Andrews v. Nagourney

• Citation: 342 N.Y.S.2d 79,41 A.D.2d 778
• Parties: In the Matter of Robert L. ANDREWS, Appellant, v. James I. NAGOURNEY, City Manager of the City of Long Beach, et al., Respondents.
• Decision Date: 29 March 1973
• Court: New York Supreme Court Appellate Division

Page 79

342 N.Y.S.2d 79

41 A.D.2d 778

In the Matter of Robert L. ANDREWS, Appellant,

v.

James I. NAGOURNEY, City Manager of the City of Long Beach,

et al., Respondents.

Supreme Court, Appellate Division, Second Department.

March 29, 1973.

Before HOPKINS, Acting P.J., and LATHAM, GULOTTA, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR (1) to declare the nullity of the acts of the respondent City Council of the City of Long Beach in approving a special election of April 3, 1973 on its proposed City Charter; (2) to enjoin said City Council and the respondent City Manager, City Clerk and Nassau County Board of Elections from acting with respect to said election on said proposed charter; (3) to enjoin said City Council from making any further expenditures in connection with said special election; and (4) to direct said City Council to submit to the voters of the City of Long Beach at the next general election a different proposed charter, one prepared by the Charter Revision Commission of the City of Long Beach, petitioner appeals from a judgment of the Supreme Court, Nassau County, entered March 23, 1973, which (1) dismissed the petition on the ground petitioner is not a party aggrieved and may not maintain the proceeding and (2) directed that the special election to be held on April 3, 1973 may proceed and be conducted by the respective respondents.

Judgment reversed, on the law, without costs, and petition granted to the extent that respondents are prohibited from holding the special election scheduled for April 3, 1973 in its entirety.

The threshold question presented on this appeal concerns standing to sue. We are of the view that the dismissal of the petition by Special Term on the stated ground that petitioner is not a 'party aggrieved' was improper. In addition to bring a citizen and taxpayer of the City of Long Beach, petitioner is, as will be seen, a member of a valid charter revision commission still in existence. In this matter of significant municipal concern to the citizens of Long Beach, involving the actions of municipal officials and only tangentially related to fiscal matters, petitioner has standing to bring this article 78 proceeding even though he does not show a personal grievance or a personal interest in the outcome (Matter of Policemen's Benevolent Ass'n of Westchester County v. Board of Trustees of Vil. of Croton-on-Hudson, 21 A.D.2d 693, 250 N.Y.S.2d 523; see, also, Matter of Bon-Air Estates v. Building Inspector of Town of Ramapo, 31 A.D.2d 502, 504, 298 N.Y.S.2d 763, 766; Matter of Werfel v. Fitzgerald, 23 A.D.2d 306, 313, 260 N.Y.S.2d 791, 798; Semple v. Miller, 38 A.D.2d 174, 175, 327 N.Y.S.2d 929, 931; Matter of Marino v. Town of Ramapo, 68 Misc.2d 44, 47, 326 N.Y.S.2d 162, 170).

Subdivision 2 of section 36 of the Municipal Home Rule Law (section 36 hereinafter referred to as 'the statute') provides, Inter alia, for the creation of a charter revision commission by the legislative body of any city (in the instant case, the respondent City Council) by means of the adoption of a local law. Subdivision 4 of the statute sets forth an alternative method for the establishment of such a commission, that is, by 'the mayor of any city.' Certain specific requirements relating to the method of appointment or election of commission members are provided in each subdivision of the statute.

By a resolution dated February 1, 1972, the respondent City Council purported to establish a charter revision commission pursuant to subdivision 4 of the statute. This it could not do for several reasons. First, the City Council has no power to establish such a commission pursuant to subdivision 4. Secondly, the detailed procedure set forth in subdivision 2 for City Council establishment of a charter revision commission was not followed. Thirdly, subdivision 2 requires that City Council establishment of a charter revision commission be by means of the adoption of a local law, not merely a resolution. It follows that the February 1, 1972 resolution of the City Council did not validly create a charter revision commission.

Purportedly acting pursuant to the authority granted him by the resolution, the City Manager of Long Beach (the present charter of Long Beach makes no provision for a 'mayor') appointed 11 citizens of that city to the Charter Revision Commission of Long Beach by letters dated February 28, 1972. Judicial notice is hereby taken of the fact that the City Manager filed a memorandum of appointment, dated March 2, 1972, with the city clerk, which memorandum satisfied the requirements of Municipal Home Rule Law (§ 36, subd. 4). The present Long Beach City Charter, as noted, makes no provision for a 'mayor', but does state, in pertinent part of subdivision 1 of section 20 thereof, as follows:

'The city manager shall be the chief executive officer of the city. Though his official title shall be city manager and that (sic) mayor, He shall be the mayor of the city and shall have and exercise all powers conferred upon the mayor by this act or By the general statutes of the state not inconsistent with this act' (emphasis supplied).

(In our view, the mistaken word ...