Matter of Rubeor v. Town of Wright ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 3, 2015                   520489
    ________________________________
    In the Matter of STEVEN RUBEOR,
    Respondent,
    v                                     MEMORANDUM AND ORDER
    TOWN OF WRIGHT et al.,
    Appellants.
    ________________________________
    Calendar Date:   October 21, 2015
    Before:   Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ.
    __________
    Lemire, Johnson & Higgins, LLC, Malta (Bradley J. Stevens
    of counsel), for appellants.
    Gleason, Dunn, Walsh & O'Shea, Albany (Daniel A. Jacobs of
    counsel), for respondent.
    __________
    Lynch, J.
    Appeal from a judgment of the Supreme Court (Connolly, J.),
    entered October 10, 2014 in Schoharie County, which partially
    granted petitioner's application, in a combined proceeding
    pursuant to CPLR article 78 and action pursuant to 
    42 USC § 1983
    ,
    to annul a determination of respondent Town Board of the Town of
    Wright to remove petitioner from the office of Assessor of the
    Town of Wright.
    In September 2008, petitioner was appointed to fill the
    unexpired term of his predecessor as Assessor of respondent Town
    of Wright (hereinafter the Town), the Town of Esperance and the
    Town of Schoharie, each town having entered into a municipal
    cooperative agreement establishing a coordinated assessment
    program (hereinafter CAP). Under a CAP, "a single assessor [is]
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    appointed to hold the office of assessor in all the participating
    assessing units" (RPTL 579 [2] [b]). In December 2012, prior to
    the expiration of petitioner's term, respondent Town Board of the
    Town of Wright (hereinafter the Board) resolved to withdraw from
    the CAP and appointed respondent Susan Crosby as the Town's
    interim Assessor. Petitioner then commenced this combined CPLR
    article 78 proceeding and action pursuant to 
    42 USC § 1983
    ,
    asserting that respondents improperly removed him from office,
    depriving him of a vested property right.1 Supreme Court granted
    the petition to the extent of annulling the Board's determination
    to remove petitioner as the Assessor of the Town, concluding that
    he was entitled to complete the term, which ended on September
    30, 2013.2 Respondents appeal.
    We affirm. This dispute raises an issue of first
    impression as to whether a town's withdrawal from a CAP truncates
    an assessor's term of office (see RPTL 579 [3] [a]; [4] [b]).
    There is no dispute here that the Town is required to appoint an
    assessor, whose term of office shall be six years (see RPTL 310
    [1], [2]), and that an assessor is a public officer who
    ordinarily may only be removed from office for cause under Public
    Officers Law § 36. The question presented is whether a CAP
    changes this structure. The governing statute, RPTL 579,
    seemingly has conflicting provisions. Specifically, the statute
    provides that an assessor's term shall be as defined in RPTL 310,
    i.e., six years (see RPTL 579 [3] [a]). However, the statute
    further provides that a member may withdraw from a CAP at any
    time, provided that it does so at least 45 days before the next
    1
    After respondents removed the case to federal court, the
    United States District Court for the Northern District of New
    York abstained from exercising jurisdiction pending the
    resolution of the underlying statutory dispute in state court,
    while staying petitioner's claims pursuant to 
    42 USC § 1983
    .
    2
    Since petitioner's term had already ended, Supreme Court
    declined to reinstate petitioner to his position as Town
    Assessor. Given that petitioner did not appeal from the
    determination and expressly seeks to affirm the judgment in his
    brief, we do not address the corrollary issue of back pay.
    -3-                520489
    taxable status date (see RPTL 579 [4] [b]). The only defined
    statutory consequence of withdrawal is that "the agreement
    between or among the remaining participants shall be deemed
    amended to remove any references to the assessing unit that has
    withdrawn" (RPTL 579 [4] [b]). The statute is otherwise silent
    as to what happens to an assessor's term when, as here, a CAP
    member opts to withdraw prior to the expiration of the term.
    In construing a statute, our primary objective is to
    determine the Legislature's intention, giving due effect to the
    plain meaning of unambiguous statutory language (see Matter of
    Albany Law School v New York State Off. of Mental Retardation &
    Dev. Disabilities, 19 NY3d 106, 120 [2012]). Where, as here, we
    having competing provisions, it is instructive to keep in mind
    that "a statute must be construed as a whole and that its various
    sections must be considered with reference to one another" (id.),
    while recognizing that "a statutory construction which renders
    one part meaningless should be avoided" (Rocovich v Consolidated
    Edison Co., 78 NY2d 509, 515 [1991]). With these principles in
    mind, we find it telling that RPTL 579 was amended in 2009 to,
    among other things, clarify that an assessor appointed in a CAP
    receives a six-year term and to shorten the notice period for a
    member to withdraw (see L 2009, ch 46, §§ 1-3 [eff May 29,
    2009]). The adoption of these companion provisions leads us to
    conclude that the Legislature intended an assessor's six-year
    term to remain intact, even where a CAP member opts to withdraw.
    Insofar as the assessor is concerned, the effect of withdrawal is
    merely delayed until the assessor's term expires, at which time
    the assessing unit is free to choose a new assessor, without
    approval from any other assessing unit. We are mindful that the
    Department of Taxation and Finance held, in an opinion of counsel
    issued in 1997, that the adoption of a CAP "may truncate the term
    of office of an incumbent appointed assessor," but that is not
    the situation presented here. Nor is that letter opinion
    binding, particularly in view of the 2009 amendment to RPTL 579
    (see Matter of Batti v Town of Austerlitz, 71 AD3d 1260, 1261-
    1262 [2010]).
    We conclude that petitioner's term of office did not end
    when the Town withdrew from the CAP and that petitioner held a
    right to continued employment until the expiration of his term.
    -4-                  520489
    Lahtinen, J.P., McCarthy and Egan Jr., JJ., concur.
    ORDERED that the judgment is affirmed, with costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 520489

Judges: Lynch

Filed Date: 12/3/2015

Precedential Status: Precedential

Modified Date: 11/1/2024