Judge Furfure Dismisses Case Against Ken Isaman By Libordi and Hot Dog

February 27, 2015

libordi photo 1hot dog photo 1ken photo 2

BATH, NY – Steuben County Court Judge Marianne Furfure has dismissed the Larry “Hot Dog” Stephens/Frank Libordi case against Ken Isaman. In August, Libordi and Stephens sued to have Isaman removed from either the Hornellsville Town Supervisor’s job, or the Steuben County Risk Manager’s job. Shortly after the August 11th lawsuit was filed, Isaman resigned from the county risk manager’s post.

 

Then Libordi amended the original lawsuit to have Isaman removed from being Hornellsville Town Supervisor, even though Isaman was no longer at the county job. Libordi claimed that Isaman should not be town supervisor because the insurance agency where Isaman worked, handled some insurance for Hornellsville Town Hall.

 

 

However, Isaman says he did not act as insurance agent for any Hornellsville Town related insurance claims. On Wednesday, Judge Furfure dismissed the Libordi and Stephens lawsuits, both the original and amended versions.

 

The reasons given by Furfure for the dismissal:

1. Larry Stephens, who lives in Canisteo, cannot have a supervisor removed in another town (Hornellsville), even if Stephens pays taxes in Hornellsville.
2. Because Isaman stepped down from the county job, that particular controversy was no longer an issue.
3. Libordi should not have filed an Article 78 lawsuit, but a Public Officers Law Section 36 legal action, in order to have Isaman removed from being town supervisor.
4. Steuben County Court was not the right courtroom for the case to remove Isaman from the town supervisor job.

As such, Ken Isaman stays on as Hornellsville Supervisor.

 

However, it appears that it’s not over yet. Libordi, according to Judge Furfure, can file legal action in the appeals court.

 

Also, on Wednesday of this week, Larry Stephens filed another lawsuit against Town Clerk Cheryl Isaman. Once again, the lawsuit is over freedom of information requests. That makes the second lawsuit by Stephens, against town clerk Sheryl Isaman, in two months. Both Isamans have stated that the freedom of information requests (FOILS) are numerous, harassing, and so time consuming that it makes it difficult to get any town business done.

See Judge Furfure’s Ruling below:

 

Supreme Court
State of New York
County of Steuben
In the Matter of the Application of LARRY STEPHENS I and FRANCIS LIBORDI II Petitioners

FEB 2 6 2015

For a Judgment under Article 78 of the Civil Practice laws and Rules

DECISION

Index No.:
2014M1056 CV

KENNETH ISAMAN, (TOWN OF HORNELLSVILLE)
I COUNTY OF STEUBEN

Respondents.

Larry Stephens, Canisteo, Petitioner Pro Se
Francis Libordi, North Hornell! Petitioner Pro Se

This matter has come before the Court on petitioners’ initial application brought pursuant to CPLR Article 78, in which petitioners allege that Kenneth Isaman (Isaman) must be compelled to resign from his position as either Town Supervisor of the Town of Hornellsville (Town), or as Risk Manager for the County of Steuben (County). Petitioners claimed that Isaman as County Risk Manaqer, negotiated insurance contracts with the Town of Hornellsville, while also acting as Hornellsvllle Town Supervisor and that he also received remuneration for simultaneously marketing “insurance services” through his employment at the RA Sweeney Insurance Agency (Sweeney Agency).

Petitioners argued that, by acting as the seller of the insurance policy in his capacity as County Risk Manager, and as the buyer of the same insurance policy as the Hornellsville Town Supervisor, Isaman created a conflict of interest because he personally stands to benefit from these transactions.

To support their claim that Isaman’s actions constitute a conflict of interest, petitioners cite an informal opinion issued by the Attorney General’s Office which concludes that, in certain circumstances, a county risk manager who is authorized to settle workers’ compensation claims, thus determining whether. to pay claims
submitted by a participating town, has a conflict of interest, if the risk manager is also a town supervisor of the town which submitted the claim (1999 Ops Atty Gsn No. 99-30).

At or about the lime petitioners filed their original petition, Isaman voluntarily resigned from his position as County Risk Manager. After Isaman’s resignation, but before any answers were received to the original petition, petitioners filed an amended petition against the same respondents alleging essentially the same facts as were set forth in the original petition. The only relief petitioners demanded in the amended petition was a judgment directing Isaman to resign as Town Supervisor and to provide an accounting of the remuneration he received from the Sweeney Agency while he was also employed as the County Risk Manager and the Hornellsville Town Supervisor.

The County filed an answer to the petition and the amended petition and raised objections in points of law asserting that petitioners’ petition and amended petition should be dismissed because petitioners have raised no issues that can be addressed by an Article 78 proceeding, and that even if they had, the statute of limitations bars the relief petitioners are seeking and petitioners have failed to exhaust their administrative remedies. The County also argued that petitioners lack standing to bring an Article 18 proceeding because they have failed to allege a direct injury-in-fact, and that, even if petitioners had sufficiently alleged an injury-in-fact, such injury falls outside the zone of interest of the governmental act challenged. Further, the County claims that petitioners have failed to present sufficient evidence to support their claim, state a claim under General Municipal Law, allege sufficient facts for any relief to be granted, and verify their original and amended petitions.

Isaman and the Town of Hornellsville filed an answer to the amended petition in which they argue that the portion of the lawsuit which is brought against Isaman in his individual capacity
must be dismissed because an Article ’78 proceeding cannot be maintained against a private citizen.
The Town respondents also argue that the Article 78 claim should be dismissed because petitioners are not seeking to enforce a specific law or prevent a specific act. Respondents claim that petitioners demand that Isaman resign as Town Supervisor constitutes an attempt to overturn the results of a lawfully conducted election with which they disagree.
The Town also argues that because petitioners have failed to allege any viable legal reason why Isaman should be removed
from office, or the nature of the conflict of interest. The amended petition should be dismissed for failure to state a cause of
Isaman should be removed from office, or the nature of the alleged conflict of interest, the amended petition should be dismissed
for failure to state a cause of action.

In their reply. the petitioners ask the Court to require the Town to remove the conflict and that the Court may require the Town to remove the conflict and the Court refer the matter to the Attorney General and the District Attorney.

After the matter had been argued and pending 3 decision, petitioners brought an application to supplement the record to include Town documents they claim I support their position that Isaman illegally benefited from contracts between the Town and the Sweeney Agency. The documents allegedly reflect payments by the Town to the Sweeney Agency during the time Isaman has been Town Supervisor. Respondent County consented to the petitioners’ request and was given an opportunity to submit an affirmation addressing this new information. The supplemental answer and objections in points of law assert that the exhibits have no
relevance to the claims made against the County. Respondents Town and Isaman did not submit any response to petitioners’ motion. The Court is prepared to grant petitioners’ request to supplement their petition by treating’ the two documents as exhibits to the amended petition. Petitioners provided good cause for the late submission and respondents have not. alleged any prejudice.

In their original petition, petitioners alleged that, by holding the position of County Risk Manager at the same time as serving as Town Supervisor, Isaman had
created a conflict of interest, as a matter of law. Petitioners asked the Court to issue an order directing Isaman to resign from either his position as Town Supervisor or as County Risk Manager. lsaman did resign from his position as County Risk Manager before the matter was submitted to this Court, thereby providing petitioners with the relief they sought in their original petition. Petitioners filed an amended petition acknowledging that Isaman’s resignation from the County resolved petitioners’ conflict of interest claim based on Isaman’s position as county Risk Manager but maintained that there still existed a conflict of interest with Isaman’s position as Town Supervisor which justified his removal from that office.

Because Isaman no longer holds the position of County Risk Manager, no controversy remains as to whether he should retain that position. A court’s power
to’declare the law “only arises out of, and is limited to-the rights of persons which me actually controverted in particular case pending before tribunal’) (Matter of Hearst Corp. v. Glyne, 50 NY2d 707. 713). AS the relief originally sought bv petitioners was achieved before the case came before the Court, there is no controversy remaining as between the petitioners and the County. Therefore, the claim against the County is dismissed as moot (Matter of Anonymous v. NYC Health and Hospitals Corp. ;70 NY2d 972 [1988); accord Matter of Warren v. ‘Bielecki, 92, etc.

CLAIMS AGAINST ISAMAN AND TOWN RESPONDENTS·

To the extent that petitioners have brought this Article 78 proceeding against Isaman individually, not in his capacity as Town Supervisor, the petition is dismissed. Article 78 proceedings are used to challenge actions, or inactions, of state and local government agencies and officers, or the conduct of private
corporations or other state chartered organizations (N Y. Civil Practice Law and Rutes Section 7802 [McKinney 2011, Commentary p,493]). As this Court has no jurisdiction
in this proceeding  over Isaman in his individual capacity, the petition must be dismissed (Matter of Aarismaa v. Bender, 1 08 A03d 1203, 1205 [4” Dept 2013).

Nevertheless, the amended petition does set forth sufficient allegations regarding Isaman’s actions as Town Supervisor to continue this proceeding against him in that capacity.

Petitioners claim that Isaman should be removed from his elected position as Town Supervisor because he has a conflict of interest between his employment with the Sweeney Agency,
and his position with the Town of Hornellsville. Petitioners claim that the Town may have purchased Insurance directly or indirectly from the Sweeney Agency, and that Isaman unlawfully received renumeration from the Sweeney Agency while also serving as the Town Supervisor. In support of their petition, petitioners attached two Town Abstracts which show payments from the
Town to the Sweeney Agency during Isaman’s term of office.

The Town respondents argue that the Article 78 claim against the Town and Isaman should be dismissed because petitioners are attempting to set aside election results with which they disagree. Removal of a town officer based on an alleged conflict of interest i$ governed, not by Article 78, but rather by a special proceeding
brought pursuant to Public Officers Law Section 36 This law allows residents of a municipality to seek removal of a public officer for acts of “misconduct”, maladministration, malfeasance or malversation in office” (POL §36) The purpose of this law is to “enable a town or village to rid itself of an unfaithful or dishonest public official”  {Reszka v. Coflins, 109 AD3d 1134 {4lh Dept. 2013] citing Matter of Salvador v, Ross, 61 AD3d 1163, 1164 (3rd Oept. 2009]).
Removal from public office may be justified where there is proof of “self dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of public trust” (Matter of Hedman v. Town Board of Town of Hornellsville, 56 AD3d1287 [41h Dept. 2008]   The Town respondents argue that the Article 78 claim against the Town and quoting Matter of’ Jones v. Filkins, 238 AD2d 954 [4th Dept. 1997)). A pattern of self dealing involving conflicts of interest may justify removal from’ public office’ (see Matter of West v. Grant, 243 AD2d 81,5 [31\i Dept. 1971]).

Only a citizen resident of the town or the district attorney can bring a proceeding under Public Officers Law Section 36. Given that Isaman is a Town Supervisor in the Town of Hornellsville, and petitioner Stephens lives in the Village of Canisteo, not in the Town of Hornellsville, Stephens does not qualify as one eligible to bring this proceeding. Neither can he assert standing on the basis that owns property or pays taxes in the Town, A taxpayer has no standing under the common law unless he shows that without a grant of standing there would be “an Impenetrable barrier to any judicial scrutiny” of the government action (Matter Of ColeJla v, Board of Assessors of County of Nassau, 95 NY2d 401, 4 ‘I 0 [2000]; Matter of Davidson v. Village of Penn Yen, 107 AD3d 1423 [41h Oept. 2013]). This is not the case here, as Petitioner Libordi claims to be a resident of the Town and thus a proper party authorized to bring the proceeding, Therefore, as to petitioner Stephens. the Article 78 proceeding is dismissed based on his lack of standing·

Public Officers Law Section 36 requires that the proceeding seeking removal be brought in the Appellate Division of the Supreme Court. Therefore, this Court does not have the authority to grant petitioners’ relief. While under certain circumstances, the Supreme Court has the ability to transfer a case improperly brought before it to the Court in which it should have been brought, CPLR §325(a) allows such to be done when there has been a motion filed by one party. In this case, none of the parties referenced the Public Officers Law, moved to convert this Article 78 to a proceeding under the Public Officers Law or moved to transfer the case to the Appellate Division for further proceedings. Additionally, it would appear that the nature of a proceeding under Public Officers Law Section 36 is similar to that referenced In CPlR §7804(b). CPLR §7804(b) requires that any action against Justice of the Supreme Court or Judge of a County Court must be brought in the Appellate division, In those cases, if a proceeding is improperly brought in the Supreme Court, the Supreme Court lacks subject matter jurisdiction over the case and has no power to transfer it to the Appellate Division (Matter of Finley v. Nicandri, 72 AD2d 831 (3rd Dept. 2000])

As Public Officers Law Section 36 places original jurisdiction over this proceeding in the Appellate Division, this Court lacks matter jurisdiction and must dismiss the action here (Matter of Nolan v. Lungen, 61 NY2d 788 [1984]). Even jf this Court has the discretion to transfer the matter, it should not be done here. Public Officers Law Section 36 requires that the charges be particularized and-the officer be oiven the opportunity to respond. Neither party
has been given the opportunity to address any claims within the framework established by Public Officers law Section 36. Such an opportunity would allow for appropriate judicial review.

Finally, this Court does not have jurisdiction through an Article 78 proceeding to compel the Town to take any action against its supervisor, This Court cannot compel an officer to bring a proceeding or take an action which is discretionary in nature (Brusco v Braun 84 NY2d 574,679 (1994): Matter of Doorley v DeMarco, 106 AD3d 27 (4th Oept. 2013J; Matter of Posner v. t.evii; 37 AD2d 33 -I \3(d Dept., etc.

Based on the above, the petition is dismissed without prejudice to Libordi’s right to bring a proceeding under Public Officers Law Section 36 before the Appellate Division Fourth Department.

Attomey tor Respondents Isarnan and Town to submit order.

Dated: February 25, 2015.

Hon. Marianne Furfure

Acting Supreme Court Justice