KURYAK v. ADAMCZYK

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of John KURYAK, Petitioner-Appellant-Respondent, v. Lawrence F. ADAMCZYK and Ralph M. Mohr, as Commissioners of and Constituting Erie County Board of Elections, Respondents-Respondents,

Kathleen M. Staniszewski, Respondent-Respondent-Appellant.  (Proceeding No. 1.) Matter of Anthony J. Mingarelli, Jr., Petitioner-Appellant-Respondent, v. Lawrence F. Adamczyk and Ralph M. Mohr, as Commissioners of and Constituting Erie County Board of Elections, Respondents-Respondents, Ronald R. Spadone, Respondent-Respondent-Appellant.  (Proceeding No. 2.)

Decided: August 18, 1999

PRESENT:  GREEN, J.P., WISNER, PIGOTT, JR., HURLBUTT and SCUDDER, JJ.

 Supreme Court properly denied the applications seeking to bar respondent Kathleen M. Staniszewski from being elected to a third term as mayor and respondent Ronald R. Spadone from being elected to a third term as councilman.   Those respondents were in their first terms of office when Lackawanna City Charter section 4.1 was amended to provide that the mayor “shall not be eligible to serve more than two (2) consecutive terms”, and section 3.1 was amended to provide that “[n]o Councilman shall serve more than two (2) consecutive four (4) year terms.”  “It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it” (Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 584, 673 N.Y.S.2d 966, 696 N.E.2d 978;  see, McKinney's Consolidated Laws of N.Y., Book 1, Statutes § 51[b] ).   Here, the amendments use the term “shall”.  “As a question of intention, a statute framed in future words, such as ‘shall’ or ‘hereafter,’ is construed as prospective only” (Comment, McKinney's Consolidated Laws of N.Y., Book 1, Statutes § 51 [b];  see, Matter of Dillon v. Coughlin, 143 Misc.2d 207, 214, 539 N.Y.S.2d 880, affd. 153 A.D.2d 50, 550 N.Y.S.2d 115, lv. denied 76 N.Y.2d 701, 558 N.Y.S.2d 891, 557 N.E.2d 1187).

Cross appeals unanimously dismissed (see, CPLR 5511;  Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139;  Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, 602 N.Y.S.2d 449, lv. denied 82 N.Y.2d 653, 602 N.Y.S.2d 802, 622 N.E.2d 303) and order affirmed without costs.

MEMORANDUM: