YOUNG v. COSTANTINO

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

Matter of Russell YOUNG, Petitioner, v. Antonio COSTANTINO, Mayor of Village of Seneca Falls, Respondent.

Decided: March 21, 2001

PRESENT:  PINE, J.P., WISNER, HURLBUTT, SCUDDER and KEHOE, JJ. Andrew V. Lalonde, for petitioner. Dante M. Scaccia, Syracuse, for respondent.

Petitioner commenced this special proceeding in this Court seeking the removal of respondent from the office of Mayor of the Village of Seneca Falls pursuant to Public Officers Law § 36.   The verified petition alleges 12 causes of action, each of which is based on hearsay.   Respondent's verified answer is based on personal knowledge and is supported by the affidavit of a person with personal knowledge.   In a special proceeding, the court “shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised”, and the court “may make any orders permitted on a motion for summary judgment” (CPLR 409[b] ).  “In view of the evidence submitted by respondent[ ], it was incumbent upon petitioner [ ] to make at least an evidentiary showing that an issue of fact existed”, and we conclude that petitioner failed to make that showing (Matter of Izzo v. Lynn, 271 A.D.2d 801, 802, 706 N.Y.S.2d 918;  see, McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 409, at 666;  see also, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Petition unanimously dismissed with costs.

MEMORANDUM: