MAYOR OF THE CITY OF NEW YORK v. New York County District Attorney, Robert M. Morgenthau, Amicus Curiae. (1997)

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about June 30, 1995, which granted New York County District Attorney Robert Morgenthau's motion to appear as Amicus Curiae, granted plaintiff's cross motion for summary judgment, denied defendant's motion for summary judgment, dismissed defendant's counterclaim and declared that Local Laws, 1995, No. 13 of the City of New York 1995 is invalid and that plaintiff and municipal agencies are under no obligation to abide by its terms, unanimously affirmed, without costs.

 The Mayor has sole power to appoint “all * * * officers not elected by the people, except as otherwise provided by law” (N.Y. City Charter § 6 [a] ).   The proposed Independent Police Investigation and Audit Board would not be a “purely investigative” body (Matter of Henry v. New York State Commn. of Investigation, 141 Misc.2d 849, 857-858, 535 N.Y.S.2d 859, affd. 143 A.D.2d 914, 533 N.Y.S.2d 690) and its members would constitute officers, which in the analogous context of Civil Service Law § 75 requires only “that some sovereign power, whether great or small, be exercised in the position” (Matter of Nolan v. Tully, 52 A.D.2d 295, 298, 383 N.Y.S.2d 655, lv. denied 40 N.Y.2d 803, 387 N.Y.S.2d 1030, 356 N.E.2d 482, appeal dismissed 40 N.Y.2d 844, 387 N.Y.S.2d 1035, 356 N.E.2d 492).   Since defendant Council would “limit or impair” protected powers of plaintiff Mayor (see, Quigley v. City of Oswego, 71 A.D.2d 795, 419 N.Y.S.2d 27, lv. denied 48 N.Y.2d 607, 422 N.Y.S.2d 1025, 397 N.E.2d 1189), the enactment “impinge[s]” upon a statutory executive function (see, Matter of Sacco v. Maruca, 175 A.D.2d 578, 579, 573 N.Y.S.2d 787, lv. denied 78 N.Y.2d 862, 578 N.Y.S.2d 877, 586 N.E.2d 60), and an executive power has been transferred within the meaning of Municipal Home Rule Law § 23(2)(f).   The IAS court properly held that defendant cannot, by enactment, force plaintiff to share statutory power (see, e.g., Matter of Heeran v. Scully, 254 N.Y. 344, 173 N.E. 7;  Neils v. City of Yonkers, 38 Misc.2d 691, 697, 237 N.Y.S.2d 245).  We decline to sever any portion of Local Law 13 inasmuch as we do not find that, “ ‘if partial invalidity had been foreseen,’ ” defendant “ ‘would have wished the [Local Law] to be enforced with the invalid part exscinded’ ” (Association of Surrogates & Supreme Ct. Reporters v. State of New York, 79 N.Y.2d 39, 47-48, 580 N.Y.S.2d 153, 588 N.E.2d 51).   Knowing the Mayor's objection to Local Law 13 because of its shared power of appointment, the Council nevertheless overrode his veto and adopted Local Law 13 without a severability clause.   In such circumstances, it cannot be credibly argued that it would have wanted the invalid part excised.

MEMORANDUM DECISION.