In the Matter of Specht v. Town of Cornwall, New York

• Decision Date: 06 December 2004
• Docket Number: 2003-10326.
• Citation: 786 N.Y.S.2d 546,13 A.D.3d 380,2004 NY Slip Op 09080
• Parties: In the Matter of GWEN SPECHT, Respondent, v. TOWN OF CORNWALL, NEW YORK, Appellant.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 380

786 N.Y.S.2d 546

2004 NY Slip Op 09080

In the Matter of GWEN SPECHT, Respondent, v.TOWN OF CORNWALL, NEW YORK, Appellant.

2003-10326.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 6, 2004.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Cornwall, New York, dated November 15, 2002, terminating the petitioner's employment as dispatcher for the Town of Cornwall Police Department, the appeal is from an order of the Supreme Court, Orange County (Owen, J.), dated October 8, 2003, which, inter alia, granted the petition.

Ordered that on the Court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with costs, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.

The order of the Supreme Court directed the parties to settle a judgment calculating the petitioner's back pay.This order is nonfinal and is appealable only by permission (seeMatter of Coppola v Good Samaritan Hosp. Med. Ctr.,296 AD2d 460[2002]).Nevertheless, we grant leave to appeal in order to reach the merits (seeMatter of Ford v Zoning Bd. of Appeals of City of Long Beach,7 AD3d 797[2004]).

The petitioner, a probationary employee of the appellantTown of Cornwall, New York (hereinafter the Town), was terminated from her employment as a police dispatcher for the Town Police Department due to poor performance.Acting upon the request of the Chief of Police, the Town Board, in executive session (seePublic Officers Law § 105 [1][f]), unanimously voted to terminate the petitioner's employment.The Town Board failed, however, to record its determination in the minutes of the executive session in violation of the Open Meetings Law (seePublic Officers Law § 106 [2]).The Supreme Court determined that this statutory violation required annulment of the Town Board's determination.We disagree.

Pursuant to Public Officers Law § 107 (1), the Supreme Court possessed the discretion, upon good cause shown, to annul the Town Board's determination terminating the petitioner's employment as a result of the Town Board's violation of the Open Meetings Law.However, where there has been a nonprejudicial, technical violation of the Open Meetings Law in connection with the termination of the employment of a probationary employee,...