MATTER OF DeCINTIO v. VILLAGE OF TUCKAHOE 2010-11984.
100 A.D.3d 887 (2012)
954 N.Y.S.2d 563
2012 NY Slip Op 8002
In the Matter of ANTHONY J. DeCINTIO, Petitioner, and KEVIN McBRIDE et al., Respondents, v. VILLAGE OF TUCKAHOE et al., Appellants.
Appellate Division of the Supreme Court of New York, Second Department.
November 21, 2012.
Angiolillo, J.P., Lott, Austin and Cohen, JJ., concur.
Ordered that the judgment is reversed insofar as appealed from, on the law and the facts, with costs, that branch of the petition which was to annul the determination on the ground that John Fitzpatrick was not an impartial hearing officer is denied as academic, that branch of the petition which was to compel the Village of Tuckahoe to conduct a name-clearing hearing is denied, and the proceeding is dismissed.
The petitioners Kevin McBride and Phillip White (hereinafter together the petitioners), along with Anthony DeCintio, commenced this proceeding pursuant to CPLR article 78 seeking, inter alia, to annul the determination of John Fitzpatrick, the Mayor of the Village of Tuckahoe, removing McBride and White
Although Fitzpatrick should have recused himself from presiding over the removal hearing, the petition has been rendered academic to the extent that it seeks a judgment annulling his determination dated November 13, 2009, to remove the petitioners from office, since the petitioners' terms expired prior to the submission of this appeal, and they no longer hold public office (cf. Matter of Gumo v Canzoneri,
Contrary to the petitioners' argument, they have not established an exception to the mootness doctrine. The petitioners have failed to show, and the record does not demonstrate, that the process involved in the removal of THA Commissioners is a phenomenon typically evading review or that there are substantial and novel issues raised herein (see generally Matter of Hearst Corp. v Clyne,
The expiration of the petitioners' terms of office does not, however, preclude the petitioners from exercising their right to seek a name-clearing hearing upon a showing that Fitzpatrick created and disseminated a false and defamatory impression
The petitioners contend that Fitzpatrick focused only on those Commissioners of the THA that had been appointed by his predecessor as mayor, rather than elected by public housing tenants, and that this focus tended to create an impression that those specific Commissioners of the THA, including the petitioners, were guilty of misconduct. However, the alleged misconduct constituted, at best, "individual or isolated instances of bad judgment or incompetent performance of duties, correctable by learning from one's mistakes, which are not stigma[s] of constitutional proportions" entitling the petitioners to a name-clearing hearing (Matter of Swinton v Safir,
In view of the foregoing, we need not address the parties' remaining contentions.
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