Fossella v. Dinkins
| Decision Date | 02 October 1985 |
| Citation | 114 A.D.2d 340,493 N.Y.S.2d 859 |
| Parties | In the Matter of Frank V. FOSSELLA, et al., Petitioners-Respondents-Appellants, v. David DINKINS, et al., Respondents-Appellants; Campaign for a Nuclear Navyport Referendum, et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Anne E. Simon, New York City (Franklin Siegel of counsel), for appellants-respondents DeLuca, Henkel and Mobilization for the Survival of New York, Inc.
Jerry H. Goldfeder, New York City, for appellant-respondent Campaign for a Nuclear Navyport Referendum.
Robert Allan Muir, Jr., Staten Island, for petitioners-respondents-appellants.
Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner, Jeffrey Friedlander, Judith A. Levitt, Thomas C. Crane, Steven H. Mosenson and Stephen Louis, of counsel), for respondents-appellants.
John J. Marchi, pro se; David Jaffe and Kathryn K. Rooney, Staten Island, for John J. Marchi amicus curiae.
Before MANGANO, J.P., and GIBBONS, THOMPSON, BROWN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to Municipal Home Rule Law § 37(5) to invalidate a petition filed with the City Clerk for a referendum on a proposed local law to amend the City Charter, the intervenors appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Richmond County, dated September 6, 1985, 493 N.Y.S.2d 947 which, inter alia, denied their motion to dismiss the proceeding as untimely, and the petitioners and others cross-appeal, as limited by their briefs, from so much of the same order as ruled that the question of the constitutionality of the proposed local law was not ripe for judicial review.
Order affirmed, without costs or disbursements. The matter is remitted to the Supreme Court, Richmond County, with a direction that it be consolidated with a pending proceeding to invalidate a second petition. It is further directed that the matters be referred with all convenient speed to a referee to hear and report concerning the validity of each of the two petitions.
Order of this court dated September 19, 1985, vacated insofar as it imposed a stay of all proceedings.
Underlying these appeals is the effort by the intervenors (Campaign for a Nuclear Navyport Referendum, Thomas DeLuca, E. Thomas Henkel, and Mobilization for the Survival of New York, Inc.) to have the Board of Elections of the City of New York place a proposition for an amendment to the City Charter on the ballot to be voted on in the upcoming general election. This proposed amendment, in relevant part, would restrict the powers of the Board of Estimate to the extent that the board could not either "approve any * * * expenditure so as to facilitate the development of any military facility, any component of which is designed to carry or store nuclear weapons", or "[c]onsent to [the] use of any city owned property, or street, so as to facilitate the development of any [such] military facility".
In order to accomplish their purpose, the intervenors have sought to employ the procedures outlined in Municipal Home Rule Law § 37, which governs the adoption of City Charter amendments by voter initiative. In accordance with that statute, on July 2, 1983, intervenor Thomas DeLuca filed with the Office of the City Clerk a petition purportedly signed by 60,670 individuals. On July 22, 1985, the 20th day following the filing of the petition, the attorney for the petitioners delivered a proposed order to show cause, together with a supporting affidavit signed by petitioner Frank V. Fossella, to the law secretary of Rose McBrien, an Acting Justice of the Supreme Court, Richmond County. Mr. Fossella's affidavit contained objections to the petition filed with the City Clerk by Mr. DeLuca. Justice McBrien did not, however, sign the order to show cause until July 24, 1985. The City Clerk transmitted Mr. DeLuca's petition to the City Council, having certified by letter dated July 25, 1985, that it contained more than the 30,000 valid signatures necessary to have the proposal submitted for the council's approval (Municipal Home Rule Law § 37[2], [5] ). The City Council has not adopted the proposal as its own enactment.
By order to show cause dated July 31, 1985, the intervenors moved for leave to intervene in this proceeding to invalidate their petition proposing the charter amendment and, in addition, moved, inter alia, for an order dismissing the proceeding on the ground that it was not timely commenced. The various municipal parties herein supported that branch of the motion which was to intervene, took no position on that branch of the motion which was to dismiss, and urged the court to rule on a constitutional challenge which Mr. Fossella had raised in his proceeding to invalidate the petition. By order dated August 23, 1985, Justice McBrien granted that part of the motion which was to intervene, and directed that a hearing be held on the remaining issues.
Special Term, after the hearing ordered by Justice McBrien, held that the proceeding to invalidate the petition was timely commenced since Mr. Fossella's objections to the petition were received by Justice McBrien on July 22, 1985--the 20th day following the filing of the petition--thereby satisfying the requirements of Municipal Home Rule Law §§ 24 and 37(5). The court further ruled that the challen to the constitutionality of the proposed amendment was not ripe for judicial review. It referred the matter to a referee to hear and report concerning the validity of the signatures contained in the petition for the referendum. These appeals followed. We find that Special Term properly ruled on all the issues before it and, accordingly, we affirm the order under review.
The proponents of the proposed charter amendment argue that the proceeding to invalidate was required to have been commenced within 20 days of the date the petition was filed with the City Clerk and since Justice McBrien did not sign the order to show cause until July 24, they contend that the proceeding was not timely commenced pursuant to Municipal Home Rule Law § 24. The simple response to this argument is that Municipal Home Rule Law § 24(1)(a) does not require that a proceeding be commenced within 20 days, but, rather, requires only that an objection be filed with the Supreme Court, or a justice thereof, within such time. The statute states in relevant part:
"If within twenty days after the filing of such a petition a written objection thereto be filed...
To continue reading
Request your trial
-
U.S. Bank Nat'l Ass'n v. Nelson
... ... Indeed, the Court of Appeals reached this very conclusion in Matter of Fossella v. Dinkins , 66 N.Y.2d 162, 495 N.Y.S.2d 352, 485 N.E.2d 1017. That case involved a proceeding to have the Board of Elections of the City of New ... ...
- Fossella v. Dinkins
-
MacDonald v. Cnty. of Monroe
...A challenge to the local law became ripe for adjudication as soon as it was signed by the county executive. (See Fossella v. Dinkins, 114 A.D.2d 340 [2nd Dept. 1985].) Had there been a petition for a referendum (none was filed) the issue would still have been ripe for adjudication as soon a......
-
Sinawski v. Cuevas
...21 A.D.2d 968, 252 N.Y.S.2d 871; Matter of Fossella v. Dinkins, 128 Misc.2d 822, footnote 1 at 823, 493 N.Y.S.2d 947, affd. 114 A.D.2d 340, 493 N.Y.S.2d 859, affd. 66 N.Y.2d 162, 495 N.Y.S.2d 352, 485 N.E.2d 1017, but see, Matter of De Santis v. Brown, 37 A.D.2d 865, 325 N.Y.S.2d 60). In ad......