FILED: ERIE COUNTY CLERK 12/10/2023 12:18 PM INDEX NO.

815817/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/10/2023

STATE OF NEW YORK : COUNTY OF ERIE

SUPREME COURT :
: Index # 815817/2023
For a Judgment pursuant to CPLR Article 78 :
:
Daniel T. Warren. : Hon. Catherine Nugent Panepinto
Plaintiff/Petitioner, : IAS Assigned Justice
Against :
:
Gary A. Dickson, individually and in his :
capacity as the Supervisor of the Town of :
West Seneca, New York; The Town of West :
Seneca, New York; Daniel Meyer in his :
capacity as the FOIL appeals officer of Erie :
County; Brian Bray in his capacity as Erie :
County Commissioner of Personnel and Judith :
Kindron :
Defendants/Respondents :

Petitioner’s Memorandum of Law in Support of Verified Petition/Complaint

DATED: December 10, 2023

West Seneca, New York

Yours, etc.

Daniel T. Warren
Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724
d.warren@roadrunner.com

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Contents
PRELIMINARY STATEMENT .................................................................................................... 5
FIRST CAUSE OF ACTION REVIEW OF DENIAL OF FOIL REQUEST ................................ 5
SECOND CAUSE OF ACTION KINDRON’S APPOINTMENT IS UNLAWFUL UNDER
TOWN LAW .................................................................................................................................. 7
ARTICLE 78 PROCEEDING IS PROPER VEHICLE .............................................................. 7
STANDING UNDER GENERAL MUNICIPAL LAW § 51 ..................................................... 8
COMMON LAW TAXPAYER STANDING............................................................................. 9
RESPONDENT KINDRON’S APPOINTMENT IS VOID BECAUSE SHE FAILED TO
SATISFY THE RESIDENCY REQUIREMENTS................................................................... 10
RESPONDENT KINDRON FAILED TO TAKE AND FILE AN OATH OF OFFICE ......... 13
THIRD CAUSE OF ACTION KINDRON’S APPOINTMENT IS UNLAWFUL UNDER CIVIL
SERVICE LAW ............................................................................................................................ 14
RESPONDENT KINDRON FAILS TO MEET THE RESIDENCY REQUIREMENT ......... 15
MRS. KINDRON LACKED THE MINIMUM QUALIFICATIONS ..................................... 15
FOURTH CAUSE OF ACTION DICKSON IS PERSONNALLY LIABLE TO THE TOWN OF
WEST SENECA FOR KINDRON’S WAGES PAID TO HER UNLAWFULLY UNDER THE
CIVIL SERVICE LAW ................................................................................................................ 15
CONCLUSION ............................................................................................................................. 16

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Cases
American La France & Foamite Corp. v. City of New York, 156 Misc.2, affd. 246 App. Div. 699
..................................................................................................................................................... 9
Anderson v. Krupsak, 51 A.D.2d 229, 381 N.Y.S.2d 135 (3d Dept., 1976) .................................. 7
Argyle Zoning Com. v Argyle, 173 A.D.2d 1060 [3d Dept 1991] ................................................. 8
Boisvert v County of Ontario, 89 Misc.2d 183, affd 57 A.D.2d 1051 ......................................... 13
Brescia v. Mugridge, 52 Misc.2d 859 (S.Ct., Suffolk Co., 1967) .................................................. 7
Council of Regulated Adult Liquor Licensees v City of New York Police Dept., 300 A.D.2d 17
(1st Dept 2002) ............................................................................................................................ 6
Crotty v New Windsor, 103 Misc.2d 378 [Sup Ct, Orange County 1980) ..................................... 8
Dekdebrun v. Hardt, 68 A.D.2d 241 (4th Dept., 1979) .................................................................. 7
Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422 (4th Dept., 1976) ................................ 7
Grace v. Forbes, 64 Misc. 130 ........................................................................................................ 9
International Meters v. City of N.Y, 47 Misc.2d 924 (N.Y. Sup. Ct. 1950)................................... 9
Kopf v Nulty, 306 A.D.2d 483 [2d Dept 2003] .............................................................................. 8
Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451 [1980]) ......................................................... 7
Lombino v Town Bd. of Town of Rye, 206 A.D.2d 462 .............................................................. 13
Mapes v Swezey, 279 AD 660 [2d Dept 1951] .............................................................................. 8
Massachusetts v. Mellon, 262 U.S. 447 .......................................................................................... 9
Matter of Andresen v. Rice, 277 N. Y. 271 .................................................................................... 9
Matter of Bon- Air Estates v. Building Inspector of Town of Ramapo, 31 A.D.2d 502 [2d Dept.]
..................................................................................................................................................... 9
Matter of Brescia v. Mugridge, 52 Misc.2d 859 (N.Y. Sup. Ct. 1967) .......................................... 8
Matter of Brown v. Trustees, Hamptonburg School, 303 N.Y. 484, 104 N.E.2d 866 (N.Y. 1952)
................................................................................................................................................... 12
Matter of Comins v County of Delaware, 73 A.D.2d 698 ............................................................ 13
Matter of Dictaphone Corp. v. O'Leary, 287 N. Y. 491 ................................................................. 9
Matter of General Bldg. Contrs. v. County of Oneida, 54 Misc.2d 260 ......................................... 9
Matter of Gillen v Town of Hempstead Town Bd., 63 Misc.3d 653 .............................................. 9
Matter of Gruber [New York City Dept. of Personnel - Sweeney], 89 N.Y.2d 225 [1996]) ......... 7
Matter of Haller, 42 A.D.2d 829 [4th Dept 1973] ........................................................................ 11
Matter of Kopf v Nulty, 26 A.D.3d 380 [2d Dept 2006] ................................................................ 8
Matter of Oakley v Longobardi, 51 Misc.2d 427 ......................................................................... 13
Matter of Policemen's Benev. Assn. v. Board of Trustees, 21 A.D.2d 693 [2d Dept.] .................. 9
Matter of Procaccino v. Stewart, 60 Misc.2d 551........................................................................... 9
Matter of Sullivan v. Taylor, 279 NY 364 [1939] ........................................................................ 12
Matter of Sullivan, 279 NY 364 [1939] ........................................................................................ 10
Matter of Vector Foiltec, LLC v State Univ. Constr. Fund, 84 A.D.3d 1576 [3d Dept 2011] ..... 10
Matter of Werfel v. Fitzgerald, 23 A.D.2d 306 [2d Dept.] ............................................................. 9
New York Times Co. v New York Com. on Human Rights, 41 N.Y.2d 345 [1977] ..................... 7
Oakley v. Longobardi, 51 Misc.2d 427 (S.Ct., Putnam Co., 1966) ................................................ 7
Palmateer v Greene County Indus. Development Agency, 38 A.D.3d 1087 [2007] ...................... 8
People ex rel. Corscadden v. Howe, 177 N.Y. 499 ........................................................................ 8
Staniszewski v Lackawanna Mun. Hous. Auth., 191 A.D.2d 1048.............................................. 13
Sulli v Board of Supervisors, 24 Misc.2d 310 [Sup Ct, Monroe County 1960] ............................. 8
Sylvester v. Mescall, 277 App.Div. 961 (4th Dept., 1950)........................................................... 14

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Village of Brockport v Calandra, 191 Misc.2d 718 (Sup Ct, Monroe County 2002), aff’d 305
A.D.2d 1030 (4th Dept 2003) ...................................................................................................... 6
Walton v. Hicks, 173 App.Div. 338 (3d Dept., 1916) .................................................................. 13
Williams v. Hylan, 126 Misc. 807 aff’d 217 A.D. 727................................................................... 8
Statutes
Civil Service Law § 102 ......................................................................................................... 10, 14
Civil Service Law § 102(2) ........................................................................................................... 16
Civil Service Law § 23(4-a) .......................................................................................................... 15
Civil Service Law § 35 ........................................................................................................... 11, 14
Civil Service Law § 40 ................................................................................................................. 15
CPLR § 7803................................................................................................................................... 8
CPLR Article 78 ............................................................................................................................. 7
General Municipal Law § 51 ...................................................................................................... 8, 9
Public Officers Law § 10 ........................................................................................................ 11, 13
Public Officers Law § 3 ................................................................................................................ 12
Public Officer's Law § 3(1) ........................................................................................................... 10
Public Officers Law § 30(1)(h) ..................................................................................................... 13
Public Officers Law § 89 (4)(a) ...................................................................................................... 6
Town Law § 20 ....................................................................................................................... 11, 12
Town Law § 23 ....................................................................................................................... 11, 12
Town Law § 23(1) ........................................................................................................................ 10
Town Law § 25 ....................................................................................................................... 11, 13
Town Law § 29(15) ...................................................................................................................... 11
Town Law § 52(1) ........................................................................................................................ 11
Town Law § 53-a .......................................................................................................................... 11
Town Law § 53-c .......................................................................................................................... 11
Town Law § 84 ............................................................................................................................. 11
Treatises
1963 Op. Atty. Gen. [Inf.] 121...................................................................................................... 10
Op Atty Gen [Inf] No. 2006-7 ...................................................................................................... 11
Op. Atty. Gen. [Inf.] No. 89-14 .................................................................................................... 12
Op. Atty. Gen. [Inf] No. 97-11 ..................................................................................................... 10
Op. Atty. Gen. [Inf] Nos. 2000-5 ............................................................................................ 10, 12
Regulations
21 NYCRR § 1401.7(f) ................................................................................................................... 6

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PRELIMINARY STATEMENT

This proceeding seeks review of the constructive denial of Petitioner’s FOIL request to

the Erie County Department of Personnel by Respondents Brian Bray and Daniel Meyer the Erie

County FOIL Appeals Officer.

It also challenges Mrs. Kindron's appointment to the positions of Director of Finance and

Bookkeeper under the Town Law and Public Officers Law and alternatively under the Civil

Service Law on the grounds that it should be annulled because she was not a Town resident as

required by law. Under the Public Officers Law, the Town Law and the Civil Service Law, the

Director of Finance and/or Bookkeeper must be a Town resident.

Respondent Kindron’s appointment(s) should also be vacated for failure to take and file

the required oath of office.

The appointment of Mrs. Kindron should be annulled for the additional reason that she is

not a Certified Public Accountant, as set forth in the "minimum qualifications" in the Town's job

description.

In the event that Respondent Kindron’s appointment was to follow the Civil Service Law

and not the Town Law and Public Officers Law then Respondent Dickson is personally liable for

the wages improperly paid to her by the Town of West Seneca.

FIRST CAUSE OF ACTION REVIEW OF DENIAL OF FOIL REQUEST

On November 8, 2023 Petitioner requested pursuant to Public Officers Law Article 6

(“FOIL”) to the Respondent Erie County for “All records relating to the position of Director of

Finance for the Town of West Seneca from January 1, 2017 to date.” (NYSCEF #10).

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When Respondent Bray failed to produce the requested records or acknowledge the

receipt of the request Petitioner administratively appealed to Respondent Meyer on November

18, 2023 (NYSCEF #11).

By failing to respond or acknowledge the request within the statutory time and by failing

to respond to the Petitioner’s administrative appeal within the statutory time, Respondent Bray

and Mayer constructively denied the Request (Public Officers Law § 89 (4)(a)).

Respondent Meyer’s failure to respond to the Petitioner’s administrative appeal within 10

business days constitutes a denial of the appeal and entitles the Petitioner to initiate this action in

state court (21 NYCRR § 1401.7(f) (“A failure to determine an appeal within 10 business days of

its receipt by granting access to the records sought or fully explaining the reasons for further

denial in writing shall constitute a denial of the appeal.”); see Council of Regulated Adult Liquor

Licensees v City of New York Police Dept., 300 A.D.2d 17, 18 (1st Dept 2002) (“Petitioners

exhausted all administrative remedies when, after submitting their appeal of the Department’s

initial denial of their request, they received no reply from the Department within the statutorily

mandated 10-day response period.”); Village of Brockport v Calandra, 191 Misc.2d 718, 727

(Sup Ct, Monroe County 2002), aff’d 305 A.D.2d 1030 (4th Dept 2003) (“[w]here an appeal is

not addressed within 10 days, the requesting party has exhausted its administrative remedies and

may initiate a challenge to a constructive denial of access under C.P.L.R. article 78”). The

Petitioner is, thus, entitled to bring this action to state court.

This Court should order Respondents Bray and Meyer to immediately provide responsive

documents.

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SECOND CAUSE OF ACTION KINDRON’S APPOINTMENT IS UNLAWFUL UNDER

TOWN LAW

ARTICLE 78 PROCEEDING IS PROPER VEHICLE

A proceeding in the nature of mandamus may be commenced by a taxpayer or person

claiming title to the office pursuant to CPLR Article 78, or an action in the nature of quo

warranto may be initiated by the Attorney General pursuant to section 63-b of the Executive

Law. The general rule appears to be that the former is appropriate where there are no unresolved

questions of fact and no ambiguities in the statutory law invoked. Where there are unresolved

questions of fact the proper procedure to try title to office is an action in the nature of quo

warranto (Dykeman v. Symonds, 54 A.D.2d 159, 388 N.Y.S.2d 422 (4th Dept., 1976); Anderson

v. Krupsak, 51 A.D.2d 229, 381 N.Y.S.2d 135 (3d Dept., 1976); Brescia v. Mugridge, 52

Misc.2d 859 (S.Ct., Suffolk Co., 1967); Oakley v. Longobardi, 51 Misc.2d 427 (S.Ct., Putnam

Co., 1966); cf., Dekdebrun v. Hardt, 68 A.D.2d 241 (4th Dept., 1979)).

Where the interpretation of a statute or its application is "one of pure statutory reading

and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to

rely on any special competence or expertise" of a town board (Kurcsics v Merchants Mut. Ins.

Co., 49 N.Y.2d 451, 459 [1980]). In such cases, "the judiciary need not accord any deference to

the [board's] determination, and is free to ascertain the proper interpretation from the statutory

language and legislative intent" (Matter of Gruber [New York City Dept. of Personnel -

Sweeney], 89 N.Y.2d 225, 231-232 [1996]). "The issue is simply whether the [board] properly

analyzed the law" (New York Times Co. v New York Com. on Human Rights, 41 N.Y.2d 345,

349 [1977]).

Similarly, when carrying out its duties, a board may not act in an arbitrary or ignorant

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manner (see Matter of Kopf v Nulty, 26 A.D.3d 380, 380 [2d Dept 2006]; Kopf v Nulty, 306

A.D.2d 483,483 [2d Dept 2003]; Argyle Zoning Com. v Argyle, 173 A.D.2d 1060, 1060-1061

[3d Dept 1991]; Crotty v New Windsor, 103 Misc.2d 378, 378-382 [Sup Ct, Orange County

1980); see also CPLR § 7803; Mapes v Swezey, 279 AD 660, 660 [2d Dept 1951]; Sulli v Board

of Supervisors, 24 Misc.2d 310, 310-316 [Sup Ct, Monroe County 1960]).

"The determination of the title to public office belongs exclusively to the courts of law to

be exercised by mandamus, prohibition and quo warranto as the circumstances of the case and

the mode of procedure may require." ( People ex rel. Corscadden v. Howe, 177 N.Y. 499, 506,

emphasis supplied.; Matter of Brescia v. Mugridge, 52 Misc.2d 859 (N.Y. Sup. Ct. 1967)).

As explained below, the Respondents erred in its application of law, and its hiring of Mrs.

Kindron was arbitrary and capricious.

STANDING UNDER GENERAL MUNICIPAL LAW § 51

General Municipal Law § 51 authorizes an action against town officers and others “[t]o

prevent any illegal official act on the part of any such officers...or to prevent waste or injury to,

or to restore and make good, any property, funds or estate....” It is well-settled, however, that a

taxpayer's action is proper “'only when the acts complained of are fraudulent, or a waste of

public property in the sense that they represent a use of public property or funds for entirely

illegal purposes' [citations omitted]” (Palmateer v Greene County Indus. Development Agency,

38 A.D.3d 1087, 1089 [2007]). This action involves the illegal use of Burchfield Park by

Defendant in violation of the public use doctrine and is properly challenged under GML § 51

(See Williams v. Hylan, 126 Misc. 807 aff’d 217 A.D. 727).

It has been consistently held that taxpayer residents of the community involved have

sufficient legal status to seek court review of nonfiscal judgments by public officials of a

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municipality (Matter of Bon- Air Estates v. Building Inspector of Town of Ramapo, 31 A.D.2d

502 [2d Dept.]; Matter of Werfel v. Fitzgerald, 23 A.D.2d 306 [2d Dept.]; Matter of Policemen's

Benev. Assn. v. Board of Trustees, 21 A.D.2d 693 [2d Dept.]; see Massachusetts v. Mellon, 262

U.S. 447; Matter of Andresen v. Rice, 277 N. Y. 271, 281; Matter of Procaccino v. Stewart, 60

Misc.2d 551). This rule has been applied in cases involving alleged violations of the competitive

bid statutes (Matter of Dictaphone Corp. v. O'Leary, 287 N. Y. 491; Matter of General Bldg.

Contrs. v. County of Oneida, 54 Misc.2d 260). Where competitive bidding is required there is a

presumption of waste and injury from the allegation that bidding was not had (Grace v. Forbes,

64 Misc. 130, 139; American La France & Foamite Corp. v. City of New York, 156 Misc.2, 4,

affd. 246 App. Div. 699; International Meters v. City of N.Y, 47 Misc.2d 924 (N.Y. Sup. Ct.

1950)).

Plaintiff is a taxpayer as defined under GML § 51 (NYSCEF #1, Verified Complaint ¶¶

3, 5 and NYSCEF #21, Verified Answer ¶ “FIRST”). Allegations of improper appointments

constitute sufficient allegations of injury or waste to public funds so as to imperil the public

interests or work a public injury or produce some public mischief, conferring taxpayer standing

on Petitioner (Matter of Gillen v Town of Hempstead Town Bd., 63 Misc.3d 653).

COMMON LAW TAXPAYER STANDING

I have common law taxpayer standing to challenge the resolution and use of the

Burchfield Park in violation of the public use doctrine. The common law taxpayer standing

doctrine exists "as a remedy for taxpayers to challenge important governmental actions, despite

such parties being otherwise insufficiently interested for standing purposes, when the failure to

accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny

of legislative action" (Matter of Vector Foiltec, LLC v State Univ. Constr. Fund, 84 A.D.3d

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1576, 1578 [3d Dept 2011] [internal quotation marks and citations omitted], lv denied 17 NY3d

716 [2011]). Whether or not a person appointed as a Town Officer satisfies the statutory

requirements for the office is a matter of important government action that falls within the ambit

of common-law taxpayer standing. The legislature has afforded taxpayers to challenge

appointments made in violation of the Civil Service Law in enacting Civil Service Law § 102.

Likewise taxpayer standing should be afford to appointments not governed by the Civil Service

Law.

RESPONDENT KINDRON’S APPOINTMENT IS VOID BECAUSE SHE FAILED TO

SATISFY THE RESIDENCY REQUIREMENTS

Under Public Officer's Law § 3(1) town officers must reside in the town in which they

serve. The positions of Director of Finance and/or Bookkeeper qualifies as an officer and is

therefore subject to the residency requirement. Similarly, Town Law § 23(1) requires town

officers to be a town resident. On this ground too, the Director of Finance and/or Bookkeeper is

subject to the residency requirement.

Section 3 (1) of the Public Officers Law provides that "[a]n appointed officer of a town

must reside within the town at the time of his or her appointment and during his or her tenure in

office" (Op. Atty. Gen. [Inf.] No. 95-5; see Public Officers Law§§ 3 [1], [16], [40 (sub 4)]; 30[1]

[d]; Op. Atty. Gen. [Inf.] No. 85-59; 1963 Op. Atty. Gen. [Inf.] 121).

Similarly, Town Law §§ 20 and 23 provide that "[e]very appointive officer of a town at

the time of his or her appointment and throughout his or her term of office must be an elector of

the town. An elector of the town is a resident of the town who is eligible to register to vote in

town elections" (Op. Atty. Gen. [Inf] No. 97-11 [citations omitted); see Op. Atty. Gen. [Inf] Nos.

2000-5; 87-52; 1963 Op. Atty. Gen. [Inf.] 121; Matter of Sullivan, 279 NY 364, 368 [1939] ["To

be eligible to (serve as a town attorney, the person) was required to be an elector of the town at

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the time of his appointment and throughout his term of office"]; Matter of Haller, 42 A.D.2d 829,

829-830 [4th Dept 1973]). The qualifications to be an “elector” is set forth in Town Law § 84.

An "officer" status for residency purposes is not confined to those required officer

positions enumerated in Section 20 of the Town Law (see Town Law § 20; Matter of Gaylord

Disposal Servs, 175 A.D.2d 543, 544-545 [3d Dept 1991] [building inspector]; Op Atty Gen

[Inf] No. 2006-7). Rather, the determination of who is an officer "requires consideration of the

powers, duties, qualifications and other characteristics of the position" (Op Atty Gen [Inf] No.

2006-7). The "indicia of status as an officer," for example, include:

"the statutory designation of the position as an 'office,' the requirement to

take an oath of office or file a bond, the appointment for a definite term,
and receipt of a commission of office or official seal. Courts have also
noted that a public office is a position created by and the powers and
duties of which are prescribed by statute. Most importantly, the duties of a
public official involve some exercise of sovereign power. Moreover, in
contrast to an employee who acts at the direction of others, a public officer
is vested with discretion as to how he performs his independent duties"
(id. [citations omitted]; see also Matter of Haller, 42 A.D.2d at 829-830).

The positions of Director of Finance and Bookkeeper bear all the indicia of a public

officer. They are appointed for a fixed term of two years (see Town Law § 53-c). They must take

an oath of office (Town Law § 25 and/or Public Officers Law § 10). They were created by

statute, and their powers and duties are prescribed by statute (see Town Law §§ 23; 29(15);

52(1); 53-a; 53-c). The positions of Director of Finance and Bookkeeper are not in the classified

service of the Civil Service Law (Town Law § 53-a, Civil Service Law § 35).

Unlike most town officials and employees who are subject to the supervision and control

of the town board, 1 the Director of Finance and Bookkeeper are appointed and directly

1
See Town Law § 20(1)(a) (“All other officers and employees in such town shall be appointed by the
town board, except as otherwise provided by law.”)

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supervised by the supervisor and serves at his pleasure.

Although towns may modify a special State law to some extent, it is well settled that

towns may not modify a general State law which in terms and in effect applies alike to all towns

(see Matter of Brown v. Trustees, Hamptonburg School, 303 N.Y. 484, 104 N.E.2d 866 (N.Y.

1952) ["Inasmuch as (a town) is a creature of the Legislature, the power that the Legislature

wields over a (town) is supreme and transcendent"]; Matter of Sullivan v. Taylor, 279 NY 364,

369 [1939] ["No power was granted to the town board by the Legislature to change the length of

the term of office, without which the town board could not affect the duration of the term of the

appointee"]; see also see Municipal Home Rule Law § 2 [5] [defining "general law"]).

Applying these principles to the residency provisions, the Attorney General has opined

that Town Law §§ 20, 23 and Public Officers Law § 3 are "rendered [] 'special' law[s] only to the

extent of an exception created by the State Legislature for a particular office" (Op. Atty. Gen.

[Inf.] No. 89-14 [emphasis added]).

The State Legislature, however, has not created any exceptions to the residency

requirement for the positions of Director of Finance and Bookkeeper. In the absence of any such

exception, Town Law §§ 20 and 23 and Public Officers Law § 3 clearly apply in terms and in

effect alike to all towns with respect to the office of Director of Finance and Bookkeeper and are

therefore not "special laws" (see id.; compare Op. Atty. Gen. [Inf.] Nos. 2000-5; 88-27; 87-52).

Rather, they are general laws that a town cannot amend (see Op. Atty. Gen. [Inf.] No. 89-14).

Even if this Court holds that the positions of Director of Finance and Bookkeeper are

Civil Service positions and not Town Officers the lack of residency still precludes Respondent

Kindron’s appointment as addressed below.

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RESPONDENT KINDRON FAILED TO TAKE AND FILE AN OATH OF OFFICE

In addition to the residency requirement, every officer of a municipal corporation must

take an oath of office and file it in the office of the clerk of the municipal corporation within

thirty days after his term of office commences (Public Officers Law, §§ 10, 30(1)(h)). Of similar

import is Town Law § 25 which provides that every town officer must take and subscribe an oath

of office within fifteen days after the commencement of his term of office and within eight days

file the same in the county clerk’s office.

If a local officer fails to take and file his oath of office as required by law, both section

30(1)(h) of the Public Officers Law and section 25 of the Town Law provide that the office shall

be vacant. In People ex rel. Walton v. Hicks, 173 App.Div. 338 (3d Dept., 1916), the court

considered section 30 of the Public Officers Law and held that where a public officer neglects to

file his oath, “the office becomes vacant ipso facto. That is all there is to it. No judicial procedure

is necessary; . . . there is no incumbent, and the vacancy may be filled by the proper appointive

power”. Thus, if a member of a town board of assessment review fails to timely take and file his

oath of office, his office is vacant.

Since Respondent Kindron has failed to take and file an oath of office within the time to

do so requires the Court to declare the positions of Director of Finance and Bookkeeper as vacant

and direct Respondent Kindron to vacate those offices (see Lombino v Town Bd. of Town of

Rye, 206 A.D.2d 462, 463, lv denied 84 N.Y.2d 807; Staniszewski v Lackawanna Mun. Hous.

Auth., 191 A.D.2d 1048, 1049; Boisvert v County of Ontario, 89 Misc.2d 183, 186, affd 57

A.D.2d 1051), and "no hearing on charges was required to dismiss him from office" (Matter of

Comins v County of Delaware, 73 A.D.2d 698, 698; Matter of Oakley v Longobardi, 51 Misc.2d

427, 428).

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In Sylvester v. Mescall, 277 App.Div. 961 (4th Dept., 1950) it was held that mandamus

was proper to try title to office where former members of the Lackawanna Municipal Housing

Authority failed to file their oaths of office as required by the Public Officers Law.

For the above reasons Respondent Kindron’s appoint is in violation of the applicable

Laws and Rules and should be vacated and future payments to her should be enjoined.

THIRD CAUSE OF ACTION KINDRON’S APPOINTMENT IS UNLAWFUL UNDER CIVIL

SERVICE LAW

If the Court determines that the positions of Director of Finance and/or Bookkeeper are

not local officers as challenged in the Second Cause of Action it must then determine if

Respondent Kindron’s appointments are proper under the Civil Service Law.

The Civil Service Law has as its underlying principle the desire of affording everyone

who has the necessary qualifications an equal opportunity of securing appointment. Trickery in

manipulating the principles of civil service so as to serve some favorite son is as much to be

condemned as the practice of the spoils system.

New York State Constitution, Article V § 6 provides the primary directive for civil

service appointments: “Appointments and promotions in the civil service of the state and all of

the civil divisions thereof, including cities and villages, shall be made according to merit and

fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall

be competitive”.

The civil service of the State and each of its civil subdivisions is divided into the

classified and unclassified service (Civil Service Law § 35). The unclassified service roughly

comprises elective offices, officers and employees of the State Legislature and other legislative

bodies, appointments by the Governor, governmental department heads, members and employees

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of boards of election, and persons employed in educational service. (Civil Service Law § 35).

The classified service of the State and each of its civil subdivisions is comprised of all

offices and positions not included in the unclassified service, which is then broken down into

four classes: the exempt class; the noncompetitive class, the labor class and the competitive

class. (Civil Service Law § 40). It is clear that this position was intended to be an exempt

position if the Civil Service Law applied to it (NYSCEF #2).

RESPONDENT KINDRON FAILS TO MEET THE RESIDENCY REQUIREMENT

Pursuant to Civil Service Law § 23(4-a) the Erie County Personnel Rule VII(1)

candidates for municipal office in Erie County are required to be “a resident of the municipality

in which appointment is to be made, or any reasonable combination of municipalities both in and

outside of New York State contiguous to the municipality in which appointment is to be made”

(NYSCEF #4).

MRS. KINDRON LACKED THE MINIMUM QUALIFICATIONS

Second, apart from the statutory requirement, the plain language of the job description

identifies the holding of a degree and license under the heading of "6. Type of license or

certificate required". The job description goes on to require being a “Certified Public

Accountant" (NYSCEF #2). The language establishing minimum qualifications could hardly be

clearer. However, Mrs. Kindron is not a Certified Public Accountant (NYSCEF #8).

For the above reasons Respondent Kindron’s appoint is in violation of the applicable Civil

Service Laws and Rules and should be vacated and future payments to her should be enjoined.

FOURTH CAUSE OF ACTION DICKSON IS PERSONNALLY LIABLE TO THE TOWN OF

WEST SENECA FOR KINDRON’S WAGES PAID TO HER UNLAWFULLY UNDER THE
CIVIL SERVICE LAW

If this Court finds that the positions of Director of Finance and/or Bookkeeper are

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positions within the classified class of the Civil Service and Respondent Kindron’s appointment

was improper then Respondent Dickson is liable to the Respondent Town of West Seneca in the

amount of the wages paid to her until the time her appointment was vacated and the payment of

wages ceased (Civil Service Law § 102(2)).

CONCLUSION

For the above reasons Respondent Meyer and Bray should be directed to produce the

records request under FOIL.

For the above reasons the Petition should be granted and Respondent Kindron’s

appointment to the position of Director of Finance and/or Bookkeeper should be vacated and if

they were made in violation of the Civil Service Laws and Rules a judgment should be entered

against Respondent Dickson and in favor of Respondent Town of West Seneca in an amount

equal to all wages paid to her.

Dated: December 10, 2023

West Seneca, New York

Yours, etc.

/S/ Daniel T. Warren

Daniel T. Warren
Plaintiff/Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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CERTIFICATION

I, DANIEL T. WARREN., as Plaintiff/Petitioner, pro se, hereby certify the following:

Pursuant to Uniform Rule 202.8-b, the above Memorandum is 3,638 words, excluding the
caption, table of contents, table of authorities, and signature block. I further certify the foregoing
complies with the 7,200-word limit for memoranda set forth in Uniform Rule 202.8-b.

DATED: December 10, 2023

West Seneca, New York

Yours, etc.

/S/ Daniel T. Warren

Daniel T. Warren
Plaintiff/Petitioner, Pro Se
836 Indian Church Road
West Seneca, New York 14224
716-288-6724

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