Opinion
Index No. 69278/2022
04-21-2023
Anne Marie MCARDLE, Carolyn Solieri, Michael Represa, Christine Anita Peters, Eric Adre Johnson, Frank E. Coleman, Jr., George McAnanama, Joan Gronowski, Joseph Pinion III, Kisha Skipper, Mark Parolisi and Ronald Matten, Plaintiffs/Petitioners, v. CITY OF YONKERS, Mayor Michael Spano, Mike Breen, John Rubbo, Tasha Diaz, Anthony Merante, Corazon Pineda Isaac, Shane Williams, Members, Yonkers City Council, Lakisha Collins-Bellamy, City Council President, Defendant/Respondents.
For the Petitioners: Michael H. Sussman, Esq., Sussman and Associates For the Respondents: Jared A. Kasschau, Esq., Adam M. Moss, Esq., Harris Beach PLLC
For the Petitioners: Michael H. Sussman, Esq., Sussman and Associates
For the Respondents: Jared A. Kasschau, Esq., Adam M. Moss, Esq., Harris Beach PLLC
George E. Fufidio, J. This is a proceeding commenced by the Petitioners, each a registered voter and resident of Yonkers, New York. It alleges that the City of Yonkers City Council's recent adoption of Local Law 10-2022, which extended the term limits of the office of the Mayor of the City of Yonkers and the term limits for each City Council office was unlawful. Though it is not entirely clear, it appears as though they are seeking, by way of their first and third causes of action declaratory judgments that Local Law 10-2022 is unlawful because it was passed by the City Council and signed into law by the Mayor, all of whom are people who stand to benefit from Local Law 10-2022 being enacted, thus being a violation of the ethical rules established by the City and also, that in order to enact such a law the City is required to hold a citywide referendum on such an enactment. Next, from what the Court is able to discern from their second cause of action, they have asked that the Court declare Local Law 10-2022 null and void pursuant to CPLR Article 7803(3) because the City failed to adhere to lawful procedure; that the enactment was affected by an error of law or that somehow it was arbitrarily and capriciously enacted. In response the Respondents have filed a motion to dismiss in which they argue that the Petitioners pleadings fail to state a cause of action ( CPLR 3211(a)(7) ), that the Petitioners lack standing ( CPLR 3211(a)(3) ) and objections in points of law (CPLR article 7804(f)), however, the entirety of the Motion to Dismiss is directed at the merits of the Petition. For the reasons articulated hereinafter the Respondent's motion to dismiss is denied.
It is well established that in order to prevail on a motion to dismiss for failing to state a cause of action pursuant to CPLR 3211(a)(7), the movant must demonstrate, against the Court's requirement to liberally construe the pleadings and to accept the allegations as true and to grant the Petitioner the benefit of every possible inference, that there is no discernible legal theory on which the Petition rests ( Sheila C. v. Povich , 11 A.D.3d 120, 781 N.Y.S.2d 342 [1st Dept. 2004] ). In other words, "the motion must be denied if from the pleadings’ four corners ‘factual allegations are discerned which taken together manifest any cause of action cognizable at law’ " ( Id. quoting 511 West 232nd Owners Corp. v. Jennifer Rlty. Co. , 98 N.Y.2d 144, 151-52, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002] ).
It is not very clear from a review of the Petition, what exactly the delineated causes of action are. Nevertheless, based on a review of the Petition in light of the standard that the Court is required to apply at this stage of the proceedings, the Court finds that the Petitioners have met the very minimum threshold of manifesting a cognizable cause of action for relief under CPLR Article 7803[3] and CPLR. Although the Respondents mouthed a CPLR 3211(a)(3), lack of standing, ground for dismissal, there was no further development of that ground as a basis for dismissal other than by way of footnote in their Memorandum of Law, and thus the Court will not reach it.
That being said, the Court does find that there is no real dispute over the material facts of this case and that the facts are sufficiently developed so as to allow it to decide the merits of the Petition before it on the submissions of the parties that have already been filed with the Court in consideration of the motion to dismiss and does not need a formal Answer from the Respondents in order for it to do so ( In the Matter of Nassau Boces Central Council of Teachers by Robert Dreaper on Behalf of Adult Education Instructors v. Board of Cooperative Educational Services of Nassau County , 63 N.Y.2d 100, 480 N.Y.S.2d 190, 469 N.E.2d 511 [1984] ).
The Court agrees with the Respondents that this case is, factually and legally, almost identical to the Molinari case ( Molinari v. Bloomberg (Molinari I) , 596 F. Supp. 2d 546 [E.D.N.Y. 2009] ; Molinari v. Bloomberg (Molinari II) , 564 F.3d 587 [2nd Cir. 2009] ) in which the Federal Eastern District and Second Circuit courts found that the increase in term limit for the New York City Mayor, City Councilmembers and other city officials was lawful. More specifically, using the same analysis as the Molinari court did, this Court does not find that the increase in term limits for the City of Yonkers Mayor and the Yonkers City Councilmembers violates the Yonkers City Charter section C1A-6 ethical standards. Section C1A-6 prohibits a city employee from using their official position in a manner that they either know or have reason to know may result in a financial benefit for themselves or enumerated others (Yonkers City Charter sec. C1A-6). Financial benefits are defined by the Yonkers City Charter as a pecuniary or material benefit that is not available to the general public (Yonkers City Charter sec. C1A-4(I)). Simply put, the term limit increase and the concomitant salary is not the kind of "financial benefit" contemplated by such rules. First, it is a benefit which is not guaranteed to Mayor or any of the Councilmembers. Each still needs to win their seat in a general election, which leads to the second point, that is the seat, salary and term limited office is potentially available to anyone who is eligible to run for office in the City of Yonkers. Third, the Yonkers City Charter authorizes the City Council to vote on, among other things, their own and the Mayor's salary increases without that being considered a "financial benefit". That they are able to do so is entirely consistent with the New York City Conflicts of Interest Board's (COIB) advisory opinion that was heavily relied upon in Molinari and which also cited to New York State case law, Golden v. New York City Council, 305 A.D.2d 598, 762 N.Y.S.2d 410 [2nd Dept. 2003] ). The COIB held that the New York City Council had the authority to enact laws regarding term limits. Critically, the COIB concluded, and the Molinari court agreed, that a reading of the New York City ethics regulations, which are arguably more restrictive than the Yonkers equivalent, prohibiting sitting Councilmembers from voting on increasing their own term limits would effectively deprive them of authority granted to them by State and local laws and a fortiori would prohibit them from voting on anything affecting their office, such as salary increases and, ironically, ethics regulations; resulting in governmental standstill ( Molinari II , 564 F.3d at 616 ).
Here, the Court sees no difference between the authority the New York City Council had to increase the Mayoral and City Council term limits and the authority that the Yonkers City Council has to do the same and thereby declares that there were no ethical violations committed by the Yonkers City Council by increasing their own and the Mayor's term limits.
Next, although Municipal Home Rule Law sec. 23 requires that changes to the laws of succession of certain offices ( MHRL sec. 23(2)(d) ) and changes to the term of an elected office ( MHRL sec. 23(2)(e) ) be put to the people in the form of a referendum, New York State decisional law has held that a change to the length of term limits that does not change the length of a term of office does not need to be enacted by a referendum ( Golden , 305 A.D.2d at 599-600, 762 N.Y.S.2d 410 ; see also, Holbrook v. Rockland County , 260 A.D.2d 437, 687 N.Y.S.2d 722 [2nd Dept. 1999], Molinari I , 596 F.Supp. 2d at 575 ). In addition, the laws of succession referred to in Municipal Home Rule Law sec. 23 refers only to the, "filling of a vacancy in office during the incumbency of a mayor, such as when the mayor dies or is for some reason unable to continue before the expiration of his current term ( Benzow v. Cooley , 12 A.D.2d 162, 209 N.Y.S.2d 364 [4th Dept. 1961] ). The Benzow court could not find any broader construction of "law of succession" and the Petitioners have offered no viable alternative construction either ( Id. at 164, 209 N.Y.S.2d 364 ). Nor have the Petitioners shown that the Respondents have changed the qualifications of office. Finally, although the City of Yonkers voters have twice in the recent past, in 1994 and 2001, voted directly on the establishment of term limits, there is no requirement that the referendum process be applied to future term limit modifications and it is recognized that, "laws proposed and enacted by the people under an initiative provision are entitled no greater sanctity or dignity" that those passed by the legislature ( Matter of Caruso v. City of New York , 136 Misc.2d 892, 895-96, 517 N.Y.S.2d 897 [Sup. Ct. New York Co. 1987] ; aff'd 143 A.D.2d 601, 533 N.Y.S.2d 379 [1st Dept. 1988] ; aff'd 74 N.Y.2d 854, 547 N.Y.S.2d 837, 547 N.E.2d 92 [1989] ; see also , Golden, supra ). As the Molinari I court explained using Caruso as its rationale, neither the Municipal Home Rule Law nor the New York City Charter restrict the legislature's ability to modify laws passed by referendum ( Molinari I, 596 F.Supp. 2d at 559 ). Here, again, this Court does not find that the Petitioners have shown the law in the Yonkers City Charter to be otherwise and thus declares that the City was not required to hold a referendum vote on whether to raise the term limits in question despite having done so in the past.
Last of all, the Court cannot even discern from the Petitioner's papers what exactly the Article 78 allegation is. Nevertheless, the Court does not find that there was any arbitrary or capricious act taken on the part of the Respondents and as demonstrated above, their actions were not marred by an error of law, nor did they neglect lawful procedure when increasing the complained of term limits.
Accordingly, the Respondent's motion to dismiss is DENIED, however, the Petitioner's victory is pyrrhic because the Court ultimately finds that the Petition must be DENIED as well.
The foregoing constitutes the opinion, decision and order of this court.