NYSCEE DOC NO SO RECEIVED 4 a yer SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER In the Matter of the Application of LISA A. COPELAND, MARCUS A. GRIFFITH, DELIA M, FARQUHARSON, JANICE DUARTE, and DERRICK THMPSON, as Councilpersons of the CITY COUNCIL OF THE CITY OF MOUNT VERNON, CITY COUNC'L OF THE CITY OF MOUNT VERNON, and SHAWYN PATTERSON-HOWARD, as Mayor of ‘The City of Mount Vernon, DECISION ORDER & JUDGMENT Petitioners, Index No. 62961/20 For a Writ of Mandamus pursuant to Article 78 of the CPLR, = against - DEBORAH REYNOLDS, as Comptroller of the City of Mount Vernon, Respondent, x CACACE, J." ‘The folfowing papers, numbered one (1) through six (6) were read on this petition for relief pursuant to article 78 of the Civil Practice Law and Rules (CPLR). Order to Show Cause - Affirmation in Support - Exhibits cee 1 Verified Petition - Exhibits .... Memorandum of Law in Support. . Verified Answer - Affirmation in Suppor « Affidavit in Support - Affidavit in Support - Exhibits : beteete ese e anes Memorandum of Law in Opposition to Petition Memorandum of Law in Further Support of Pet Upon the foregoing papers, it is decided, ordered and adjudged that the instant verified petition is addressed as follows: oleNYSCEE DOC. No.6 jc SCRINE BE103/11/2021 Factual Backpround/Procedural History ‘The petitioners bring this proceeding for a judgment pursuant to article 78 of the CPLR by a verified petition which seeks relief from this Court in the nature of an order of mandamus to compel respondent Deborah Reynolds, acting in her capacity as the Comptroller of the City of Mount Vernon (hereinafter, Comptroller Reynolds), to comply with those 7 city ordinances which were adopted by petitioner City Council of the City of Mount Vernon (hereinafter, City Council) and ratified by petitioner Shawyn Patterson-Howard (hereinafter, the Mayor) on August 5, 2020 and August 12, 2020, and as approved by the City of Mount Vernon Board of Estimate and Contract (hereinafter, the August 2020 Ordinances). Specifically, on August 5, 2020, the petitioner City Couneil adopted several Special Ordinances which provide that “[iJhe Comptroller is hereby directed to immediately provide the City Council with the following: (a) a complete list of all of the City of Mount Vernon's bank and trust accounts, along with the respective bank statements and reconciliations for the years 2017, 2018, 2019 and 2020” (hereinafier, Special Law No, 1), “{t}he Comptroller is hereby immediately required and directed to honor and comply with the City Council’s requests for a report that accurately describes all taxes collected on behalf of the school board in years 2018, 2019 and 2020 authorized and directed to abide by this ordinance” (hereinafter, Special Law No, 2), “[iJhe New York State office of the State Comptroller Accounting and Reporting Manual is hereby adopted as the City of Mont Vernon’s standard policies and procedures ... [and] [{Jhe Comptroller is hereby immediately directed to comply with all aspects of the OSC [Office of the State Comptroller] accounting and reporting manual effective immediately” (hereinafter, Special Law No. 3), “[i]he 2.NYSCRE ADOC NOsaf Qa eee RECEIVED NYSCEP 03/12/2021 Comptroller is hereby directed to immediately provide to the City Council, the Mayor and the Corporation Counsel any retainers, bills, vouchers, receipts, and similar records reflective of payments made or expenses related to Mr. Jay Hashmall and the law firm of Bank, Sheer, Seymour & Hashmall ... [and] [t]he Comptroller is also hereby immediately directed to identify the budget code from which Mr. Hashmall and the firm Bank, Sheer, Seymour & Hashmall are being paid” (hereinafter, Special Law No. 4). “[tJhe Comptroller must provide financial reports that shall include budget to actuals, cash flow projection and fund balance projections” (hereinafter, Special Law No. 5), “New York General Municipal Law is hereby adopted as the City of Mount Vernon’ standard policies and procedures ... [and] [t]he Comptroller is hereby immediately directed to comply with all aspects of New York General Municipal Law Section 5A and Chapter 65 of the City of Mount Vernon Charter by having the Mayor's express authorization for all wire transfer, provide such copy to the Mayor and keep a record thereof, effective immediately” (hereinafter, Special Law No. 6), and “{tJhe Comptroller is hereby directed to provide by 12 noon on Thursday, August 13, 2020 the City Council with the following: (a) a complete list of all of the City of Mount Vernon's bank and trust aecounts, along with the respective bank statements and reconciliations for the years 2017, 2018, 2019 and 2020 [requiring the Office of the Comptroller to provide reports of all banking activities of the City of Mount Vernon in all of its bank and trust accounts . .. (rJequiring the Office of the Comptroller to immediately provide a complete list of all depositories, Bank accounts and balances... [requiring the Office of the Comptroller to immediately provide banking statements from January 1, 2017 to present” (hereinalter, Special Law No. 7). In support of the instant petition for relief, the petitioners allege that the respondent has 3actus eescres—03 22/2021 NYSCBEDOC.-NO 69.0 any one of the undertakings which were directed by the August 2020 failed to comply Ordinances. In response to the respondent's alleged inaction vis-a-vis the undertakings directed by the August 2020 Ordinances, the petitioners commenced the instant article 78 proceeding, seeking the issuance of a writ of mandamus by this Court whieh directs and compels the respondent (1) to provide the petitioners with such records and information as this Court shall deem required by law, (2) to deliver to this Court such records and information as this Court shall deem necessary for in camera inspection, and (3) an order appointing a referee for the purpose of gathering and compiling such records and information as this Court shall deem necessary for the purpose of reporting to the Court what materials shall be provided to petitioners as required by law. In opposition to the verified petition, the respondent filed a verified answer which raised objections in point of law to the relief sought through the instant petition upon allegations that (1) the records sought for disclosure by the instant petition are public in nature and already available for inspection by the petitioners, (2) the records sought for disclosure by the instant petition have already been disclosed to the petitioners, and (3) the records and documents sought for disclosure by the instant petition require the preparation or construction of records or documents that the Office of the Comptroller of the City of Mount Vernon is not required to maintain. Specifically, by her affidavit submitted in support of her answer to the instant petition, the respondent submits that she has already provided the petitioners with Trial Balance Reports from which she submits “any financial information can be found”, Revenue and Expense Reports, List of Bank Accounts, Valuations of Reserves, notices of shortfalls in tax collection by reason of COVID, and a spread sheet with payments to all attorneys which includes her ownWYSCEEDOC NO 60 eR IVER -NVSCRE 03/14/2021 atfomeys. In conjunction with her answer in opposition to the instant petition for relief, the respondent raises a counterclaim seeking declaratory relief in the form of an order of this Court declaring that (1) the August 2020 Ordinances are a nullity, (2) the City Council has no authority to open bank accounts, accept funds or make payments, (3) the City Couneil and the Mayor submit vouchers pursuant to the procedures established by the Office of the Comptroller of the City of Mount Vernon, and (4) the Mayor must facilitate the ability of the Comptroller to conduct audits of the City of Mount Vernon’s departments and agencies. {n support of her counterclaims for relief, the respondent submits that the August 2020 Ordinances are invalid and unreasonable, were invalidly enacted, and were intended (o disrupt and interfere with her exercise of her duties as the Comptroller of the City of Mount Vernon Legal Analysis Although the parties to this proceeding are well aware from the multitude of CPLR article 78 proceedings litigated before this Court over the preceding 5 years, amongst and between the City of Mount Vernon’s Mayor, Comptroller, and City Council, that the manner and means utilized for the management and operation of municipal government should not be preempted by the judiciary in deference to the elected officials entrusted to perform such functions (see unfortunately, to ‘Klosterman y Cuomo, 61 NY2d $25, $27), this Court is being asked, yet agi fa ies of the Mayor, the City Council and tate an understanding of the respective responsibil the Comptroller vis-a-vis one another in connection with the operation of the municipal government of the City of Mount Vernon.RE ENYCE 09H OORL ‘Turning to consider the first cause of action raised through this proceeding, that being a request for an order of the Court compelling respondent Reynolds to provide the petitioners with such records and information as this Court shall deem required by law, the Court finds that such ‘mandamus relief is made available pursuant to CPLR 7803(1). In this regard, “[i]t is well settled that the remedy of mandamus is available to compel a governmental entity or officer to perform a ‘ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion” (Matter of People v Christensen, 77 AD3d 174, quoting Matter of Brusco v Braun, 84 NY2d 674, 679; see New York Civ. Liberties Union v State of New York, 4 NY3d 175, 183-184), as an action brought in the nature of mandamus to compe! has been defined as seeking an “extraordinary remedy” that is only available under those limited circumstances where, again, the challenged determination does not involve the exercise of judgment or discretion (see Klosterman v Cuomo, 61 NY2d 525, 527; see also Matter of Legal Aid Sociely of Sullivan County v Scheinman, 53 NY2d 12, 16). As applied by the courts of this State, mandamus to compel will lie only to “compel the performance of a purely ministerial act where there is clear legal right to the relief sought” (Matter of Legal Aid Society of Sullivan County v Scheinman, $3 NY2d 12, 16), which must stem from “a clear and unequivocal expression of intent from the Legislature” (Harper v Angiolillo, 89 NY2d 761, 767) Here, the petitioners submit that the respondent Comptroller's mandated obligation to provide them with the specific financial records and information which they seek through this proceeding is found in the August 2020 Ordinances, which appear to have been specifically crafted by the petitioner City Council to obtain the respondent's compliance with their repeated, albeit unsuccessful, requests that she disclose to them such records and information,NYSCEE DOC. NO. 69. satis eect RECEIVED NYSCEF: 03/11/2021 Furthermore, the petitioners characterize the August 2020 Ordinances as supportive of existing Provisions of the Mount Vernon City Charter (hereinafter, the Charter), including the provisions of both § 91 of the Charter, which provides that “the Comptroller shall ‘superintend the financial affairs of the City and manage the same pursuant to law and ordinances of the City Council”, and § 91-a of the Charter, which provides that the Comptroller ‘shall make or cause to be made at least once in each year a complete audit of the accounts of all departments and administrative officials to include tax ledgers and related records . .. [which] shall be submitted to both the City Council and the Board of Estimate and Contract”, Furthermore, in support of the legitimacy of their stated need for the financial records and information sought from the respondent, the joners submit that the City of Mount Vernon's interests in connection with several pending pei lawsuits would be critically advanced by the disclosures sought from the respondent, including, the City’s ability to offset the imposition of significant monetary civil penalties in response to the demands of the United States District Court, Southern Distriet of New York (Seibel, J.) in connection with the United States, et. al. v City of Mount Vernon under Case No. 18 Civ. $845 (CS), as well as the preparation of the City's defense to a complaint filed in the Supreme Court, Westchester County in connection with Board of Education of the Mount Vernon City School District v City of Mount Vernon and Deborah Reynolds, as Comptroller of the City of Mount Vernon under Index No, $7351/20, through which damages in the amount of $28,994,841.00 are sought from the defendants Notably, respondent Reynolds does not raise any challenge to the manner of the enactment of the August 2020 Ordinances by the petitioners, nor does the respondent challenge either the clarity of her understanding of the terms of same or her ability to comply with the legal Te(+ RRCRSVED SCHR +08/39/2021 NYSCHE-BOE=-NO=-68-—— obligations thereby placed upon her. Rather. respondent Reynolds simply characterizes the August 2020 Ordinances as precatory creations designed by the petitioners to support potential prospective efforts to enforce the terms of same by pursuit of an article 78 proceeding seeking mandamus relief, and additionally suggests that the August 2020 Ordinances constitute an effort by the petitioners to circumvent the Comptroller’s authority to process vouchers for the disbursement of monies incident to her duties prescribed by § 92 of the City Charter. However, to the extent that the respondent relies upon her speculative complaint raising the spectre of an impure motivation for the petitioners’ ultimate enactment of the August 2020 Ordinances, the Court finds that even if the record provided support for this conclusory claim, the petitioner fails to demonstrate that such an alleged motivation for the petitioner’s enactment of the August 2020 Ordinances serves to legally nullify such enabling legislation, or otherwise undermines the Similarly, to the extent that the respondent argues that the petitioners’ enforceability of same. enactment of the August 2020 Ordinances was designed to circumvent the authority of the Comptroller to process vouchers, the Court finds no support for this speculative proposition within the record, and further finds that this argument is belied by the plain language of § 92 of the City Charter which inarguably pertains solely to the duty of the City’s Comptroller to audit payment requests, without having any cognizable impact upon the ability of the City’s Comptroller to furnish the petitioners with the financial records and information mandated by the August 2020 Ordinances. Simply stated, this Court finds that the August 2020 Ordinances specifically obligate the respondent Comptroller to furnish the petitioners with a variety of financial records and information which bear dircetly upon the ability of the petitioners to carry out critical functionsaa an RECEIVED NYSCHE 40344472021 NYSGRE DOC NO 6D which would inarguably advance the interests of the City of Mount Vernon in connection several pending lawsuits as well as the day-to-day management of the City’s operations, and which are consistent with the respondent Comptroller's statutory obligation under § 91-a of the Charter to submit financial audits, tax ledgers and related records to both the petitioner City Council and the Board of Estimate and Contract - which includes the petitioner Mayor. Furthermore, the Court finds that the August 2020 Ordinances appear to be rationally related, and appropriately tailored, to enable the petitioners to serve the best interests of the City of Mount Vernon. In short, the ‘mandates placed upon the respondent Comptroller by the August 2020 Ordinances represent a clear and unequivocal expression of intent from the duly elected Legislature of the City of Mount Vernon to compel the Comptroller of the City of Mount Vernon to produce and disclose to them a variety of clearly defined financial records and information without providing for the exercise of any judgment or discretion by the Comptroller incident to the satisfaction of those mandates, Consequently, the Court finds that the petitioners have satisfied their burden to demonstrate that respondent Reynold’s refusal to provide them with the financial records and information which were specified in the August 2020 Ordinances reflects an impermissible exercise of power and authority that she does not possess, which constitutes a failure on her part to perform @ ministerial act which is incumbent upon her as a matter of law (see Matter of Crain Communications, Inc. v Hughes, 74 NY2d 626, 628; see alse Matter of Brown v New York State Dep't of Social Servs., 106 AD2d 740, 741). Accordingly, this Court finds that mandamus does lie to compel respondent Reynolds to disclose to the petitioners the specific financial records and information which are specified in the August 2020 Ordinances, which includes: (I) a listing of all of the City of Mount Vernon’s bank and trust accounts for all banking activities of the City ofNYSGER DOC NO pa Dan tN tne RECETUED NLS teSLb2021 Mount Vernon, a complete list of all depositories, bank accounts and balances, and the respective bank statements and reconciliations for the years 2017, 2018, 2019 and 2020, (2) a listing of all taxes collected on behalf of the Board of Education of the Mount Vernon City School District in ‘years 2018, 2019 and 2020, (3) a listing of all retainers, bills, vouchers, receipts, and similar records reflective of payments made or expenses related to the legal representation of the respondent by Jay Hashmall, Esq., and/or the law firm of Bank, Sheer, Seymour & Hashmall, including the budget code from which such payments and/or expenses have been paid, and (4) financial records that include projections of budget to actuals, cash flow and fund balances for each department and agency of the City of Mount Vernon, Furthermore, upon consideration of the three counterclaims raised by the respondent for declaratory relief pursuant to CPLR 3001, the Court notes that an action for a declaratory judgment action thereunder seeks to have the court establish and promulgate the rights of the parties on a particular subject matter, as a declaratory judgment action is remedial in nature with the primary purpose to stabilize the legal relations that exist between the parties and to eliminate uncertainty as to the scope and content of both present and prospective legal obligations (see Goodman v Reisch, 220 AD2d 383; Chanos v MADAC, LLC, 74 AD3d 1007). Insofar as the courts’ authority to grant such relief is concerned, “[i]t is firmly established that the decision of whether to grant declaratory relief is discretionary in character” (Smyley v Tejada, 171 AD24 660, 661; see Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert. denied 464 US 993). In this regard, it has been repeatedly held that a declaratory judgment action is not the proper procedural vehicle by which a party may challenge an administrative action when other remedies, including an Article 78 proceeding, were available (see Greystone Mgt. Corp. v Conciliation and Appeals -10-NYSCEF_poc. NO. 69 RECEIVED NYSCBF: 03/11/2023 Bd. of the City of N.Y., 62 NY2d 763; see also Jackson v Biderman, 151 AD2d 400, 401). Here, to the extent that the respondent's first counterclaim seeks the invalidation of the August 2020 Ordinances, this Court denies same based upon the determination supra upholding the legitimacy and enforceability of such duly enacted enabling legislation by the petitioners, however, to the extent that the respondent's second counterclaim secks the invalidation of the respondent City Council’s alleged establishment of a bank account at the Putnam County Savings Bank, and the respondent's third counterclaim seeks to compel various agencies/departments of the City of Mount Vernon to comply with her requests for unspecified “books and records”, this, Court finds that remedy by way of an independent article 78 proceeding would be the proper procedural vehicle through which the respondent would be capable of raising such challenges to matters which are entirely unrelated to those raised through this proceeding. Upon the foregoing, insofar as the respondent's second and third counterclaims are concerned, this Court concludes that these causes of action must be dismissed as having been improperly brought (see Greystone Mgt. Corp. v Conciliation and Appeals Bd. of the City of N.¥., 62 NY2d at 765; see also Marchand v Village of Bayville, 297 AD2d 785, 786). Accordingly, as the respondent has failed to sustain any one of the three counterclaims raised in the cross-petition for relief through this proceeding, this Court hereby denies all such claims for relief in their entirety, and thereupon dismisses the respondent's cross-petition.Based upon the foregoing, itis ordered that the instant petition for relief is granted to the n to issue a writ of mandamus to compel extent provided herein upon the Court's determins respondent Reynolds, in her capacity as the Comptroller of the City of Mount Vernon, to undertake any and all actions necessary to facilitate the disclosure of the foregoing financial records and information which are specified in the August 2020 Ordinances and further detailed herein, and it is further ordered that the applications for relief sought through the second and third causes of action raised in instant verified petition are hereby denied, and it is further ordered that the applications for relief sought through the three counterclaims raised by the respondent's counter claim are hereby denied. ‘The foregoing constitutes the Decision, Order and Judgment of this Court. A /\ Dated: White Plains, New York March 9, 2021 { / Aaa A. Honorable Susan Cacace ‘Acting Justice of the Supreme Court 2hibs . Ih. hs Oxman Law Group, PLLC Mare S. Oxman, Esq., Attorneys for Petitioners 120 Bloomingdale Road, Suite 100 White Plains, New York 10605 Bank, Sheer, Seymour & Hashmall Jay B. Hashmall, Esq. Attorneys for Respondent 399 Knollwood Road, Suite 220 White Plains, New York 10603