Opinion
2001-08121, 2001-08122, 2001-08123
Argued October 24, 2002.
December 9, 2002.
In a proceeding pursuant to CPLR article 78, inter alia, to review an advisory opinion of the Town of Huntington Board of Ethics and Financial Disclosure, dated January 14, 2000, and to prohibit that entity, the Town Attorney of the Town of Huntington, and any and all Assistant Town Attorneys from conducting any further proceedings with respect to alleged ethical violations committed by the petitioner in her official capacity as Councilmember of the Town of Huntington, the petitioner appeals from (1) a decision of the Supreme Court, Suffolk County (Gerard, J.), dated October 31, 2000, (2) an order of the same court, dated March 8, 2001, which, inter alia, permitted the filing of a redacted copy of the advisory opinion with the Town Clerk, and (3) a judgment of the same court, dated July 11, 2001, entered upon the order dated March 8, 2001, which, inter alia, permitted the filing of the redacted copy of the advisory opinion with the Town Clerk.
Susan J. Scarpati-Reilly, Fort Salonga, N.Y., appellant pro se.
Rains Pogrebin, P.C., Mineola, N.Y. (Ernest R. Stolzer, Richard G. Kass, and James P. Clark of counsel), for respondents Town of Huntington Board of Ethics and Financial Disclosure and its members.
Wilson Elser Moskowitz Edelman Dicker, LLP, New York, N.Y. (Michael E. Coffey, Vito M. DeStefano, and Matthew P. Ross of counsel), for respondents Town of Huntington Town Attorney's Office, Lawrence W. Cregan, and James F. Matthews.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
ORDERED that the appeal from the order is dismissed (see CPLR 5701[b][1]); and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The Supreme Court properly determined that the advisory opinion of the Town of Huntington Board of Ethics and Financial Disclosure was nonfinal and not subject to review in a proceeding pursuant to CPLR article 78 (see CPLR 7801; Matter of Cohoes Mem. Hosp. v. Department Of Health of State of N.Y., 48 N.Y.2d 583, 590; Matter of Neale v. Cohen, 281 A.D.2d 421). Moreover, the Supreme Court properly found that the Town Board of the Town of Huntington was a necessary party with respect to the petitioner's claims against the Town Attorney and the Town Attorney's assistants (see Town Law § 65; Cahn v. Town of Huntington, 29 N.Y.2d 451).
The release of an unredacted copy of the advisory opinion prior to the commencement of this proceeding was improper. However, the petitioner failed to establish a deprivation of due process, since there was no proof that any stigma resulting from the improper dissemination of the advisory opinion deprived her of a liberty or property interest (see Matter of Swinton v. Safir, 93 N.Y.2d 758, 763). She had no liberty or property interest in being re-elected to public office (see Emanuele v. Town of Greenville, 143 F. Supp.2d 325, 333). Her claims that she will be deprived of legal representation and indemnification for acts while in office and opportunities to serve as a Law Guardian are based on pure speculation.
The petitioner's remaining contentions are without merit.
SMITH, J.P., GOLDSTEIN, FRIEDMANN and McGINITY, JJ., concur.