DeFalco v. Doetsch
| Decision Date | 20 October 1994 |
| Citation | 208 A.D.2d 1047,617 N.Y.S.2d 415 |
| Parties | In the Matter of Joseph DeFALCO, Petitioner, v. Gerald DOETSCH et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Levine & Dembia (Michael L. Levine, of counsel), New York City, for petitioner.
Michael S. McGrady, Hankins, for respondents.
Before CREW, J.P., and CASEY, YESAWICH and PETERS, JJ.
Proceeding initiated in this court pursuant to Public Officers Law § 36 to, inter alia, remove respondents from public office in the Town of Delaware, Sullivan County.
Petitioner, a property owner in the Town of Delaware, Sullivan County, brought this proceeding in November 1992 seeking to have respondents removed from their respective Town offices. At that time, respondent Donald Meckle was a Town Tax Assessor and respondent Richard Ferber was Chair of the Tax Assessors; respondents Gerald Doetsch, William Diehl, Michael Henke, and Carl Rosenberger were members of the Town Board. Diehl had also served as an Assessor for a number of years prior to being elected to serve on the Town Board commencing in 1992. Petitioner alleges that respondents committed serious improprieties and acts of misconduct in connection with a revaluation and reassessment of all property in the Town, undertaken in late 1990 and 1991, and in the ensuing process of resolving the disputes of taxpayers who believed themselves aggrieved as a result of the reassessments. Respondents are also accused of misdeeds stemming from attempts to cover up their previous transgressions and to interfere with a Federal investigation of the matter.
After a lengthy hearing, the Referee submitted to this court a comprehensive and carefully detailed report containing specific factual findings. Petitioner now moves for confirmation of the report and an order removing respondents from office pursuant to Public Officers Law § 36. Respondents oppose the motion, urging that many of the Referee's findings are contradicted by the evidence, and that the remainder constitute insufficient grounds for removal. They have also cross-moved for dismissal of the proceeding, as moot, insofar as it is directed at Henke and Rosenberger, who no longer hold public office, and for disaffirmance of certain of the Referee's findings that pertain to matters of defamation.
Petitioner suggests that it would be injudicious to dismiss the proceeding against Henke and Rosenberger, and asks this court instead to make findings of misconduct which could then be raised against these respondents should they seek reelection. To do so would improperly add aspects of punishment to this proceeding (see, Matter of Newman v. Strobel, 236 App.Div. 371, 373, 259 N.Y.S. 402) and would represent nothing more than a pointless exercise, for such findings are not a bar to reelection (see, 1979 Opns.St.Comp. No. 79-588, at 112). The proceeding is therefore dismissed, as moot, insofar as it seeks removal of Meckle, 1 Henke and Rosenberger (see also, Matter of Becher v. Case, 243 App.Div. 728, 277 N.Y.S. 735).
As for Doetsch, Diehl and Ferber, after weighing the testimony and other evidence presented at the hearing, we find that petitioner has established a pattern of intentional and reckless wrongdoing, breach of trust and abuse of authority sufficient to warrant the relief requested in the petition (see, e.g., Matter of Swope v. Kean, 71 A.D.2d 972, 419 N.Y.S.2d 792; cf., Matter of Deats v. Carpenter, 61 A.D.2d 320, 322, 403 N.Y.S.2d 128). At the outset, it bears noting that the testimony discloses several instances where directly contradictory assertions made it necessary to credit one witness's testimony over that of another. As to those, we adopt, as our own, the Referee's finding that Doetsch, Diehl and Ferber, who obviously had the most at stake in this proceeding and were often evasive or contradicted their own previous testimony, were less credible than the other witnesses.
With this in mind, it is clear that Doetsch, Diehl and Ferber improperly attempted to, and did in fact, influence the Town Board of Assessment Review to alter certain decisions it had made, after considering the owners' grievances, with respect to properties in petitioner's development. We also find that the testimony and exhibits, taken together, demonstrate that Ferber made at least some of the "red ink" changes to the tentative assessment roll after May 1, 1991, without following the procedure set forth in RPTL 552 (), despite having been informed that it was improper to do so.
Beyond that, we find that Ferber...
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Pflaum v. Town of Stuyvesant
...misconduct, maladministration, malfeasance or malversation in office.” N.Y. Pub. Off. LawW. § 36. See also DeFalco v. Doetsch, 617 N.Y.S.2d 415, 208 A.D.2d 1047 (N.Y.App.Div.1994). Accordingly, Plaintiff does not state a cognizable claim that may be heard by this Court. For these reasons, C......
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...Yonkers, 304 N.Y. 436, 440, 108 N.E.2d 371 [1952] [internal quotation marks and citation omitted]; accord Matter of DeFalco v. Doetsch, 208 A.D.2d 1047, 1050, 617 N.Y.S.2d 415 [1994] ) and, upon our independent review, we find that removal is warranted. The first of the allegations referenc......
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...future, we note that findings against an official in a removal proceeding are not a bar to reelection (see Matter of DeFalco v. Doetsch, 208 A.D.2d 1047, 1048, 617 N.Y.S.2d 415 [1994] ; compare N.Y. Const., art. VI § 22 [h] [“A judge or justice removed by the [C]ourt of [A]ppeals shall be i......
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