Thomas v Wallace

[*1] Thomas v Wallace 2016 NY Slip Op 51898(U) Decided on July 7, 2016 Supreme Court, Westchester County Neary, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2016
Supreme Court, Westchester County

Richard Thomas, as Mayor of the City of Mount Vernon, Petitioner,

against

Andre Wallace, Individually and in His Capacity as a City Council Member for the City of Mount Vernon; MARCUS A. GRIFFITH, ROBERTA L. APUZZO, LISA A COPELAND, and J. YUHANNA EDWARDS, In Their Capacity as Members of the City Council of the City of Mount Vernon; GEORGE W. BROWN, as City Clerk of the City of Mount Vernon; MAUREEN WALKER, In Her Capacity as Comptroller of the City of Mount Vernon; and CREATIVE DIRECTION CONSTRUCTION & DESIGN, LLC, Respondents.



001602/16



Jeffrey D. Buss, Esq.

Smith, Buss & Jacobs, LLP

Attorneys for Petitioner

733 Yonkers Avenue

Yonkers, New York 10704

914 476-0614

Steven M. Silverberg, Esq.

Silverberg Zalantis LLP

Attorneys for Respondents Wallace,

Griffith, Apuzzo, Copeland, Edwards,

Brown and Walker

220 White Plains Road, 5th Floor Tarrytown, New York 10591

914 682-0708

Henry C. Chan, Esq.

Wilson & Chan, LLP

Attorneys for Respondent

Creative Direction Construction & Design, LLC

733 Third Avenue, 16th Floor

New York, New York 10017

646 253-1258
Robert A. Neary, J.

The Petitioner seeks an order, in the nature of a writ of prohibition, pursuant to CPLR 78803(2), as well declaratory relief:

(i) precluding Respondents Griffith, Wallace, Walker, Brown, Apuzzo, Copeland and Edwards, constituting all the members of the Mount Vernon City Council, the City Clerk, and the City Comptroller, from proceeding without, or in excess of their jurisdiction; and,(ii) temporarily and permanently enjoining Respondents Griffith, Wallace, Walker, Brown, Apuzzo, Copeland and Edwards from acting or purporting to terminate the employment of various municipal employees, including without limitation, the Police Commissioner, the Deputy Police Commissioner, the Deputy Fire Commissioner, the Commissioner of Public Works, the Corporation Counsel, various Assistant Corporation Counsel and others; or from interfering with the performance of work by municipal employees; or from refusing to pay employees for work performed; and(iii) enjoining Respondents Griffith, Wallace, Apuzzo, Copeland and Edwards from purporting to conduct official business as the Mount Vernon City Council without calling a public meeting, without a quorum present, and without taking and recording a vote; and(iv) enjoining Respondents Griffith and Walker from issuing and signing checks without the Mayor's countersignature in violation of Sections 65 and 61 of the Mount Vernon City Charter; and(v) for a Declaratory Judgment setting forth the respective roles and powers of the Mayor, the City Council, the City Clerk and the City Comptroller of the City of Mount Vernon; and(vi) for a Declaratory Judgment that Respondent City Councilman Andre Wallace has an impermissible conflict of interest in violation of General Municipal Law Section 801 and Article 19 of the Mount Vernon City Charter, arising from the fact that he is the managing member and CEO of an entity, Creative Direction Construction and Design, LLC, which filed a lawsuit against the City of Mount Vernon on February 25, 2016 entitled Creative Direction Construction & Design, LLC v. City of Mount Vernon, Index No. 052337/2016; that he signed and filed a Notice of Claim against the City of Mount Vernon; and that he presently seeks a legislative ordinance from the City Council on [*2]which he sits, authorizing the City of Mount Vernon to extend, modify and pay an expired construction contract in which he holds a pecuniary interest; and(vii) for a Declaratory Judgment that the March 24, 2014 Contract, and the purported Change Order to said Contract dated February 8, 2016, are null and void and unenforceable under General Municipal Law Section 801 and Article 19 of the City Charter of the City of Mount Vernon; and(viii) for an order directing Respondent Creative Direction Construction & Design, LLC and individual Respondent Andre Wallace to turn over, within ten (10) days of personal service of this Order upon them, all payroll and employment records necessary to audit and confirm that prevailing wages were paid, and labor was actually supplied between March 25, 2014 and the present, for work allegedly performed by Respondent Creative Direction Construction & Design, LLC, under a municipal contract with the City of Mount Vernon for the construction of an Emergency Operations Center at the Third Street Firehouse in the City of Mount Vernon.

The Respondents, Andre Wallace, Marcus A. Griffith, Roberta L. Apuzzo, Lisa A. Copeland, J. Yuhanna Edwards, George W. Brown and Maureen Walker, oppose the Petition and have submitted a Verified Answer with Count Claims requesting that the Court:

(a) dismiss the Petition in its entirety;(b) as for the City Respondents' first counterclaim, that the Court issue an order and judgment, in accordance with Article 78 of the CPLR, determining and directing that the Petitioner, as Mayor of the City of Mount Vernon, carry out his duties as specified by the Charter to only appoint a lawful resident of the City of Mount Vernon to the following appointed positions:i. Corporation Counsel and Assistant Corporation Counselii. Commissioner of Public Safety and Deputy Commissioners of Public Safetyiii. Fire Commissioner and Deputy Fire Commissionersiv. Commissioner of Public Works and Deputy Commissioners of Public Worksv. Commissioner of Human Resources and Deputy Commissioners of Human Resourcesvi. Commissioner of Recreation and Deputy Commissioners of Recreationvii. Commissioner of Buildings and Deputy Commissioners of Buildingsviii. Commissioner of Planning and Community Development and Deputy Commissioners of Planning and Community Developmentix. Commissioner of Deedsx. Commissioner of Assessment and Taxationxi. Commissioner of Management Servicesxii. Inspector Generalxiii. Director of the Office of the Aging.(c) as for the City Respondents' second counterclaim, that the Court issue an order and judgment, in accordance with Article 78 of the CPLR, directing that the Petitioner, as Mayor of the City of Mount Vernon, carry out his duties as specified by the City Charter and within thirty (30) days of entry of such order and judgment Petitioner remove from office any of the appointed officers this Court determined must be residents of the City of Mount Vernon who fail to present sufficient evidence to establish they are residents of the [*3]City of Mount Vernon;(d) as for the City Respondents' third counterclaim, that the Court issue an order and judgment, in accordance with Article 78 of the CPLR, directing the Mayor to take no action and reverse any actions already taken to combine the Fire Department into the Department of Public Safety unless and until the proper legislation is duly adopted amending to Charter to combine the departments;(e) As for the City Respondents' fourth counterclaim, that the Court issue an order and judgment, in accordance with Article 78 f the CPLR, directing the Petitioner, as Mayor of the City of Mount Vernon, to advise the City Clerk when he will be absent from Westchester County overnight and that under such circumstances the President of the City Council, or in the event of the President's absence as well, the appropriate member of the City Council, shall act as mayor in the Mayor's absence;(f) As for the City Respondents' fifth counterclaim, that the Court issue an order and judgment, in accordance with Article 78 of the CPLR, directing that the Mayor sign all checks submitted to him within seven (7) days of presentation by the Comptroller or two (2) days before it is due, whichever is sooner, unless he provides the Comptroller with a written memorandum, within the same time period, setting forth why the particular charge is not a valid expense of the City, and whether the Mayor believes he can make a better deal for the City should not be considered a reason for an expense not being valid;(g) as for the City Respondents' sixth counterclaim, that the Court issue an order and judgment, in accordance with Article 78 of the CPLR, directing the Mayor countersign all checks payable to Silverberg Zalantis LLP approved by the Council President and Comptroller within seven (7) days of presentation of such checks for payment; and(h) as for the City Respondents' seventh counterclaim, that the Court issue an order and judgment pursuant to Article 78 of the CPLR prohibiting the Mayor from countersigning any check for payment to Smith, Buss and Jacobs, LLC for work performed in commencing and prosecuting this action.

Respondent Creative Direction Construction & Design, LLC has also filed an Answer to the Verified Petition asking the Court to dismiss the Petition in its entirety.

The Court has reviewed the following papers submitted by the parties:

Petitioner's Order to Show Cause with Verified Petition and Supporting Affidavit with exhibits and Memorandum of Law

Respondent Creative Direction Construction & Design, LLC's Affirmation in Opposition to Order to Show Cause with exhibits

Respondents Wallace, Griffith, Apuzzo, Copeland, Edwards, Brown & Walkers' Affirmation in Opposition of Steven M. Silverberg with exhibits, Verified Answer with Objections in Point of Law, Affirmative Defenses and Counterclaims with exhibits, Memorandum of Law in Opposition to Petition and in Support of Counterclaims and Affidavit of Marcus A. Griffith

Respondent Creative Direction Construction & Design, LLC's Answer to Verified Petition and Affidavit of Andre Wallace with exhibits

Petitioner's Reply Affidavit and Verified Reply and Amended Verified Reply of Richard Thomas and Reply Affidavit of Lawrence A. Porcari, Esq.

The papers submitted by the parties in this matter reflect an unfortunate breakdown in the normal and necessary interaction between the executive and legislative branches of government in the City of Mount Vernon. The type of interaction which is essential for the proper and effective operation of city government is clearly lacking here. The Court is being asked, in several instances, to assign blame and to direct procedures which should properly be managed by the parties themselves. Several forms of relief sought by the parties are beyond the power of the Court to grant. The issues are either specifically and unambiguously outlined in the City Charter or left to the discretion of the respective parties. As a general rule, the management and operation of municipal government, which require decisions regarding the quality and quantity of municipal services, should not be preempted by the judiciary but left in control of duly elected officials. [See Klostermann v. Cuomo, 61 NY2d 525].

The Petitioner seeks relief pursuant to CPLR 7803(2) which codifies the common law Writ of Prohibition. Prohibition is considered an extraordinary remedy which seeks to prevent or control a body or officer in excess of its jurisdiction. [See Matter of Huntington v. New York State Div. of Human Rights, 82 NY2d 883]. Prohibition lies only when the petitioner has established a clear legal right to such relief. [See Matter of Molea v. Marasco, 64 NY2d 718]. To meet the requirements for a Writ of Prohibition, a petitioner has the burden of demonstrating that the body or officer if proceeding or threatening to proceed in excess of its jurisdiction, that petitioner has a clear legal right to the relief requested and that the body or officer is acting in a judicial or quasi-judicial capacity. [See Matter of Garner v. New York State Dept. of Correctional Services, 10 NY3d 358].

In the present case, the Respondents were not acting in a judicial or quasi-judicial capacity when engaging in the conduct complained of in the Petition and the Court cannot, therefore, issue a Writ of Prohibition. The Petition seeking an order, pursuant to CPLR 7803(2) as requested in Petitioner's Points i., ii., iii., and iv. in the Petition, must, therefore, be denied.

The Petitioner also seeks relief in the form of a declaratory judgment. CPLR 3001 provides that the "supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy. . . ."

A declaratory judgment action "contemplates a judgment that will merely declare the rights of the parties in respect of the matter in controversy . . . [where] a mere judicial declaration of the rights vis-avis the other side will do the job." [See Siegel, NY Prac. §436 at 705-706 (3rd Ed., 1999)]. The Court must be presented with an actual controversy and the declaratory judgment action may not be used to secure an advisory opinion. "A declaratory judgment may not be granted if it will only result in an advisory opinion." [See Combustion Eng'g v. Travelers Indem. Co., 75 AD2d 777, 778 (1st Dept., 1980), aff'd 53 NY2d 875 (1981)]. "Courts are not empowered to give advisory opinions, but must deal with particular instances when they arise." [See Matter of Christopher v. City of Buffalo, 88 AD2d 777 (4th Dept., 1982)].

The concept of justiciability, meaning appropriate for judicial resolution or within the authority of judiciary to review, is a concept that defies clear definition. Justiciability is a word of art which recognizes that in a tripartite system of government, certain issues are best determined by the political branches of government, the executive and their legislative, and not by the judicial branch. [See Matter of New York State Inspection, Sec. & Law Enforcement Employees v. Cuomo, 64 NY2d 233; Jones v. Beame, 45 NY2d 402; Bowen v. State Bd. of Social [*4]Welfare, 45 NY2d 402; Matter of Abrams v. New York City Tr. Auth., 39 NY2d 990]. Restraint by the judiciary is particularly important when the issues involve matters of policy, the exercise of discretion, questions of judgment and allocation of resources. [See Matter of Richmond Hill Block Assoc. v. Dinkins 149 Misc 2d 654].

By stating that the Supreme Court "may render a declaratory judgment," the drafters of CPLR §3001 emphasized the discretionary nature of the remedy of Declaratory Judgment. [See Morgenthau v. Erlbaum, 59 NY2d 143]. If the issuance of a declaration of rights in a particular case will serve the interests of convenience of the parties or the public, if there is a public interest involved, or if the court is satisfied that a grant of a declaratory judgment will serve some useful function, then the court should exercise its discretion and render declarations that detail and define interests and rights.

In the present case, the Petitioner seeks "a declaratory judgment setting forth the respective roles and power of the Mayor, the City Council, the City Clerk and the City Comptroller of the City of Mount Vernon." The Court finds that the roles of the parties are clearly and unambiguously set forth in the City Charter and provide all the guidance any reasonable person should require. The Court, therefore, declines to render a declaratory judgment as sought by the Petitioner.

With respect to the Petitioner's claim regarding Respondent Andre Wallace having an impermissible conflict of interest in violation of General Municipal Law Section 801 and Article 19 of the Mount Vernon City Charter, the Court finds that the papers submitted fail to establish that an impermissible conflict of interest exists. Respondent Wallace in his connection with Creative Direction Construction & Design, LLC as CEO has a claim against the City of Mount Vernon for payment due on a contract entered into in 2014, before Mr. Wallace was elected to the City Council. Mr. Wallace's interest in the contract has been fully disclosed and he has taken no part in any process by the City in connection with the contract. The Petitioner's application as set forth in Points vi., vii., and viii. for the Court to declare that an impermissible conflict of interest exists, that the contract is null and void and unenforceable and directing Respondent Creative Direction Construction & Design, LLC and Respondent Andre Wallace to provide payroll and other documents is denied.

The Petition is granted with respect to Points iv to the extent that Respondents are directed not to issue and sign city checks without the Mayor's countersignature as required by the City Charter. The Court grants this portion of the Petition because Respondent Griffith and Walker readily have admitted that, under certain circumstances, the City had issued checks without the Mayor's signature. The admission in Respondents' Verified Answer that "Griffith signed a limited number of checks when the Mayor absented himself from and/or failed to carry out his duties to countersign checks . . ." is a clear violation of the City Charter and cannot be sanctioned by the Court. The Charter does not provide authority for any city official to independently assume the official duties of the Mayor based upon their subjective belief that he has "failed to carry out his duties to countersign checks." The Respondents attempt to justify this improper conduct by stating that the Mayor has "effectively absented himself from carrying out his duties" reflects an improper attempt to usurp the Mayor's authority and cannot be justified by any reasonable reading of the City Charter. The Petitioner's letter to Comptroller Walker stating the times that he would like to receive checks for review cannot by any means justify the [*5]statement that he is unavailable at all other times of the month. The procedure endorsed and adopted by the Respondents is a blatant violation of the City Charter. Accordingly, the Respondents are directed to cease this practice forthwith.

The Respondents have filed seven (7) counterclaims all citing CPLR Article 78 generally as authority for the relief sought. The Court finds that CPLR Article 78 does not provide authority for this Court to grant the relief sought. The Respondents' first and second counterclaims seeking an order and judgment determining and directing the Petitioner to carry out his duties as specified in the City Charter calls for an advisory opinion by the Court and is not a proper subject for a CPLR Article 78 proceeding.

The third counterclaim seeks an order directing the Mayor to take no action in combining the Departments of Public Safety and Fire unless and until proper legislation is adopted. The Court finds that the Respondents have failed to demonstrate that the Petitioner has violated any provisions of the City Charter by proceeding in the manner described in the papers. It is clear that the Mayor acknowledges the City Council's authority and has sought their approval in his plan to merge the two departments. The Respondents' claim is denied as speculative.

The fourth and fifth counterclaims seek an order directing the Mayor to advise the City Clerk when he will be absent from the County and to direct the Mayor to sign all checks presented to him within seven (7) days seeks an unwarranted intrusion into the operation of the city government. These counterclaims are denied as they seek an advisory opinion of the Court.

The sixth and seventh counterclaims seek an order directing the Mayor countersign all checks payable to Silverberg Zalantis LLP which have been approved by the City Council President and Comptroller and to prohibit him from countersigning any check that the Comptroller might issue for payment to Smith, Buss and Jacobs, LLC, in the "unlikely" events she did. These counterclaims similarly seek an advisory opinion based upon speculation about events which have not yet occurred, and are accordingly denied.

IT IS THEREFORE ORDERED, that the Petition is granted to the extent that Respondents Griffith and Walker are enjoined from issuing and signing City checks without the Mayor's countersignature as required by Sections 65 and 61 of the Mount Vernon City Charter; and

IT IS FURTHER ORDERED, that the remaining points in the Petition are denied; and

IT IS FURTHER ORDERED, that the Respondents' counterclaims are denied.

The foregoing constitutes the opinion, judgment, decision and order of the Court.

Dated: July 7, 2016

White Plains, New York

Robert A. Neary

ACTING SUPREME COURT JUSTICE