The following papers read on this motion: NYSCEF Doc Nos Notice of Motion/Order to Show Cause/Petition/Affidavits (Affirmations) and Exhibits 34-37 Cross-motions Affidavits (Affirmations) and Exhibits 38-41 Answering Affidavit (Affirmation) 45-47 Reply Affidavit (Affirmation) 48-50 Supplemental Affidavit (Affirmation) For a Judgment Under Article 78 of the New York Civil Practice Law and Rules DECISION AND ORDER At issue in this Article 78 proceeding is whether Respondent, one of two Judges of the Surrogate’s Court of Kings County, has the authority to suspend the Petitioner, the Public Administrator of Kings County, from handling cases in her inventory, and to authorize the Deputy Public Administrator to handle her cases in his place. The discord between Petitioner and Respondent appears to have had its genesis in May of 2019, when Respondent submitted a commentary to the Petitioner’s Annual Report for 2018. Section 207.63(a) of the Uniform Rules for the Surrogate’s Court provides that each Surrogate shall request from the Public Administrator a year end annual report. Section 207.63(b) of the rule provides that the Surrogate shall transmit the report to the Chief Administrator of the Courts together with whatever commentary the Surrogate deems appropriate. Respondent’s commentary contained numerous criticisms of Petitioner’s management of the office. Among the criticisms, Respondent commented that employees in the Public Administrator’s Office had complained to her “that the Public Administrator engages in daily repeated conduct that has produced ‘fear and intimidation’, a ‘hostile work environment’, and ‘demeaning and derogatory comments’ and ‘demeaning and derogatory actions toward individuals of African American descent’ “. Respondent noted that similar claims of racial bias and discrimination were made under the administration of her predecessor but were found unsubstantiated. Respondent recommended that the claims of racial discrimination be investigated by an “independent individual”. Respondent also criticized various deficiencies in the office’s accounting, vouchering and record keeping procedures, and also recommended that an independent accountant be employed in the Petitioner’s office. Petitioner sent a response to Respondent’s commentary, dated July 10, 2019, to the Chief Administrative Judge Lawrence Marks in which he contested Respondents comments. Petitioner stated that Respondent’s comments were based on “unsubstantiated hearsay allegations, made by disgruntled employees” and noted that the claims of discrimination made against his office under the prior Surrogate were found to be unsubstantiated. Petitioner also stated that Respondent had ignored the improvements that he had made in office procedures. He stated that such improvements included promulgation of a financial procedure manual, regular bank reconciliations and investigation, and reissuance of outstanding checks. Petitioner also stated that since January 2015, the office had completed ten years’ worth of annual audits covering the years 2008-2017. Petitioner concluded his response by stating, “However, with all due respect, with Surrogate Thompson having been in her position for just six months it is clear she neither possesses the knowledge, experience or understanding to properly evaluate the operations of the Public Administrator’s office”. Subsequently, on September 16, 2019, Respondent was presented with an application to sign an Order to Show Cause to hold Petitioner in contempt for failing to pay a legal fee to Armena Gayle Esq. The fee had been approved and ordered by Respondent based on Ms. Gayle’s work as Petitioner’s counsel in the matter of the Estate of Mikhail Kaplun. Before deciding whether to sign the Order to Show Cause, Respondent summoned Petitioner to her courtroom to explain why the payment had not been made. Petitioner had issued the check on August 9, 2019, but he had withheld it from Ms. Gayle to pressure her to take an action in a different case. Petitioner had wanted Ms. Gayle to ask a prior administrator in that other case to reissue certain checks. Ms. Gayle believed that those checks had been received by the Public Administrator’s office, while Petitioner maintained that there was no record that the checks were received. After a somewhat contentious exchange between Petitioner and Respondent on the record, Respondent delivered the check to Ms. Gayle in open court. Respondent also asserted that the Public Administrator’s Report on Settled Accounts for August 2019 falsely represented that estate was closed, when in fact the Petitioner had not delivered the check to Ms. Gayle Respondent did not sign the Order to Show Cause for contempt but indicated that she was going to suspend Petitioner from any cases in her inventory. It is disputed between the parties whether Respondent’s statements on the record on September 19, 2019 constituted a final order. A meeting took place on January 7, 2020, attended by Chief Administrative Judge Lawrence Marks, Respondent and Petitioner, in an attempt to resolve the issues between the two, but no resolution was reached. On February 20, 2020, Respondent issued a letter to the staff of the Public Administrator’s office stating that she had suspended Petitioner from her inventory of cases and that Petitioner, and some staff members, were not complying her Order. The letter further indicated that sanctions, including civil or criminal contempt, could be invoked against staff working with Petitioner on any matter involving estates in Respondent’s inventory. On May 18, 2020, Respondent issued an Administrative Order formally suspending Petitioner from handling matters in connection with estates in Respondent’s inventory. The Order provided that Petitioner was restrained from acting in any manner on any estate in Respondent’s inventory. The Administrative Order also ordered that the Deputy Public Administrator was authorized to administer the estates in Respondent’s inventory and to access the suspense account maintained by the Public Administrator’s office. On May 20, 2020, the other Surrogate of the county issued an Order countermanding Respondent’s Order and directing that the Deputy Public Administrator not take any actions or access the suspense account except at the direction of the Public Administrator. On September 18, 2020, Petitioner commenced this Article 78 proceeding challenging the suspension as ultra vires, arbitrary, capricious and an abuse of discretion. Respondent has moved to dismiss the petition as time barred, and for lack of standing. The motion also sought to disqualify Corporation Counsel from representing Petitioner. Petitioner has cross-moved for a preliminary injunction staying his suspension. Before the Court now is the motion to dismiss and disqualify, and the cross motion for a preliminary injunction. Statute of Limitations Respondent moves to dismiss the petition as time barred pursuant to CPLR 217(1). The Petition is not time barred because the decision to suspend Petitioner became final and binding when Respondent issued her Administrative Order on May 18, 2020, not on September 16, 2019 when Respondent stated orally on the record in open court that she was going to suspend Petitioner. Thus, the suit which was commenced September 18, 2020 was filed within four months of the final order. For an order to be final and binding, a determination must be “unequivocal.” (In re Brown v. New York State Racing & Wagering Board, 60 A.D.3d 107, [2d Dept 2009]). Any ambiguity as to the finality of a determination must be construed against the respondent. (Mundy v. Nassau County Civil Service Commission, 44 N.Y.2d 352 [1978]; Burch v. New York City Health and Hospital Corp., 987 N.Y.S.2d 348 [1st Dept 2014]). An agency’s position will not be considered final if it is “tentative, provisional, or contingent, subject to recall, revision, or reconsideration[.]” (In re Essex County v. Zagata, 91 N.Y.2d 447, [1998]). The statements made by Respondent on the record on September 16, 2019, quoted in relevant part below, were too ambiguous to constitute a final order. “I think at this point this is what I think that we should do: I don’t think that until we can get ourselves resolved I don’t think that you should handle my dockets at all. That is what I think. Until either we can develop a working relationship that is not hostile, that is in compliance with court order I don’t really think you should be handling my docket. I think until we can get a resolution that would probably save you and would probably save me also a lot of additional work. At this point your deputy will handle everything in my docket including the real estate… I think that to protect you and to protect me and my staff and the people of this county I think it is best for us not to basically do anything else, for you to do anything else right now on my docket until we can all have some type of meeting of the minds in regards to the attorneys, what they do and how they do it… All right then, so I think what I am going to do, I think I am going to stick with my original determination that I am going to suspend you from my docket completely. I am going to let my judge know above that that is what I have done. And what I think I am going to do is to speak with him and see what does he think, where we should go from here.” It is not clear from Respondent’s comments whether Respondent was actually suspending Petitioner at that point or considering suspending Petitioner, and whether her decision was provisional or contingent on agreement by the Chief Administrative Judge. The problem is not that Respondent did not reduce the Order to writing, (see In re Brown v. New York State Racing & Wagering Board, 60 A.D.3d 107 [2d Dept 2009]; Stack v. City of Glens Falls, 169 A.D.3d 1220 [3rd Dept 2019]; Matter of Hill Park Health Care Ctr., Inc. v. Novello, 12 A.D.3d 1010 [3d Dept 2004]; Pinnacle Bus Serv., Inc. v. State, 19 Misc.3d 998, [Court of Claims, 2008]) but that it was not clear that it was final or immediately effective. Further, Respondent’s letter to the Public Administrator’s staff of February 20, 2020, which refers to Petitioner having been suspended was not itself an order. However, even if it had constituted a final order, the Petition would still be timely as the statute of limitations period was tolled from March 20, 2020 through the filing of the Petition. (Executive Orders of the Governor of the State of New York Nos. 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.60, 202.67). Petitioner’s Standing Petitioner’s argument is in essence that while Petitioner may have standing personally, he does not have standing in his official capacity as Public Administrator because Respondent only suspended Petitioner, not the Office of the Kings County Public Administrator. While Petitioner certainly has standing personally to challenge his suspension, he has also alleged injury to his office and his ability to discharge his official duties. Specifically, the question of whether in a county with two Surrogate Court Judges a Public Administrator can be removed or suspended by one of the Judges alone, impacts the office of the Kings County Public Administrator, whoever holds the office. Similarly, the question of whether a Surrogate Court Judge can appoint the Deputy Public Administrator to handle cases impacts the authority of a Public Administrator. Petitioner in his role as Public Administrator has real and substantial interest in how these questions are decided. (see Silver v. Pataki, 96 N.Y.2d 532 [2001]; Bruno v. Bank of New York, 172 A.D.3d 992 [2d Dept 2019]). For these reasons, that part of the motion which sought to disqualify Corporation Counsel from representing Petitioner must also be denied. Since Petitioner has standing in his official capacity, and he is a city employee, he is properly represented by Corporation Counsel. (Ganzman v. Hess 273 A.D.2d 352 [2nd Dept 2000]). Petitioner’s cross-motion for a Preliminary Injunction or Stay Petitioner cross-moves pursuant to CPLR 7805 for an injunction or stay of Respondent’s Administrative Order of May 18, 2020 suspending Petitioner. The cross-motion must be denied because Petitioner has not shown a likelihood of success on the merits of his underlying claims that the suspension was ultra vires, and an abuse of discretion. Petitioner makes two arguments why Respondent’s Order is ultra vires. First, that a Public Administrator in a county having two Judges of the Surrogate’s Court can only be removed by agreement of both Judges. Second, that a Surrogate cannot appoint the Deputy Public Administer to handle the Public Administrator’s cases. The Surrogate’s Court Procedure Act (SPCA) 1102(1) states, “The public administrators of Kings, Richmond, New York, Bronx and Queens counties shall be appointed by and may be removed by the judge or judges of the court of their respective counties and shall continue in office until removed”. The statute does not specify whether both Judges of a county having two Surrogate Court Judges must act jointly to remove a Public Administrator. The text of the section does not compel an interpretation one way or the other. While it uses the disjunctive conjunction “or” which would indicate either Surrogate could remove a Public Administrator, it also uses the definite article “the” which would indicate both judges are necessary to remove. While there are no reported cases interpreting whether SPCA 1102(a) requires both Surrogates to agree to remove a Public Administrator, the legislature provided an answer in SPCA 2602(a)(1). SPCA 2602(a)(1) states, “In any county having more than 1 judge of the surrogate’s court (a) all of the powers conferred by law upon a judge of the surrogate’s court may be exercised by either of such judges”. The authority of each Surrogate to exercise powers individually has been the rule in New York County since 1920, pursuant to Section 36 of the former Surrogate Court Act and was later expanded from New York County to any county with more than one surrogate. The authority for each Surrogate to act individually was retained when the Legislature enacted the SCPA in 1966. SPCA 2602 does not contain any exception limiting its applicability to SPCA 1102; by its express terms it applies to all powers granted to a Surrogate’s Court Judge. The power to remove the Public Administrator conferred on the Surrogate Judges of Kings County may be exercised by either of them pursuant to SPCA 2602(a) and thus Respondent’s Order is not ultra vires. The potential problems of this arrangement are readily apparent. Any remedy, however, lies within the province of the legislature, not the courts. The power to suspend is inherent in the power to remove, and in this situation, where Respondent was not acting in concert with the other Surrogate Court Judge, it was reasonable for her to limit her Order to suspending Petitioner from her cases, rather than removing him from office entirely. It would be untenable and contrary to statutory arrangement to require a Surrogate Court Judge to continue work with a Public Administrator when the Judge has lost confidence in the integrity of that Public Administrator. As the Respondent had the authority to suspend Petitioner, it was not improper for her to direct the Deputy Public Administrator to handle her cases while the suspension was in effect. Like the Public Administrator, Deputy Public Administrators are appointed by the Surrogate’s Court Judges. SCPA 1103, which sets forth the powers of the Deputy Public Administrator, provides that in addition to such powers granted them by the Public Administrator, a Deputy Public Administrator may exercise all the powers of the Public Administrator in the circumstances specified by section 9 of the Public Officers Law. (SPCA 1103[2]). Public Officers Law Section 9 provides in part, “If there is but one deputy, he shall, unless otherwise prescribed by law, possess the powers and perform the duties of his principal during the absence or inability to act of his principal…”. As Petitioner herein is unable to act on Respondent’s cases by virtue of the suspension Order, the Deputy Public Administrator has the authority to act in his place pursuant to Public Officers Law section 9 during the pendency of the suspension. Abuse of Discretion Petitioner has not demonstrated that Respondent’s Order suspending him was arbitrary or capricious, or an abuse of discretion. The power to remove a Public Administrator in the City of New York is not limited to removal for just cause. Under the current statute, the Public Administrator serves at the will of the Judge or Judges of the Surrogate’s Court. Prior to 1993, the Public Administrators for the counties of Kings and Richmond served a fixed term of five years and could only be removed for cause. In 1993, the legislature amended Article 11 of the SPCA to remove the provision that the Public Administrators of Kings and Richmond counties could only be removed for cause. The amendment also abolished their fixed terms and provided that the Public Administrators would serve until removed. (SPCA 1102). This amendment brought the procedure for Kings and Richmond in line with the counties of New York, Queens, and the Bronx, where the Public Administrators serve at the will of the Surrogate Court Judge. The clear intent of this amendment by the legislature was that the Public Administrator of Kings County be answerable to and serve at the discretion of the Judges of the Surrogate Court of Kings County. Petitioner has not demonstrated that Respondent has abused that discretion. Although a Surrogate need not establish misconduct to remove a Public Administrator, Respondent, in her May 18, 2020 Order, stated that she was suspending Petitioner because she believed that he had acted improperly. Specifically, Respondent charged that Petitioner withheld from an attorney payment that Respondent had ordered in order to pressure that attorney to take an action in a different case. Respondent also stated as a reason for the suspension that she believed that Petitioner had filed a false and misleading report indicating the payment had been made, and that he had interfered with the sale of real estate of another estate. Petitioner does not dispute that he withheld the payment from Ms. Gayle because she would not direct a prior administrator in another case to reissue checks which she believed had already been received by the Public Administrator’s office. Petitioner did not deliver the check to Ms. Gayle until after she presented for signature an Order to Show Cause to hold him in contempt for failing to make the payment. Also, Petitioner’s Report on Settled Accounts for August 2019 does appear to list the estate of Mikhail Kaplun as having been closed on August 9th, when the check, though issued, had not been delivered to Ms. Gayle. While Petitioner believes his actions were justified, he has not demonstrated that Respondent’s stated reasons for suspending him were pretextual. WHEREFORE it is hereby ORDERED that Respondent’s motion to dismiss the Petition and disqualify the Corporation Counsel as attorney for Petitioner is denied; and it is further, ORDERED, that Petitioner’s cross-motion for a preliminary injunction is denied; and it is further, ORDERED, that Respondent may serve and file an answer within 20 days of service of this Order with notice of entry upon her. This constitutes the Decision and Order of this Court.
