided that the mayor shall file a certificate of appointment or re-appointment of any member.

Footnote 5: Petitioner, or a person similarly situated, is not without legal redress. A timely petition pursuant to Article 78 seeking mandamus to compel would be available, though clearly not interposed in this case.