Port Chester Police v. Vil. Port Chester

• Decision Date: 04 February 2002
• Docket Number: 2,00-10896
• Parties: Port Chester Police Association, Inc., et al., respondents, v Village of Port Chester, et al., appellants. 2000-10896 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted -
• Court: New York Supreme Court — Appellate Division

Port Chester Police Association, Inc., et al., respondents v Village of Port Chester, et al., appellants

2000-10896

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Submitted - January 10, 2002

Decided on February 4, 2002

Anthony M. Cerreto, Port Chester, N.Y., for appellants.

Bunyan & Baumgartner, LLP, Blauvelt, N.Y. (Joseph P. Baumgartner of counsel), for respondents.

DECISION & ORDER

ANITA R. FLORIO, J.P.

NANCY E. SMITH

LEO F. McGINITY

STEPHEN G. CRANE, JJ.

In an action, inter alia, for a judgment declaring that certain disciplinary charges brought against the plaintiff Peter Cammarota were time-barred pursuant to McKinney's Unconsolidated Laws of NY § 5711-q(9), the defendants appeal from an order of the Supreme Court, Westchester County (Cowhey, J.), entered October 23, 2000, which granted the plaintiffs' motion for summary judgment and denied their cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment.

A local government's "authority * * * to supersede" a State statute with inconsistent local legislation "can be exercised only upon substantial adherence to the procedures set forth in Municipal Home Rule Law § 22(1)" (Kamhi v Town of Yorktown, 74 N.Y.2d 423, 434). However, a reading of the entire text of the local legislation, on which the defendants rely in support of their position that the disciplinary charges were timely brought, reveals that it is impossible to determine with reasonable certainty whether any portion of McKinney's Unconsolidated Laws of NY § 5711-q was intended to be superseded (compare, Turnpike Woods v Town of Stony Point, 70 N.Y.2d 735, 738, with Henderson Taxpayers Assn. v Town of Henderson, 283 A.D.2d 940). Therefore, supersession cannot be found (see, ILC Data Device Corp. v County of Suffolk, 182 A.D.2d 293, 299). Accordingly, the Supreme Court correctly determined that the Statute of Limitations in the Civil Service Law, to which the local legislation referred, did not govern, and that the charges were brought in an untimely manner.

Since this is a declaratory judgment action, the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment (see, Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

The defendants' remaining...