CHARLESON v. CITY OF LONG BEACH

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

Carl R. CHARLESON, et al., Respondents, v. CITY OF LONG BEACH, et al., Appellants.

Decided: September 30, 2002

DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Meyer, Suozzi, English & Klein, P.C., Mineola, NY, (A. Thomas Levin and Ramsey Clark of counsel), and Jones, Hirsch, Connors & Bull, P.C., Mineola, NY, (Howard K. Fishman of counsel), for appellants, and Ramsey Clark and Lawrence W. Schilling, New York, NY, for appellant Eugene C. Cammarato (one brief filed). Stephen K. Lee, Long Beach, NY, for respondents.

In a taxpayers' action pursuant to General Municipal Law § 51, inter alia, for a judgment declaring the positions of Director of Operations, Special Projects Manager, and Executive Assistant to the Director of Operations in the City of Long Beach, and the appointments of the defendants Eugene C. Cammarato, Robert Piazza, and Michelle Meiselman, respectively, to those positions to be illegal, the defendants appeal (1) from an interlocutory order and judgment (one paper) of the Supreme Court, Nassau County (Warshawsky, J.), entered May 25, 2001, which, inter alia, granted the plaintiffs' cross motion for partial summary judgment on their causes of action for declaratory and injunctive relief and denied their motion for summary judgment dismissing the complaint, (2), as limited by their brief, from so much of an order of the same court, also entered May 25, 2001, as, upon renewal and reargument, adhered to its prior determination in a decision dated March 23, 2001, (3) from an order of the same court, entered June 25, 2001, which denied their motion pursuant to CPLR 5017 to resettle the judgment, and (4), as limited by their brief, from so much of an order of the same court, entered June 28, 2001, as, upon vacating the prior order entered May 25, 2001, upon reargument and renewal, adhered to its prior determination in the decision dated March 23, 2001.

ORDERED that the appeal from the order entered May 25, 2001, is dismissed, without costs or disbursements, as that order was vacated by the order entered June 28, 2001;  and it is further,

ORDERED that the appeal from the order entered June 25, 2001, is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the interlocutory order and judgment;  and it is further,

 ORDERED that the appeal from the order entered June 28, 2001, is dismissed, without costs or disbursements, as no appeal lies from an order made upon reargument and renewal which adheres to an original determination in a decision (see Matter of A & S Transp. Co. v. County of Nassau, 154 A.D.2d 456, 457, 546 N.Y.S.2d 109;  Stockfield v. Stockfield, 131 A.D.2d 834, 517 N.Y.S.2d 195);  and it is further,

ORDERED that the interlocutory order and judgment is modified, on the law, by deleting the provision thereof granting the plaintiffs' cross motion for partial summary judgment on their causes of action for declaratory and injunctive relief, and substituting therefor a provision denying the cross motion;  as so modified, the interlocutory order and judgment is affirmed, without costs or disbursements.

In July 1999 the defendant Eugene C. Cammarato was appointed to the position of Director of Operations for the City of Long Beach, and the defendant Robert Piazza was appointed to the position of Special Projects Manager.   In July 2000 the defendant Michelle Meiselman was appointed to the full-time position of Executive Assistant to the Director of Operations.   The positions were set forth in budgets approved by the City Council, comprised of the defendants Joel Crystal, Barbara J. Mosca, Edmund A. Buscemi, Denis G. Kelly, Scott K. Nigro, and Catherine Pirrone.   The appointments were made by the defendant Bruce Nyman, the City Manager.

The plaintiffs, who are residents and taxpayers of the City of Long Beach, commenced this action pursuant to General Municipal Law § 51, inter alia, seeking a declaration that the positions were not legally created and staffed, and were a waste of taxpayer funds.   They sought an order restraining further payment of compensation for the positions and restitution of all compensation already paid.   Further, they alleged that the appointments violated Long Beach City Charter (hereinafter City Charter), article 2, § 14, which prohibits partisan political appointments.   The Supreme Court, inter alia, granted the plaintiffs' cross motion for partial summary judgment on their causes of action for declaratory and injunctive relief, and denied the defendants' motion for summary judgment dismissing the complaint.   We modify.

 The plaintiffs argue that given the nature of the positions at issue, including the powers, duties, and authority thereunder, and the titles and salaries, the positions are de facto public or city offices that can only be lawfully created by legislative enactment, which did not occur.   The challenged positions, they note, are not among the lawfully created offices set forth in City Charter, article 2, § 11 which may be filled by appointment by the City Manager.   The defendants argue that the challenged positions are not de facto public or city offices and that the powers and authority exercised thereunder are not commensurate with public or city offices that may only be lawfully created by legislative enactment.   Rather, the defendants argue, the positions are duly-created civil service positions that require no legislative action and that they were filled by the City Manager in a proper exercise of his general powers under the City Charter, not under article 2, § 11 of the City Charter.   On the limited record made, these arguments raise triable issues of fact.   Thus, the plaintiffs should not have been granted summary judgment on their causes of action for declaratory and injunctive relief.   We note that the plaintiffs' request for injunctive relief appears to have been rendered academic.   The defendants assert that the disputed positions of Special Projects Manager and Executive Assistant to the Director of Operations no longer exist, that Piazza and Meiselman have been reassigned to existing civil service positions, and that the position of Director of Operations has since been duly established as an appointive office by the City Council.

However, contrary to the defendants' contentions, there are questions of fact as to whether restitution may be compelled as against any defendant pursuant to General Municipal Law § 51 (see Mesivta of Forest Hills Inst. v. City of New York, 58 N.Y.2d 1014, 462 N.Y.S.2d 433, 448 N.E.2d 1344;  Stewart v. Scheinert, 47 N.Y.2d 826, 418 N.Y.S.2d 576, 392 N.E.2d 563;  Gaynor v. Rockefeller, 15 N.Y.2d 120, 256 N.Y.S.2d 584, 204 N.E.2d 627;  Schwep v. Town Bd. of Town of Clarkstown, 243 A.D.2d 459, 664 N.Y.S.2d 955;  Duffy v. Longo, 207 A.D.2d 860, 616 N.Y.S.2d 760), and whether the appointments violated City Charter, article 2, § 14.   Thus, the defendants were properly denied summary judgment dismissing the plaintiffs' causes of action seeking such a remedy and determination.

Finally, the plaintiffs' causes of action are not barred by the statute of limitations (see CPLR 214[2];  Gaidon v. Guardian Life Ins. Co. of Am., 96 N.Y.2d 201, 727 N.Y.S.2d 30, 750 N.E.2d 1078;  Hartnett v. New York City Tr. Auth., 86 N.Y.2d 438, 633 N.Y.S.2d 758, 657 N.E.2d 773;  Shechtman v. Sverdrup and Parcel Consultants, 226 A.D.2d 268, 641 N.Y.S.2d 279;  cf.   Clowes v. Pulver, 258 A.D.2d 50, 691 N.Y.S.2d 649).

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