SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1138
OP 15-00589
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.
IN THE MATTER OF FRANCIS LIBORDI, PETITIONER,
V MEMORANDUM AND ORDER
KENNETH ISAMAN, INDIVIDUALLY, AND TOWN OF
HORNELLSVILLE, RESPONDENTS.
FRANCIS LIBORDI, PETITIONER PRO SE.
PATRICK F. MCALLISTER, WAYLAND, FOR RESPONDENTS.
Proceeding pursuant to Public Officers Law § 36 (initiated in the
Appellate Division of the Supreme Court in the Fourth Judicial
Department) for the removal of respondent Kenneth Isaman from the
public office of Town Supervisor of the Town of Hornellsville.
It is hereby ORDERED that said petition is unanimously dismissed
without costs.
Memorandum: Petitioner commenced this original proceeding
pursuant to Public Officers Law § 36 seeking removal of Kenneth Isaman
(respondent) from the public office of Town Supervisor of respondent
Town of Hornellsville (Town). In his answer, respondent sought
dismissal of the petition on various grounds, including the ground
that he had not engaged in conduct that would warrant such removal.
“[R]emoval from office pursuant to Public Officers Law § 36 is an
extreme remedy reserved for officials engaged in self-dealing, corrupt
activities, conflict of interest, moral turpitude, intentional
wrongdoing or violation of a public trust” (Matter of McCarthy v
Sanford, 24 AD3d 1168, 1168-1169 [internal quotation marks omitted];
see Matter of Reszka v Collins, 109 AD3d 1134, 1134).
Here, petitioner alleged self-dealing and a conflict of interest
arising from respondent’s employment with an insurance agency that did
business with the Town during respondent’s tenure as Town Supervisor.
We conclude, however, that respondent “conclusively refuted those
allegations, and petitioner failed to present evidence . . . to raise
a triable issue of fact” (Reszka, 109 AD3d at 1134-1135; see Matter of
Young v Costantino, 281 AD2d 988, 988; cf. Matter of West v Grant, 243
AD2d 815, 815-816).
Petitioner alleged a further conflict of interest arising from
respondent’s votes at Town Board meetings in favor of appointing
respondent’s wife to positions with the Town Board, and approving the
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OP 15-00589
salaries for her positions. Respondent admitted that he should have
abstained from those votes, and we conclude, under the circumstances,
that his failure to do so “does not constitute the type of conduct
that would warrant removal from office” (Reszka, 109 AD3d at 1135; see
Matter of Salvador v Ross, 61 AD3d 1163, 1164).
Entered: November 20, 2015 Frances E. Cafarell
Clerk of the Court