IN RE: the Application of Stacey Sonnelitter (2025)

INTRODUCTION

By Decision and Order dated December 4, 2024, the Hon. Diane Y. Devlin, granted Respondent's motion to change venue from Genesee County to Albany County, and referred the balance of the pending motion, to dismiss, to this Court for a determination thereon, all as more fully set forth below.¹

In this Article 78 proceeding, Petitioner seeks, inter alia, mandamus relief to terminate the police officer positions of the individual respondents.² Petitioner also seeks a judicial determination that the individual respondents are guilty of crimes. The requested relief is extraordinary in context of this civil proceeding. It will not be granted!

STATEMENT OF FACTS

Petitioner, an individual, met with NYS Police Investigator Ronald Wilson, Respondent herein, to report suspected child abuse of her children by their father, Matthew Pynn, the Niagara County Public Defender. Plaintiff claims Investigator Wilson failed to investigate the claims "to the benefit of crony Matthew Pynn."³ Petitioner submitted the Investigation report dated April 18, 2019, indicating Investigator Wilson closed the investigation.⁴ Petitioner continued her complaint to the Internal Affairs Bureau, Respondent Edwards, but no investigation ensued.⁵

In response to Petitioner's FOIL request, the NYS Police disclosed that Investigator Wilson had been disciplined for being involved in a motor vehicle accident in 2021, while under the influence of alcohol, but the matter was not the subject of criminal charges.⁶ Petitioner alleged:

"On this internal affairs disciplinary matter, Respondent Ronald Wilson was found guilty of driving while under the influence of alcohol and speeding that resulted in a motor vehicle accident involving a disabled person. As such, Respondent Ronald Wilson was suspended for thirty-five (35) days without pay from April 26, 2021-May 25, 2021 and December 6, 2021-December 10, 2021. Respondent Ronald W. Wilson was also returned to a probationary status for one (1) year, December 11, 2021- December 10, 2022. Respondent Ronald Wilson was also ordered to attend a Victim Impact Panel (VIP) presentation pertaining to the consequences of impaired driving . . . "⁷

On November 19, 2021, Superintendent Bruen placed Wilson on probation through December 10, 2022.⁸ Petitioner claims that through the foregoing administrative action, Respondents Edwards, Bruen, Frankowski, and Wiles, shielded Wilson from criminal prosecution.⁹ Petitioner also objects to the redacted FOIL disclosure related to the investigation, and seeks unredacted disclosure.¹⁰

Distinct from the foregoing, Petitioner also claims Respondents Edwards and Frankowski failed to file their required public officer oaths.¹¹ Petitioner referenced Certifications issued by the Secretary of State that no Oath of Office was filed by either officer from 1998 to May 29, 2024.¹² Petitioner seeks judicial relief to terminate their police officer positions due to the failure to file the oath of office.

Petitioner seeks a review of the foregoing administrative actions and to terminate the police officer positions of the individual Respondents, and vacatur of any immunity corresponding thereto. Petitioner also seeks a judicial determination that Respondent Wilson is guilty of the crimes of DWI, speeding, vehicular assault, and criminal obstruction, and a judicial determination that Respondents Edwards, Bruen, Frankowski, and Wiles are guilty of the crime of criminal obstruction, as well as other relief in the form of mandamus.

Respondent cited the following, to wit:

"For years now, Petitioner has been waging a litigation campaign against many people involved in her custody, divorce and other family court proceedings, including various Judges, state and local agencies, and/or law enforcement personnel, for allegedly conspiring together, obstructing justice, and/or failing to properly investigate Petitioner's claims of child abuse (many of the same claims made here). A history of some of those cases as told by Petitioner herself is recounted here (Pynn v. Pynn, No. 24-cv-508- LJV, 2024 U.S. Dist. LEXIS 138489, at *2-8 (W.D.NY Aug. 5, 2024)). Notably, that history includes Niagara County Supreme Court Justice Sedita's issuance of an anti-filing injunction against Petitioner in 2021, which perhaps explains why this action was filed in Genesee County and not Niagara County, where Petitioner appears to live. Id. at *3-4; see also Pynn v. Pynn, W.D.NY Civ. No. 24-726 (habeas corpus petition challenging Mr. Pynn's custody of their children); Pynn v. Pynn, 2019 U.S. LEXIS 730."¹³

The issue of custody is not before this Court.

FOIL

On February 23, 2023, Petitioner filed a FOIL request seeking " . . . all NYS Police Investigative records maintained in the NYS Internal Affairs Bureau including but not limited to records by Captain Stanley Edwards" and "any and all records of disciplinary actions taken against Captain Edwards himself, Trooper Spero, Trooper Ronald Wilson, Trooper John DiPasquale, Trooper James Thompson, for the past 10 years."¹⁴ On February 27, 2023, the NYSP acknowledged the request.¹⁵ On June 16, 2023, the NYSP responded to the request and provided, in part, the requested documents, with redactions.¹⁶ On December 27, 2023, Petitioner objected to the redactions.¹⁷

MOTION TO REARGUE/RECONSIDER VENUE CHANGE¹⁸

Petitioner seeks to reargue the Court's decision to change venue to Albany County. Petitioner claims she resides both in Orleans County and Niagara County New York, and travel to Albany County is a hardship.

CPLR R 2221 provides, inter alia:

(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (Emphasis added)

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

A motion to reargue is directed to the discretion of the Court. (See Mayer v. National Arts Club, 192 AD2d 863, 865 [3d Dept. 1993], where the Court held,

"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision. The motion is not designed to afford an unsuccessful party successive opportunity to reargue issues previously decided or to present arguments different from those originally asserted.") (Emphasis added; internal citations omitted)

Here, there is no showing the Court misapprehended the law.

In Weaver v. Weaver, 2021 NY App. Div. LEXIS 5807, p. 5 [3d Dept. 10/21/2021], the Court held,

"A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion"). (emphasis added)

Petitioner has offered no new facts that would change the prior determination.

Motion to reargue/reconsider is denied.

MOTIONS TO DISMISS¹⁹

Respondents moved to dismiss the action pursuant to CPLR 3211 (a) (2) [standing], (5) [Statute of limitations], and (7) [failure to state cause of action].

STANDING

In this Court's view, standing rules "should not be heavy-handed." ( Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 NY3d 1, 6 [2014]). Even so, it is manifest Plaintiff lacks standing to assert the claims herein, except with respect to the FOIL claim, more fully discussed below.

As a preliminary matter, Petitioner has failed to allege sufficient facts to support a claim Respondents had a special duty to investigate her claims against Matthew Pynn. In Barnes v State of New York, 156 AD3d 975, 976-977 [3d Dept. 2017], the Court identified the criteria to establish a special duty, holding,

"Where, as here, a claim arises out of the performance of an act undertaken for the protection and safety of the public pursuant to general police powers, the governmental entity is immune from liability for the negligent performance of that governmental function, unless it owed a special duty to the injured party. As relevant here, a special duty arises when the governmental entity "voluntarily assumed a duty to the [injured party] beyond what was owed to the public generally". To establish a special duty through voluntary assumption, the injured party must demonstrate that the governmental agents assumed, through promises or actions, an affirmative duty to act on behalf of the injured party, that the agents knew that inaction could lead to harm, that there was some form of direct contact between the injured party and the agents and that the injured party justifiably relied on the agents' affirmative undertaking.

(See also, Bouet v. City of New York, 125 AD3d 539 [1st Dept. 2015], where the Court held,

"Defendants are entitled to summary judgment, because the investigation of the accident at issue here is a governmental function, and therefore, the City of New York is not liable for failing to properly investigate the incident unless there existed a special duty to plaintiff, in contrast to a general duty owed to the public.")

Here, Petitioner did not allege Wilson made any promise or engaged in any action that he would assume an affirmative duty to act on Petitioner's behalf. Moreover, Petitioner has not alleged sufficient facts to evidence any injury in fact arising from the NYS Police determination not to investigate Matthew Pynn, nor arising from the claimed failure to file criminal charges against Wilson. The point made is that Petitioner does not have any legal stake in those claims. (See Matter of Stevens v. New York State Div. of Criminal Justice Servs. (In re Stevens), 40 NY3d 505, 515 [2023], where the Court held

"The injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention.") (Emphasis added)

(See also, Skelos v. Paterson, 65 AD3d 339, 344 [2d Dept. 2009], where the Court held,

"It has long been a core principle of our system that a court has no inherent power to right a wrong unless the rights of the party requesting relief are affected by the challenged action. Thus, a plaintiff must allege an injury-in-fact that falls within his or her zone of interest . . . "

Stated another way, Petitioner's apparent disappointment with Wilson and the other individual respondents does not rise to the level of an injury in fact, nor demonstrate a cognizable legal stake in the foregoing. (Cf. People v Flanagan, 28 NY3d 644 [2017], where police investigative cover up for benefactor was sufficient to support a conviction for official misconduct pursuant to Penal Law § 195.00. subdivision (1)).

With respect to Petitioner's claim arising out of Edwards and Frankowski's failure to file their public oaths, Petitioner has not alleged an injury in fact, nor demonstrated a cognizable legal stake therein. While a resident taxpayer in New York State would have standing to challenge unlawful expenditures of State funds pursuant to Finance Law § 123, payment of both Edwards and Frankowski salaries are lawful pursuant to Public Officers Law § 15, despite any claimed failure to file the official oath under Public Officers Law § 10 and 30.

With respect to the FOIL claim, Petitioner has standing, but the claim is untimely, as discussed below.

Respondents motion to dismiss the Petition, except the FOIL claim, on the grounds Petitioner lacks standing is granted.

STATUTE OF LIMITATIONS

Petitioner's claims arise of Respondents' alleged actions, or failure to act, following Investigator Wilson's motor vehicle accident in 2021. Petitioner commenced the proceeding on July 26, 2024.

Petitioner seeks relief in the form of a mandamus review, and ultimately to terminate the positions of the individual Respondents. As aforementioned, the challenged administrative actions had concluded as of December 10, 2022.

This proceeding is governed by the four-month limitations period set forth in CPLR § 217 (1), which provides:

"Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner or the person whom he represents in law or in fact, or after the respondent's refusal, upon the demand of the petitioner or the person whom he represents, to perform its duty; or with leave of the court where the petitioner or the person whom he represents, at the time such determination became final and binding upon him or at the time of such refusal, was under a disability specified in section 208, within two years after such time." (Emphasis added)

Here, the issue is when did the limitations period begin to run.

The primary relief sought is mandamus to review Respondent's challenged administrative actions, which ended upon the restoration of Respondent Wilson to his position as of December 10, 2022. Accordingly, the four-month limitations expired on April 10, 2023. Petitioner does not have the right revive the statute of limitations simply by making an after the fact claim that the individual Respondents should be removed from their positions (See Matter of Coney Is. Preparatory Pub. Charter Sch. v. New York State Educ. Dept., 224 AD3d 1203 [3d Dept. 2024], where the Court held,

"Although petitioners characterize their claim as one for mandamus to compel and argue that their time to commence this proceeding, therefore, did not begin to run until their demand to act was refused, their own arguments contradict that assertion . . . Petitioners' subsequent attempt to have the Department reconsider its determination does not extend or toll the statute of limitations

Allowing this proceeding to be couched in terms of mandamus would allow any party to begin anew the running of the statute of limitations in a certiorari matter by demanding recision of the original determination the party wishes to challenge. We cannot countenance this attempt to create an end run around the statute of limitations.")

Thus, to the extent Petitioner seeks relief to terminate respondents Wilson, Edwards, Bruen, Frankowski, and Wiles, due to their administrative actions, the proceeding is time-barred.

Distinct from the foregoing, is a determination of when the limitations period began to run to challenge the offices of Edwards and Frankowski due to their failure to file their required public officer oaths. Each day that the officers are employed, without the filing of a public oath, the wrong is continuing under CPLR § 203 (a). While the claim is timely, the requested relief is not subject to mandamus in the first instance, all as more fully appears below.

The timeliness of the FOIL challenge presents a distinct issue. Public Officer's Law § 89 (4) (a) (b) provides:

(a) Except as provided in subdivision five of this section, any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive or governing body of the entity, or the person therefor designated by such head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought. In addition, each agency shall immediately forward to the committee on open government a copy of such appeal when received by the agency and the ensuing determination thereon. Failure by an agency to conform to the provisions of subdivision three of this section shall constitute a denial.

(b) Except as provided in subdivision five of this section, a person denied access to a record in an appeal determination under the provisions of paragraph (a) of this subdivision may bring a proceeding for review of such denial pursuant to article seventy-eight of the civil practice law and rules. In the event that access to any record is denied pursuant to the provisions of subdivision two of section eighty-seven of this article, the agency involved shall have the burden of proving that such record falls within the provisions of such subdivision two. Failure by an agency to conform to the provisions of paragraph (a) of this subdivision shall constitute a denial. (Emphasis added)

Here, Petitioner failed to file an administrative appeal within 10-days following the issuance of the FOIL response on June 16, 2023, rendering the FOIL response final for limitations purposes. The foregoing notwithstanding, even if one were to construe the Petitioner's December 27, 2023, demand for unredacted documents, as an appeal, Respondent's failure to act thereon within 10- days constituted a denial, commencing the limitations period (See Matter of Jewish Press, Inc. v New York City Dept. of Hous. Preserv. & Dev., 193 AD3d 483 [1st Dept. 2021], where the Court held,

"Here, petitioner's administrative remedies were exhausted when HPD constructively denied its timely appeal by failing to respond to the appeal within the statutorily mandated 10-day period. Thus, the four-month limitations period to challenge HPD's decision began to run when the statutorily mandated 10-day period to respond to the appeal expired.") (Emphasis added; internal citations omitted)

(See also, Van Steenburg v. Thomas, 242 AD2d 802, 803[3d Dept. 1997]

"To the extent that petitioner contends that he administratively appealed the denial of his first FOIL request, notwithstanding respondents' position that no such appeal was ever received, we note that upon respondents' failure to address the administrative appeal within 10 days (see, Public Officers Law § 89 [4] [a] ), petitioner was deemed to have exhausted his administrative remedies, thereby enabling him to seek judicial review of the denial thereof and commencing the four-month Statute of Limitations period for a CPLR article 78 proceeding.")

The point made is that Petitioner's challenge to the FOIL response is untimely and is not renewable by making further FOIL requests by means of this Article 78 proceeding (See Matter of Freedom Found. v New York City Dept. of Citywide Admin. Servs., 230 AD3d 999, 1003 [1st Dept. 2024], where the Court noted,

"Under certain circumstances, we have held that a second FOIL request, even if broader than the first, will not extend the time to commence an article 78 proceeding.")

To the extent Petitioner seeks FOIL relief, the claim is time-barred.

Respondents' Motion to dismiss the Petition as untimely is granted, except with respect to Petitioner's claims against Respondents Edwards and Frankowski arising out of their failure to file a public oath.

CAUSE OF ACTION

The CPLR R 3211 review standard requires that a Court "must give the pleadings a liberal construction, accept the allegations as true and accord the Petitioners every possible favorable inference" ( Chanko v. Am. Broad Companies, Inc., 27 NY3d 46, 52 [2016]; see also, Conklin v Laxen, 180 AD3d 1358, 1362 [4th Dept. 2020]; Piller v Tribeca Dev. Group LLC, 156 AD3d 1257, 1261 [3d Dept. 2017]). In Wedgewood Care Ctr. v. Kravitz, 198 AD3d 124, 130 [2d Dept. 2021], the court held,

"On a motion to dismiss for failure to state a cause of action, the pleading is to be afforded a liberal construction. The facts alleged in the complaint must be accepted as true, and the plaintiff is entitled to receive the benefit of every possible favorable inference. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery. However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration, nor to that arguendo advantage." (Internal quotations and citations omitted; emphasis added).

Assuming the allegations in the complaint are true, and plaintiff is afforded every possible favorable inference thereon, the inquiry must focus on whether it allows for an enforceable right of recovery.

In a nutshell, Petitioner is asking this Court to direct the NYS Police to terminate the positions of the individual Respondents herein, to decide that Respondent Wilson is guilty of various crimes, and to decide that Respondents Edwards, Frankowski, Bruen and Wiles are guilty of Obstruction of governmental administration in the second degree (Penal Law 195.05). Petitioner seeks same relief pursuant to Public Officer's Law § 30 (e) and (h).

Public Officer's Law § 30 (1) (e) and (h) provide, inter alia:

"1. Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

e. His or her conviction of a felony, conviction of a crime involving a violation of his or her oath of office, or upon entering a guilty plea in federal court to a felony, or upon entering a guilty plea in federal court to a crime involving a violation of his or her oath of office, provided, however, that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted. The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction. Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his or her former office, or a similar office if his or her former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof . . .

h. His refusal or neglect to file his official oath or undertaking, if one is required, before or within thirty days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required . . . " (Emphasis added)

Police officers are public officers subject to the provisions of Public Officer's Law § 30 (See Hodgson v. Mc Guire, 427 N.Y.S.2d 820 [1st Dept. 1980]). The required oath is set forth in NY CLS Const Art XIII, § 1 . Petitioner's allegation that said respondents were required to file an official oath but failed to do so, is deemed true for purposes of the CPLR 3211 motion. The provisions of Public Officer's Law § 30 are "self-executing" (See Matter of Feola v. Carroll 10 NY3d 569, 572 [2008]; Comins v. County of Delaware, 66 AD2d 966 [3d Dept. 1978]). Here, Petitioner's claims under Public Officer's Law § 30 are distinct.

First, Petitioner's claim that respondents Wilson, Edwards, Bruen, Frankowski, and Wiles are guilty of crimes, fall under the provision of Public Officer's Law § 30 (1) (e). If there were a prior conviction, removal would be summary (See Foley v. Bratton, 92 NY2d 781 [1999]). Since no Respondent has been convicted of a crime, however, no cause of action exists under Public Officer's Law § 30 (1) (e) in the first instance.

Petitioner's reliance on Matter of Bruder v. Kelly, 17 Misc 3d 372 is misplaced. In Matter of Bruder , the officers were removed after they were convicted at trial. After the convictions were reversed on appeal, the officers were denied reinstatement. The Court noted,

"The statute further provides that "after review of such record, the appointing authority may, in its discretion, reappoint such . . . official."

Here, as distinguished, the respondents were never charged with a crime. Moreover, Petitioner simply does not have a private cause of action to compel a Court to find that another individual is guilty of a crime (see e.g. Monaghan v Roman Catholic Diocese of Rockville Ctr., 165 AD3d 650, 652 [2d Dept. 2018], lv to appeal denied 32 NY3d 1192 [2019]). End of story!

Second, Petitioner's claims against Respondents Edwards and Frankowski fall under Public Officer's Law § 30 (1) (h). Does Petitioner have a private right of action thereunder to obtain relief in the form of terminating the respondents from their positions as NYS Troopers? I think not!

In Hosley v. Curry, 85 NY2d 447 [1995], the Court recognized the right of action under Public Officers Law §§ 3 and 30 and reached the merits where,

" . . . the petitioner commenced this proceeding seeking an order disqualifying respondent from acting in the capacity of Hamilton County District Attorney for failing to satisfy the residency requirements of Public Officers Law §§ 3 and 30 ." (Emphasis added).

Here, we are not dealing with the residency requirement under Public Officer's Law § 30 (1) (d). Rather, the claimed failure to file the oath presents a distinct inquiry pursuant to Public Officer's Law § 15.

Public Officer's Law § 15 provides:

"If a public officer, duly chosen, has heretofore entered, or shall hereafter enter on the performance of the duties of his or her office, without taking or filing an official oath, or executing or filing an official undertaking, as required by the constitution, section ten of this article, section twenty-five of the town law or section one hundred four of the uniform justice court act, or by any general or special law, his or her acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, notwithstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty for omission to take or file any such oath, or to execute or file any such undertaking; but this section shall not otherwise affect any provision of any general or special law, declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty, by reason of the failure to take or file any such oath or to execute or file any such undertaking; and this section shall not relieve any such officer from criminal liability for entering on the discharge of his or her official duties without taking or filing such oath or executing or filing such undertaking in accordance with such provisions."

Thus, even if Respondents Edwards and Frankowski were required to but failed to file an official oath, their actions in service are deemed valid pursuant to Public Officer's Law § 15. Moreover, upon the filing of an oath, the initial filing failure is cured nunc pro tunc (See People v. Rossney, 178 AD2d 765 [3d Dept. 1991], where the Court held,

"While the law provides that a Special District Attorney shall not perform duties of the office until an oath is filed, any duties so performed are performed as a de facto officer and are enforceable and valid. Additionally, it has been held that upon the filing of an oath, it shall be considered filed nunc pro tunc as of the date of appointment.) (Emphasis added; citations omitted)

The point made is that the relief sought by Petitioner, i.e., the removal of the officers, is simply not available as a matter of law. There's more!

In Skelos v. Paterson, 65 AD3d 339, 343-344 [2d Dept. 2009], rev'd on other grounds, 13 NY3d 141 [2009], the Court recognized the right to challenge title of a public officer, holding,

" . . . it has long been recognized that a determination of the title to a public office may be made by way of "mandamus, prohibition and quo warranto as the circumstances of the case and the mode of procedure may require". A quo warranto proceeding is traditionally seen as the exclusive remedy where there are facts in dispute that must be tried. However, when only an issue of law is presented, entitlement to an office may be tested by mandamus in a CPLR article 78 proceeding."

It is well settled that mandamus relief is extraordinary and limited to the performance of ministerial acts (See Matter of Hussain v. Lynch, 215 A.D.3 [3d Dept. 2023], where the Court held,

"Mandamus to compel is an extraordinary remedy, commanding an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary. A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result. Mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, mandamus will lie to compel a body to perform a mandated duty, not how that duty shall be performed. A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results [,] whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result.")

Generally, the determination of whether to terminate an employee necessitates the exercise of discretion; it is not a ministerial act. Worse, any finding that respondents Wilson, Edwards, Bruen, Frankowski, and Wiles are guilty of a crime is clearly not ministerial but, rather, necessitates the exercise of discretion. Moreover, any such determination mandates that criminal charges be filed, and that the person charged be afforded due process, inclusive of a jury trial where the prosecutor must prove the elements of the charged crime beyond a reasonable doubt. The Court notes that the discretion to prosecute a crime, rests with the District Attorney (See Della Pietra v. State, 71 NY2d 792, 796 [1988]). Thus, mandamus does not lie to remove any of the Respondents based upon a claim of alleged criminal acts, without the existence of a prior conviction pursuant to Public Officer's Law § 30 (1) (e).

With respect to the claimed failure of Respondents Edwards and Frankowski to file their required official oaths, the creation of a vacancy pursuant to Public Officer's Law § 30 (1) (h) is automatic (See McDonough v. Murphy, 92 AD2d 1022 [3d Dept. 1983], aff'd 59 NY2d 941 [1983]; Smith v. Noeppel, 204 Misc. 49 [1953]). Yet, pursuant to Public Officer's Law § 15, the filing failure, and effective vacancy, does not vitiate the de facto acts of the officers. In such case, any termination of employment would be a discretionary act. Thus, mandamus does not lie.

Accordingly, the motion to dismiss the Petition for failure to state a cause of action is granted, except with respect to the FOIL claims, which, as aforementioned are time-barred.

CONCLUSION

For the reasons more fully stated above, the motion to dismiss the Petition is granted, and the Petition is dismissed, with costs and disbursements.

This memorandum constitutes the decision and order of the Court.²⁰

Dated: February 13, 2025

Albany, New York

PETER A. LYNCH, J.S.C.

PAPERS CONSIDERED:

All e-filed pleadings, with exhibits.

NYSCEF Doc. Nos. 1 to 49.

FOOTNOTES

1.   NYSCEF Doc. No. 33- Decision and Order (Hon. Devlin, J.).

2.   NYSCEF Doc. No. 1 and 11— Order to Show Cause and Verified Petition.

3.   NYSCEF Doc. No. 1 - Verified Petition ¶ 2.

4.   NYSCEF Doc. No. 2 — Incident reports.

5.   NYSCEF Doc. No. 1 - Verified Petition ¶ 3.

6.   NYSCEF Doc. No. 1 - Verified Petition ¶ 4 to 7, 19; Nyscef Doc. No. 3.

7.   NYSCEF Doc. No. 1 - Verified Petition ¶ 6.

8.   NYSCEF Doc. No. 3 — FOIL responses.

9.   NYSCEF Doc. No. 1 - Verified Petition ¶ 20.

10.   NYSCEF Doc. No. 3.

11.   NYSCEF Doc. No. 1 - Verified Petition ¶ 23 and 24. NYSCEF Doc. No. 4.

12.   NYSCEF Doc. No. 4. The record does not contain any evidence that the oaths have since been filed.

13.   NYSCEF Doc. No. 24. — Memo of Law, p. 6, Fn.3.

14.   NYSCEF Doc. No. 19 — FOIL request.

15.   NYSCEF Doc. No. 20 — FOIL acknowledgement.

16.   NYSCEF Doc. No. 21 — FOIL response.

17.   NYSCEF Doc. No. 22 — FOIL objections to redactions.

18.   NYSCEF Doc. No. 36. — Motion to Reargue venue change.

19.   NYSCEF Doc. No. 17 — Motion to Dismiss.

20.   Notice of Entry and service in accord with CPLR R 2220 is required.