Summary
ruling on validity of appointment to five-year term for Lackawanna Municipal Housing Authority
Summary of this case from In Matter of Brown v. FosterOpinion
March 12, 1993
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Pine, J.P., Balio, Lawton, Boomer and Davis, JJ.
Judgment insofar as appealed from unanimously reversed on the law with costs and petition granted. Memorandum: Petitioner Kathleen Staniszewski, Mayor of the City of Lackawanna, contends that Supreme Court erred in annulling her determination that the position held by respondent Francis Anticoli as a member of respondent Lackawanna Municipal Housing Authority was vacant and in failing to uphold her appointment of petitioner Gerald Schenk to that position. We agree. On January 11, 1988, Anticoli was appointed to the Authority for a term expiring on November 15, 1989. On November 15, 1989 Anticoli was reappointed to a five-year term. On December 26, 1989 Anticoli took and filed his oath of office for his reappointment. Staniszewski, on June 19, 1992, notified Anticoli that, because he did not file his oath of office within 30 days of his reappointment, she was declaring his position vacant. On that same date Staniszewski appointed Schenk to serve as a member of the Authority for the remainder of Anticoli's term.
Because Anticoli failed to file his oath of office within 30 days of his reappointment as required by section 30 Pub. Off. of the Public Officers Law, his appointment was vitiated and his office became vacant (see, Matter of Comins v. County of Delaware, 66 A.D.2d 966; Boisvert v. County of Ontario, 89 Misc.2d 183, 186, affd 57 A.D.2d 1051; see also, Ginsberg v. City of Long Beach, 286 N.Y. 400, 403; People ex rel. Walton v. Hicks, 221 N.Y. 503). Because of his failure to file timely his oath of office, Anticoli's status became that of a holdover until his successor was chosen and qualified (Boisvert v. County of Ontario, supra, at 186-187). Staniszewski therefore properly determined that Anticoli's position as a member of the Lackawanna Municipal Housing Authority was vacant and acted within the scope of her authority by appointing Schenk to that position pursuant to Public Housing Law § 34.