Special to WPCNR from Michelle Schoenfeld:White Plains High School’s Theatre Unlimited will present three performances of Michael Frayn’s “Balmoral,” in the school’s new B-1 All Purpose Room, beginning January 18.
Performances are scheduled Friday and Saturday, January 18th and 19th, at 7:30 P.M., and Sunday, January 20th, at 3 P.M.

The student director is Jillian Steinhauer, and the cast includes Andrea
Busch, Mara Gay, Rose Frumpkin, David Nightingale, Sam Kurnit, Hannah Chang, Mike Giardina and Peter Turo.

Kate Farren is faculty advisor to the group.

Admission is $7 for adults and $5 for students and seniors. Gold
Pass holders are admitted free. Parking is in the area to the right of the driveway off North Street and the entrance to the B-1 Room is just across the driveway.

Posted in Uncategorized

The “Dunphy Doctrine”: Historic Brief Justifies No Holdover, No Temp

On January 3, the Common Council met to hear city Corporation Counsel Edward Dunphy’s legal advisory on the issues surrounding the Larry Delgado-Glen Hockley suspended election.
As of Wednesday morning, January 9, the Hockley appeal is still under scrutiny by the New York State Supreme Court, Appellate Division, Second Department in Brooklyn, New York. Mr. Dunphy advised WPCNR Wednesday that he expects the court is writing a major ruling, since the case will affect future elections throughout the state.
After considering Mr. Dunphy’s advisory in Executive Session January 3, the prior legal precedents, the Common Council agreed not to appoint an interim councilperson. They also voted to waive client privilege and release Mr. Dunphy’s brief to the public.

For legal buffs, WPNCR herewith presents in its entirety, one of the historic documents of city legal history: the confidential brief that lead to the short council that met for the first time this week.

WPCNR publishes “The Dunphy Doctrine” with permission of the City of White Plains Law Department:
To the Honorable Mayor and Members of the Common Council of The City of White Plains

Dear Mayor and Council Members:


The questions that presently confronts the City, whether a vacancy in the elective office of councilman has been created by a failure to elect and whether an incumbent councilperson can be a holdover, is a thorny issue and not capable of easy resolution. However, the path to the answer, although meandering at times and dotted with rough spots, is not without guideposts. Guidance is provided through decisional authorities. Meanwhile on the other side, statutory authorities provide little comfort and assistance.

Although this is the first instance in which the City of White Plains is asked to tackle this precise issue, the underlying dilemma is not of recent origin. As a matter of fact, the Town of Cherry Valley was faced with a similar problem approximately one hundred and sixty-five years ago. People ex rel Platner v. Jones, 17 Wend. 81 (1837). By no means did that one matter signal the end, or provide the answer to, every possible permutation. As we can readily observe from the City’s own experience, the question remains noteworthy and celebrated despite the passage of more than a century and a half.

A. Underlying Facts: 2001 Election Six Candidates Vie For Three Seats Elected At Large

Election year 2001 dawned in the City of White Plains as many before had. A general election was scheduled, the position of Mayor was being contested and the electorate was being asked to select three to the position of City Council out of a field of six candidates. However, as events would unfold, the election for councilman in the end was anything but routine and two and one half months after the November election, the outcome for one of the three open council positions remains unresolved.

This uncertainty finds its genesis from a voting machine in Election District 18 that jammed on election day. The machine malfunctioned after recording 39 votes for incumbent Councilman Larry Delgado. The record also demonstrates that Council candidates Michael Amodio and Robert Tuck, who were also running with Republican Party designation received in excess of 122 votes in Election District 18. As a result of this alleged defect in the subject voting machine, legal proceedings were commenced. Two council candidates, incumbent Rita Malmud and candidate Thomas Roach received the highest and second highest votes in the citywide election and were certified by the County Board of Elections as winning seats on the Common Council. Candidate Glen Hockley received the third highest vote tally and ostensibly defeated Councilman Delgado by 47 votes.

In the proceedings commenced in Supreme Court, Westchester County, the hearing judge determined that a continued election should be conducted in the City of White Plains, limited to those voters in Election District 18 who participated in the election process on November 6, 2001. Subsequent to that initial determination, on December 14, 2001, the Appellate Division, Second Department, ordered that pending the hearing and determination of the appeal from the order of Supreme Court, Westchester Count, the continued election is stayed, the Board of Elections is stayed from certifying the results of the election as it relates to Larry Delgado and Glen Hockley, and those candidates “are stayed from taking any steps towards the filing of an oath of office”. N.Y. L. J., December 31, 2001, p.21, col. 6.

B. Statutory Provisions:

White Plains City Charter

As we are certainly aware, on January 1, 1916, the laws incorporating the City of White Plains became effective. (See Chapter 356, Laws of New York, 1915). In this statutory framework, Section 14 thereof dealt with the question of vacancy in elective and appointed office. There, as is pertinent to this discussion, it was provided that:

“Except as otherwise provided in this act, if a vacancy shall occur in any elective office of the City otherwise than by expiration of term, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term… A person appointed to fill a vacancy in the office of councilman shall be a qualified resident of the same ward unless councilman are elected at large.”

Forty-five years after the City was incorporated, the Charter provision concerning vacancies was modified. In 1960 the changes included the elimination of the second sentence quoted above dealing with a ward system election and modifications to the first sentence of that particular Section. The changed first sentence read as follows:

“Except as otherwise provided in this act, if a vacancy shall occur in any elective office of the City otherwise than by expiration of term, the common council shall appoint a person to fill such vacancy until the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”

Now, forty-five years after that initial change, the section dealing with a vacancy in an elective office remains unchanged.

However, one pertinent portion of the City’s charter dealing with a vacancy in an elective office that has remained static since incorporation eight-four years ago, is that particular clause which provides “if a vacancy shall occur in any elective office of the City otherwise than by expiration of term…” Now it must be determined how the vacancy was created and whether Section 14 of the Charter or any other provision is operative.

In the instant circumstances, and after a careful review of all of the underlying facts, there can only be one possible conclusion – the vacancy was not created by a means other than expiration of term. The vacancies were created by the expiration of the terms of the three incumbent councilmen. Indeed, the second portion of Section 14 of the City’s Charter giving the Common Council the ability to appoint, does not become operative. In the absence of the condition precedent being activated, the ability to appoint cannot be invoked.

Although this question is now being addressed for the first time in the City, this issue arose in Mazzotti v. Swezey, 199 Misc. 987 (Supreme Court – Suffolk County, 1951),appeal dismissed, 278 App. Div. 959 (2nd Dept. 1951).

In that matter, the Village of Patchogue was confronted with the question whether a vacancy was created in the elective office of trustee. There, the election was at large and the voters had to select three trustees from a field of six. Since the Mazzotti v. Swezey matter was concerned with election matters in a village and not a city, it could be argued that there is no similarity and the cited case is of no value. However, any argument of that nature is quickly put to rest when the Village Law is compared to the City’s Charter. Stated simply, the language in both is strikingly similar and of no significant difference. The Village Law in dealing with a vacancy in an elective office required that “vacancies occurring otherwise than by expiration of term in a village office shall be filled by the board of trustees…” Reviewing that provision, the court determined that the vacancies were created by expiration of terms of office and for no other reason.

Therefore, it cannot be seriously argued that the portion of the City’s Charter dealing with vacancies arises to the forefront. The vacancies, as has been demonstrated, arose by expiration of the terms of the incumbents. Since the triggering event was the end of elected terms, the ability of the council to appoint does not materialize.

C.Statutory Provisions: State Statute Public Officers Law

Fundamentally, there are two provisions in the Public Officers Law that could have possible implications concerning a vacancy and holding over. However, after close analytical scrutiny, it is my considered opinion that neither is controlling.

Section 30 of the Public Officers Law is entitled “Creation of Vacancies”. This particular section enumerates eight instances in which a vacancy is created. Interestingly, this particular statue does not detail that a vacancy in office is created by a failure to elect. As a matter of fact, it has been specifically determined that this section does not apply in such a situation and thus, no vacancy is created by operation of law. People ex rel Stalter v. Lynch, 219 App. Div. 1 (2nd Dept. 1926), affirmed 245 N.Y. 534 (1927).

The more troublesome section of the Public Officers Law is Section 5 which, as its title indicates, is limited to holding over after expiration of term.

In relevant part, this statute provides:

“Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall unless the office shall terminate or be abolished, hold over and continue to discharge the duties of this office after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”

At first blush, this particular statute would appear to be controlling in the present instance. However, this patina fades after a searching analysis and it can only be concluded that there cannot be a holdover.

D. No Holdover Permissible Where The Vacancy Is Not Capable Of Being Identified With A
Particular Incumbent

As previously mentioned, People ex rel Platner v. Jones (supra) was an early decision which grappled with the issue of holding over.

In that matter, the then office of constable was an elected office in the town of Cherry Valley. The term of office was for one year and the question arose whether a certain constable was a holdover after an election in which the voters were to elect more than one candidate to several open positions. The hearing court determined that in an instance of that nature, where the vacancy in office could not be identified with an individual, there was no holdover. The language of the court is instructive and remains as accurate today as on the date of its writing. There, Judge Bronson wrote:

“Where there are several town officers of the same kind as constables, assessors, commissioners of highways, &c., if the electors at their annual meeting choose one or more officers of the particular class, although less than the whole number authorized by law, all the incumbents of the office for the previous year are superseded. If all are not superseded, none of them are; for it is impossible to say whose place in particular the person newly elected is to take. The consequence may be, that when the number of officers, as in this case, is limited to three, there may in fact be five persons exercising the office at the same time.

It is said that both Sterns and Butler as well as the defendant may have been constables in 1835, and then if Sterns and Butler only were chosen in 1836, it may be true, as the plea alleges, that no one was chosen in the defendant’s place. This argument supposes that Sterns was elected in his own place and Butler in his; and thus the defendant’s place was left untouched. But I think neither of them was chosen in his own place, or the place of any other person in particular, but, was simply chosen to the office. Except in the case of justices of the peace, the electors can only choose an individual to a designated office; they have no legal means of deciding whose place he shall take.”

This court clearly recognized the quagmire in such a situation where there are multiple expirations of terms in a municipal office, is there a vacancy or vacancies created and which, if any, of the incumbents is entitled to holdover in office. It was concluded that where the particular vacancy is not identifiable, there cannot be a holdover.

The identical result was likewise reached in Pansmith v. Williams, 201 Misc. 759 (Supreme Court – Nassau County, 1951).

In the annual election in the Village of Island Park two trustees received an equal amount of votes. This tie created a vacancy for one office of trustee and based on this, the mayor appointed an incumbent as a holdover. In reviewing these facts, Special Term rejected the notion that Section 5 of the Public Officers Law was controlling. In reaching this conclusion, Judge Houley wrote that “It is well settled that in the case of an office, such as trustee, in which the terms of two incumbents expire at the same time, that no one is in a position to determine which one of the trustees is entitled to holdover”.

Once again the court determined that where the vacancy was incapable of determination, there cannot be a holdover.

The 1951 village election in the Long Island community of Patchogue proved to be an interesting annual contest and provides guidance for us.

The configuration of the village government was similar to that of The City of White Plains with a mayor and a six member board of trustees. In this particular election, the terms of three trustees were expiring and there were six candidates on the ballot to fill the office of the three trustees. Incumbent Trustee Briscoe was re-elected with the highest number of votes. Candidate Payne received the second largest vote total and candidate Mazzotti received the third largest total. Incumbent Trustees Mason and Mapes were defeated, with the latter receiving the fourth largest vote total.

Prior to the expiration of the terms of office of the incumbent trustees, Village Trustee Mason, who had not been elected, resigned. It was also argued under Village Law that since candidate Mazzotti did not own real property in the village, he was not eligible to hold office. Needless to say, litigation was commenced.

In the initial round of legal maneuvers, and as is pertinent to the facts and circumstances now before the City, Special Term concluded that the trustees could not declare incumbent Mapes, the candidate with the fourth highest vote tally as trustee, because of the disqualification of Mazzotti. The hearing court rejected outright the argument that the holdover provision of Section 5 of the Public Officers Law was applicable. In making this determination, the court found that:

“Such may have been the case if there was only one vacancy filled at the March 20, 1951 election. However, there were three incumbents whose terms expired, and there were six candidates contesting for the three offices to be filled. It cannot be said that Mapes was the incumbent of the office for which petitioner Mazzotti received the majority vote. There being three vacancies, the court cannot determine who the incumbent is.” Mazzotti v. Swezey, supra”.

However, although the above quoted holding is a correct statement, the court neglected to consider one factor – the resignation of one of the incumbent trustees. When that factor is placed in the ingredients, the result changes, as recognized by the Appellate Division in a companion proceeding. Mapes v. Swezey, 199 Misc. 997 (Supreme Court – Nassau County, 1951); reversed, 279 App. Div. 660 (2nd Dept. 1951).

To summarize, the reviewing court determined that candidate Mazzotti who came in third in the 1951 election, but did not own real property in the Village as required, was ineligible to hold office. The next matter to be resolved was whether Mapes, the incumbent with the fourth largest tally, was a holdover. The appellate division unanimously concluded that the incumbent was a holdover due to the vacancy created by Mazzotti’s disqualification and because “there being no other.” The last clause is particularly important and the incumbent could be a holdover because the vacancy was clearly identifiable. Recall that there were three incumbents who sought re-election – Briscoe, who was re-elected, Mason who resigned prior to the expiration of the term of office, Mapes who was defeated but declared a holdover. The other seat was filled by Payne, who received the second highest vote in that 1951 election.

This crazy quilt election in that Long Island village is instructive and illustrative on several fronts. Initially, where the vacancy in office cannot be identified with any particularity, there cannot be a holdover. In that 1951 election, as there was in the recent City election for Common Council, there were three positions to be filled from a field of six candidates. Conversely, the vacancy was ultimately capable of being identified because two vacancies were filled through the election process., leaving an identifiable vacancy created by a resignation, leaving Mapes the defeated incumbent as a holdover. Under those circumstances, the holdover provision in the Public Officers Law became operative and was invoked to maintain the continuity of government.

As we shall next see, Long Island has been fertile ground for election battles and particularly where there are six candidates for three positions to be elected at large. This time the contest occurred in the Town of Brookhaven and the year is 1964. Foley v. McNab, 42 Misc. 2d. 460 (Supreme Court – Suffolk County, 1964).

In this latest set of facts, the three incumbent councilmen whose terms were to expire on December 31st of that year all lost their bid for re-election. Incumbent John Foley received the fourth highest number of votes and his fellow incumbents were fifth and sixth in that election year. To complete the setting, two other facts are important to note.

First, candidate Francis Giaccone received the third highest number of votes in that election. He was ineligible for office because he was not a record owner of real property, as required by statute. Second, prior to expiration of their office, the two defeated incumbents resigned in an attempt to compel the conclusion that their colleague Mr. Foley, who received the fourth highest number of votes, was the only person available to fill the vacancy and should be a holdover.

Special Term reviewed all of these facts and determined that Public Officers Law Section 5 did not apply because the vacancy was unidentifiable. Moreover, the court rejected the legislative maneuver where the two defeated incumbents resigned in an attempt to force a contrived interpretation of the statutory holdover provision. In dealing with the resignations, the court reasoned that:

“However, there is no efficacy in the maneuver. It may appear reasonable that the vacant office should be continued to be filled by the highest vote getter of the defeated candidates, but there is no authority for the employment of the device used here or any other method of selection to determine who should fill the vacancy in a situation of this kind”.

Next, the hearing court dispatched with equal ease the argument that a vacancy existed and the incumbent should be a holdover. In this regard, Justice Munder wrote:

The purpose of Section 5, Public Officers Law is to insure a continuance of government where a vacancy occurs by expiration of term and there is a failure of election or appointment. It can be employed whenever the office vacated can be identified with a particular incumbent. In such a case the result would follow automatically. That would have been the situation if the Town of Brookhaven had established the ward system for the election of councilmen. Where, as here, the office vacated cannot be identified it cannot be said that any of three incumbents is entitled to hold over [citation omitted] nor can they choose among themselves or effect the same result by all but one resigning. Because they perform no duties independently of the town board (apart from delegated duties by direction of the board) and the town board can function with less than its full complement, there will be no interruption of government where only one councilmanic office is vacant.

To the same effect see, 1964 Opinions of the Attorney General at page 96 – involving interpretation of the holdover provision of the Public Officer Law concluding that Section 5 of the Public Officers Law is not operative where the vacancy cannot be identified with an incumbent.


The above recitation demonstrates clearly that this is not the first instance where municipal entities have been confronted with the issues created by abnormalities in the election and legislative processes. When is a vacancy created, is not a novel issue; nor is the invocation and interpretation of the controlling provision of the Public Officers Law, a question of recent vintage. Importantly, as you can see, the holdover provision is not nearly as clear cut as first envisioned. As we have seen, its operation is very fact specific and it can be concluded that where the vacancy is identifiable, an incumbent can holdover. But in the facts confronting the City of White Plains, the vacancy certainly is not identifiable. Consequently, there cannot be a holdover.

An attempt to argue that a vacancy is identifiable in White Plains because incumbent Rita Malmud was re-elected and candidate Thomas Roach was elected and both certified by the Board of Elections, can be made. Mathematically it could be seen that these two were successful, in that they have filled two of the three positions on the Common Council, therefore, the third position is open and identifiable.

This argument has surface appeal, but when that strata is pierced, that argument evaporates rapidly.

The vacancy is unidentifiable because two incumbents remain, Mrs. Oliva and Mr. Delgado. The fact that Mrs. Oliva did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.

Additionally, we must also recognize that the Appellate Division instructed that Messrs. Delgado and Hockley are presently barred from taking any steps towards the filing of an oath of office. This directive must be tempered by the realization that a holdover is not required to execute and file an oath of office. Vescio v. City Manager of Yonkers, 69 Misc. 2d 68 (Supreme Court – Westchester County, 1972), affirmed, 41 A. D. 2d 833 (2nd Dept. 1973).

As a final matter, a controlling consideration is what does the City do without its full complement of legislative officials? This answer was provided by the Foley court ( Foley v. McNab, supra) wherein Special Term noted that this fact was of little consequence because the government does not fail to function with less than seven members. The work will proceed with six, until a successor is chosen and there will be no interruption in government.

Corporation Counsel

Dated: January 2, 2002

The text was written by Edward Dunphy, City Corporation Counsel, and researched by Mr. Dunphy and the City of White Plains Law Department.

The original document marked “confidential” was presented January 3 to the Common Council, and lead them to the decision to continue with a 6-person council, instead of appointing a seventh temporary councilperson.

Posted in Uncategorized

Delfino, Malmud, Roach Sworn. NYPH Bout Begins. Med Mecca Seen.

Mayor Joseph Delfino was sworn in for his second consecutive term as Mayor of White Plains Monday evening. Rita Malmud took the oath of office for her fourth term as a Councilperson. New Councilman Thomas Roach was sworn in for his first term at the first Common Council meeting of the new year. It was also the first-ever 6-person Council. Susan Habel was appointed Commissioner of Planning.

The Opening Bell for Round One of a Three-Round Match between New York Presbyterian Hospital and the Common Council sounded.

The Main Event was the opening of the Public Hearing on the New York Presbyterian Hospital Draft Environmental Impact Statement, which was adjourned to February 4 after 3-1/2 hours of presentation and comment.

It featured Dr. Arthur Klein, Chief Operating Officer of New York Presbyterian Hospital, heading a lineup of powerful speakers extolling the bright future for White Plains if the proposed hospital biomedical complex on any of four possible sites were to be approved and built.

In a one-hour to-the-minute presentation, hospital executives painted a seductive picture of burgeoning economic riches to the Common Council and a live tv audience. The riches would result, they said should the proposed proton accelerator cancer treatment facility and biomedical research facility on the Bryant Avenue, Bloomingdale Road be built.

They promised the complex would bring new residents to fill the downtown luxury apartments and buy White Plains homes, and professionals from all over the world to fill our new hotel on Bank Street.

They assured the council that the facility was not treatment intensive with most visitors and patients being essentially “medical tourists” with brief stays.

They promised 958 new jobs ranging from $50M to over $100,000 per year salaried positions, plus 1,000 more jobs throughout Westchester County.

White Plains a biomedical player?

Patricia Ardigo, of Insignia ESG, a broker who puts together biomedical research clusters described White Plains as the entry for New York State to catch up with New Jersey, California, Texas and North Carolina in the fast-growing biomedical research industry.

Paul Bergins, in one of his most animated and persuasive presentations we have seen him make, promised a “medical mecca” in the center of White Plains.

A phalanx of experts in water treatment, utilities, architecture, and economic development painted a picture of a complex with no environmental impact, that could handle the traffic with 2 new traffic light adjustments on Bryant Avenue and parking prohibited from the Mamaroneck Avenue and Bryant vicinity.

Dogged Opposition Surfaces, accusing hospital of master plan ambiguity, danger of segmented development, zoning subterfuge.

Allan Teck of Concerned Citizens for Open Space was the first speaker to take the floor claiming the hospital proposal had failed to provide a detailed master plan as required by zoning as part of the DEIS. He warned the Council against “segmented” development of the property.

Marc Pollitzer, speaking as President of the North Street Association, chided the hospital for quoting only half of the 1997 Master Plan “vision statement” for the New York Presbyterian Hospital property, which called for passive recreation, and fields on the property. He asked the question whether the Master Plan proposed by the hospital in spring 2000 was still in effect and how it extended past 2006.

He pointed to the former proposed Marrott site and asked why it could not be combined with an adjacent site to place the two buildings there. Pollitzer raised the issue that the intended research use with the private sector might not qualify as hospital use as allowed in the city agreement with the hospital dating back to 1927.

Barbara Benjamin said she felt like “Alice in Wonderland having just stepped through the looking glass.” She said the site choices offered by the hospital were “in your face, and they talk about taking less trees, well, if they follow the Master Plan, they’re going to tear them all down.” She warned against segmented approval of portions of the hospital master plan, and said “it is going to take courage on the part of the Council to tell the hospital they don’t have the right to determine the future of our city.”

Thomas Whyatt, CCCOS lawyer, allowed that the project had some benefits, and brought back an argument 30 years old: the hospital was trying to mask a zoning change by asking for a special permit, instead. (The hospital is zoned residential.) Whyatt described the hospital as trying to “ram this down our throats,” and said it twice. He raised the spectre of segmented development, and the need for a detailed master plan. He twice described this as an “industrial complex.”

Patti Indelicato made the most pointed and overlooked argument of the evening and that was the impact of the December- approved Fortunoff complex on Maple Avenue and Bloomingdale Road. She pointed out how gridlock was in effect over the holidays at The Westchester and Saks Fifth Avenue without Fortunoff in place. She felt this had to be considered in weighing the effects on entry and egress at the complex from Bloomingdale Road.

Two residents argued in favor of the plan and its benefits to White Plains. One is the owner of Colin Systems and the other a resident of the Gedney Farms neighborhood (a CNR reader reports this person is an employee of the hospital and lives in Bryant Gardens), who felt the treatment of cancer was a worthy endeavor that far outweighed the environmental concerns. Several others asked that the hearing be kept open.

Council reaction: Not impressed

Rita Malmud expressed a long list of questions she wanted the hospital to address, chief of which was the site where the Marrott senior treatment facility was to have been built. She wanted answers to the hospital intentions for that property, as well as answers why the sites on the northern portion of the hospital property on I-287 could not be used for the two buildings proposed. She also raised worry about the storm water ponds being grounds for West Nile virus-bearing mosquitoes.

Benjamin Boykin centered his question on the abandoned Marriott site, too, asking answers as to why it could not combine with an adjacent site to house the complex away from the forested areas.

William King made a strong plea for a site behind the Memorial Methodist Church. He said the Hospital has advised it needs those sites for staff housing, but said he wanted an explanation for rejecting that area.

Mayor Delfino, commenting to WPCNR after the meeting, said he would direct Planning Commissioner Susan Habel to ask the hospital to answer the questions raised by the council and by Mr. Whyatt on the zoning by the next meeting. The hearing was adjourned to February 4.

Susan Habel installed as Planning Commissioner

Amid much praise from each member of the Common Council, Susan Habel capped a 16-year career with the city, by being appointed Commissioner of Planning, succeeding Mike Graessle. Ms. Habel savored her triumphant moment with shining eyes and the quiet dignity that surrounds her presence, as a drumroll of applause that greeted the Mayor’s announcement of her swearing in.

BID Assessment Increase Hearing Closed, Cleared, on Way for BID Business Owners.

The effort by the Downtown Business Improvement District to raise their assessment hearing appeared on track, as the council voted to close the hearing and cleared the way for the increasement in the assessment from $300,000 to $500,000.

However, BID Executive Director, Mark Scuyler, took pains to point out that this was not an all-at-once increase, that it would be phased-in, we assume, as needed by the BID Board of Directors. Scuyler said that the Operation Clean-Sweep where yellow shirted squads clean the downtown business district costs the BID $130,000 and that part of the need to have the ability to assess higher was to pay for this popular program.

The owner of Nicky’s Pizza took the podium and roundly criticized the BID for essentially creating jobs for its executives, and doing nothing to bring business to merchants within the district. She described the BID as “a scam,” pointedly criticizing the BID New Year’s Eve Party for awarding the catering contract to Sam’s of Gedney way which is not located within the BID district.

No explanation was given by Scuyler for this, and Scuyler had left the meeting before WPCNR could ask him about this. The critic also sparred with feisty style with Councilperson Malmud over the need for the BID’s street cleaning efforts. The owner said she had never been notified of BID meetings. The Mayor urged her to talk directly to Mr.Scuyler.

In other business.

The Council approved the renewal of a three year permit for Cafénani.

Cafenani fared better than Kelly’s Thirsty Turtle Pub which has been seeking an approval for outdoor patio in the rear of the East Post Road bar for nine months. At the eleventh hour, the owners of the Sloan Bar building balked at closing their driveway off with a chain, and The Esplanade requested a vestibule be built to restrict the amount of noise. The Council moved this to Wednesday morning when they would vote on the resolution after the Thirsty Turtle and Sloan Bar had signed written agreements calling for a security guard, provided by Mike Kelly, owner of the Thirsty Turtle to prevent potential Turtle customers from parking illegally in the Sloan Bar Lot.

William King announced the Traffic Department and Traffic Commission Annual Reports, and Youth Bureau Annual Report, and presented a 15-minute critique of traffic suggestions he wished the traffic department would look into, among them, on-street overnight parking, slant parking on Mamaroneck Avenue, more 4-way stops at key intersections even though 4 out of 5 requests made by the city of the state were rejected in the last year.

WPCNR will provide more detailed coverage later in the newsday.

Posted in Uncategorized

“WPW” Reviews Events of 2001 Friday Night at 7:30

White Plains Week’s Alex Philippidis, of Westchester County Business Journal and John Bailey, the CitizeNetReporter conduct a review of 2001 in White Plains Friday night at 7:30 PM on Public Access Channel 71.
Philippidis and Bailey review the economic and news implications of the year for the city in what was easily the most news-packed year for the city in a decade. Exclusive pictures and exhibits of notorious documents will be displayed in a fast-moving half-hour that names names, gives the figures, and highlights the heroes and villains of 2001 within the City Limits.

Philippidis gives his unique trackings of the economy, developer profiles, and intriguing historical background on the key projects and players around the city, while Bailey highlights the hard news stories that shaped the city that will be in 2002.

The 45th show of White Plains Week begins at 7:30 PM on Public Access Channel 71.


Posted in Uncategorized

Consultants Start Building Superintendent Profile this week.

The search for a new Superintendent of Schools will gather intensity this week when Dr. John A. Whritner and Dr. Deborah Raizes, two senior associates from Hazard, Young and Attia, will make the first of four public fact-finding appearances in White Plains to develop community residents’ and leaders’ opinions on key school issues in the city and the characteristics they want to see in the next Superintendent of Schools.
The four Forums will begin Thursday, January 10 at White Plains High School at 7:30 PM, continue on Friday, January 11 at Education House at 10:00 AM, Sunday, January 13 at St. Bernard’s Church at 12:30 PM, where a Spanish language interpreter will be available, and conclude Wednesday, January 16, at Bethel Baptist Church at 7 PM.

Community Groups Have Special Meeting on January 16 at 2

According to Michelle Schoenfeld, Clerk for the Board of Education, Dr. Whritner and Dr. Raizes will alternate hosting the four community forums. Ms Schoenfeld reports to WPCNR various “community leaders” have been invited privately to provide their input directly to the two consultants in a meeting at Education House on Wednesday, January 16 at 2 PM.

Schoenfeld said these community groups include all members of the Common Council, all city commissioners, and representatives from the Council of Neighborhood Associations, the Rotary, the Council of Churches, Hospital Auxiliary Board, the Womens Club and other organizations, of whom she did not have a list readily available. School-Related Organizations Consulted, too.

In addition, she said, Drs. Raizes and Whritner are or will be meeting privately with PTA presidents, the PTA Council, District staff groups, former Board of Education members, the Civil Service Employees Association, the White Plains Teachers Association, and high school students to gather their views on the issues and the requisite skills of a future superintendent.

Focus asked for.

Key community organizations have already received questionnaires from the School District asking the groups to respond to the following questions.

1. What do you consider to be the two or three most significant strengths of the White Plains Public Schools?

2. What do you consider to be the two or three most important issues or concerns facing the White Plains Public Schools?

3. Please share two or three characteristics which you would like to see in the new White Plains Superintendent of Schools?

Profile Developed from Forums, Presented January 29

From these forums, Drs. Whritner and Raizes will construct a profile of the personal attributes and areas of expertise and track record results for the kind of superintendent they hope to attract. Their final “Superintendent Profile” is scheduled to be presented to the community on January 29 at Education House at 8 PM.

No National Advertising Yet. Position Announced nationally on HYA Website

All advertising for the Superintendent of Schools position is being handled by Hazard, Young & Attia. Presently the position of Superintent of Schools has been listed on the HY & A website as one of their Executive Searches, since January 5, so word has gone out nationally that the position is available. HY & A consultants were not available to ask whether the firm has already received interested queries about the position. However, WPCNR has been told that Dr. Raizes will be in touch with us, as she has been traveling.

When you click on the White Plains Public Schools Superintendent search listing on the HY & A website, you are directed to the White Plains Public Schools website.The Hazard Young & Attia website may be viewed at

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NEW POLL: Tell Consultants Issues Facing the School District

The consultants from Hazard, Young & Attia, the search firm hired by the City School District to present candidates for a new Superintendent of Schools are coming to town January 10, 11, 13 and 16 to hear White Plains speak out.

The new WPCNR Poll at the right gives you a chance to target the issues of most concern to you. Simply click on the premier issues you care the most about. You can vote more than once, but only once a day.
Next week two consultants will be in White Plains to hear the people of White Plains speak at four Superintendet Search Public Forums on January 10, at the High School at 7:30 PM, January 11 at Education House at 10 AM, January 13 at St Bernard's Church at 12:30 PM, and at Bethel Baptist Church on January 16 at 7 PM.
WPCNR hopes the community attends these forums and gives the consultants a lot to think about what is unique about White Plains and needed in the school district as we chart a new course.

Dr. Deborah Raizes and Dr. Richard Whritner from Hazard, Young will alternate at these venues to hear from parents, citizens, students, about your concerns for the school district, the qualities, skills, expertise and extraordinary specialties a new White Plains superintendent should have.

WPCNR thought we would stimulate your thinking and invite you to tell us your first thoughts on 12 general areas we think might be on your mind.

Students — you be sure to vote, too.

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“Dunphy Doctrine” Convinces CC to Stay at 5. Delgado No Holdover

Special to WPCNR A crash Common Council meeting held in Executive Session Thursday night, resulted in the Common Council holding off appointing a sixth interim councilperson to fill the seat currently being contested in Appellate Court. The Council will conduct Monday evening’s meeting with five councilpersons and the Mayor with one seat vacant.
A 9-page Confidential Brief by city Corporation Counsel Edward Dunphy, drawing on 5 cases from 1837,1926,1951, 1964 and 1972, cites city inability to determine which council seat is vacant, (former Councilperson Pauline Oliva’s seat or Larry Delgado’s seat) as the crucial factor in preventing Larry Delgado from continuing on the Common Council.

This ambiguity of whose seat it is, prevents the Public Officer’s Law from kicking in, allowing Mr. Delgado to holdover, in Mr. Dunphy’s analysis of these five decisions.

According to the key conclusion of the “Dunphy Doctrine,” The fact that Mrs. Oliva (Pauline) did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a (Delgado/Oliva) holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.”

The Public Officers Law holds that in a vacancy occurring through a normal expiration of term, with successor not chosen an incumbent holds over. (See previous WPCNR article on the holdover issue.)

Confidential Brief Delivered Thursday Morning to the Seating Five

The confidential brief analyzed the issue of a Delgado “holdover,” or a council interim appointment, was hand-delivered to all five seating councilpersons Thursday morning: Benjamin Boykin, Jr., Robert Greer, William King, Rita Malmud, and Thomas Roach. All but Robert Greer agreed to an Executive Session Thursday evening to discuss the issues with Mr. Dunphy. Mr. Greer, according to our correspondent, had a prior commitment he could not break.

Our correspondent advises us that the meeting apparently was held off until 8 PM, because city law requires that there be six hour notice before any meeting of the Common Council is held.

Dunphy brings Council Up to Date on Election Case

The meeting began in the Mayor’s council room, with Edward Dunphy taking center stage. Dunphy reported that as of 8 PM no decision had been reached in Appellate Court regarding the Adam Bradley-filed appeal of Judge Francis Nicolai, Jr.’s call for a continuation of the election. Dunphy, our reporter says, revealed that in the early years of his career, he was a law clerk in the Appellate Division.

Dunphy said, the Appellate Division usually moves very quickly in an election matter. He expressed surprise that the court will have had the Delgado/Hockley matter before it for three weeks as of Friday morning.

Dunphy is reported saying that no matter what the Appellate Court decides, it was likely that the losing interest would appeal to the Court of Appeals in Albany. Then the Council moved to Executive Session to discuss Mr. Dunphy’s brief.

After executive session briefing, Council releases “Dunphy Doctrine” to Public. Basis for their decision.

According to our CNR reporter, “The vote that was taken, after the public was invited back into the room (Mayor’s Council Chamber), at the conclusion of the executive session, was for the Common Council to waive the attorney/client privilege and to now authorize the release to the public of the heretofore confidential memo prepared by Corporation Council Ed Dunphy and which was distributed solely to the Common Council.

Boykin says no action contemplated. Awaiting Appellate Court Decision.

Our correspondent reports that after the executive session ended, Councilman Benjamin Boykin told reporters that “Dunphy’s memo spoke to the inability of former Councilman Delgado to take the position that he is a ‘holdover’ councilman and further (Boykin stated) that the Council would not be moving in the direction of appointing an individual, themselves, to fill the empty seventh seat on the Council.”

Our reporter adds that “the White Plains Common Council will be further instructed and guided by the eventual decision which will be issued by the Second Department of the New York State Appellate Division.”

Short Council has to vote ordinances twice to put them into law.

WPCNR’s correspondent reports Dunphy strongly urged the council not to appoint an interim councilperson. Our man on the scene advised that the Council will have to hear ordinances twice before they can be voted into law, as a consequence of having a “short” council. A meeting as been scheduled for 8 AM Wednesday, he says to hear a second reading of an ordinance on the Monday Council agenda.

Mr. Dunphy’s conclusion to his brief confirms this:

…When is a vacancy created, is not a novel issue; nor is the invocation andinterpretation of the controlling provision of the Public Officers Law, a question of recent vintage. Importantly, you can see, the holdover provision is not nearly as clear cut as first envisioned. As we have seen, its operation is very fact specific and it can be concluded that where the vacancy is identifiable, an incumbent can holdover. But in the facts confronting the City of White Plains, the vacancy certainly is not identifiable. Consequently, there can not be holdover.

Mr. Dunphy further reasons against vacancy identification,

An attempt to argue that a vacancy is identifiable in White Plains because incumbent Rita Malmud was re-elected and candidate Thomas Roach was elected and both certified by the Board of Elections, can be made. Mathematically it could be seen that these two were successful, in that they have filled two of the three positions on the Common Council, therefore, the third position is open and identifiable.

This argument has surface appeal, but when that strata is pierced, that argument evaporates rapidly.

And makes his play–

The vacancy is unidentifiable because two incumbents remain, Mrs. Oliva and Mr. Delgado. The fact that Mrs. Oliva (Pauline) did not seek re-election is not controlling. The controlling principle is that there is more than one incumbent and as a result, a vacancy is not capable of being identified and there cannot be a (Delgado/Oliva) holdover. This result might have been different if one of the incumbents had resigned. This last consideration is not before us and is of no consequence.

A nod to the Appellate Court…

Additionally, we must also recognize that the Appellate Division instructed that Messrs. Delgado and Hockley are presently barred from taking any steps towards the filing of an oath of office. This directive must be tempered by the realization that a holdover is not required to execute and file an oath of office…

Mr. D. Concludes With a Strong Advisory Not to Appoint an Interim Replacement Councilperson

As a final matter, a controlling consideration is what does the City do without its full complement of legislative officials? This answer is proved by the Foley Court, wherein Special Term noted that this fact was of little consequence because the government does not fail to function with less than seven members. The work will proceed with six, until a successor is chosen and there will be no interruption in government.

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Zoning Board Bulletins: Swimming Pool Agony, Schechter Day Care.

Updated, New Information 1/6/02:On a light calendar Wednesday night, the Zoning Board of Appeals appeared willing to consider a variance in a setback to accommodate a modest swimming pool.

Solomon-Schechter School of Westchester made progress on establishing a day care center at their Rosedale campus for on-staff teachers only.
In a variance request being closely watched by residents who long for swimming pools, (if only they had a bigger yard), the Zoning Board of Appeals doggedly attempted to defend the 15 foot setback restriction in the request of a resident on Sterling Avenue hoping to build an above ground swimming pool.

The resident is seeking to install a 15-foot diameter pool, (owner had mistakenly referred to this as a 15-foot radius, as first reported), creating a setback of 8 feet instead of 15 feet, which the ZBA calculated to be a 45% variance they were not comfortable with approving. Paul Landesman , ZBA member, cautioned that the Board was reluctant to give such a variance because “every one else would want one.” Larry Fleischman, another ZBA member, pointed out that the Board has never given this large a variance.

The owner already has a 3-car garage on his property and seeks the 15-foot wide pool in a position by his outdoor deck, in order to preserve his workshop already existing in one of the garage bays, along with two bays where his antique cars are stored, to avoid consistently moving his two vehicles which he parks in the driveway.

He advised the board that the 15-foot wide pool could not be built into his existing off-the-house deck because of structural supports under the existing deck. His next door neighbor, and the owner’s mother, (an employee of the Planning Department, who administers Community Development funds and lives next door to the owner’s yard), testified on the owner’s behalf that the 8-foot setback would not bother them, and that the resident had done a lot to improve the appearance of his property.

The ZBA suggested several alternatives: 1.) Switching the workshop from one garage bay to another. 2.) Making the pool part of the housedeck. 3.) Decreasing the size of the pool from 15 feet wide to 12 feet wide.

After discussion, the owner said he would look into reducing the size of the pool to a diameter of 12 feet (6 foot radius), (suggested by a representative of the Building Department), which the zoning board appeared to agree to be willing to consider.

The 12-foot diameter still would result in only a 3-foot variance. The matter was continued to the February 6 meeting.

Solomon-Schechter Nears Day Care Approval February 6.

The ZBA closed the public hearing on the Special Permit to allow operation of a staff-only day care center. Cecilia Bikkal, Chairperson of the ZBA, promised a resolution at the Board February 6 meeting which would put “teeth” in the traffic management agreements the school has made with the Rosedale Residential Assocation and the city.

Elliot Spiegel, Headmaster of the school, said the school had agreed to the requests of the neighborhood association regarding the establishment of the Day Care Center.

He said the Day Care Center would be for no more than 12 children. All twelve would be offspring of staff employed by Solomon-Schechter. He said the center would be open only on a first-come, first-served basis, and that he would be willing to limit it to six children from the Greenburgh campus and six from the Solomon-Schechter Rosedale campus, or a 4-8 mix respectively.

Linda Harelick, Vice President of the Rosedale Association, pushed for tying the Day Care Center approval to enforcement of the Traffic Management Plan. (Solomon-Schechter agreed with the city to no standing or parking on the Dellwood and Elm Street right of ways leading to the school.) Harelick alleged these rules were violated flagrantly during September of 2001 when Solomon-Schechter began the current school year.

Hillary Markowitz, Solomon-Schechter parent liaison to the neighborhood, who personally educates Solomon-Schechter parents on the school-city policy towards public streets in the area, said the violations occurred as a result of parent World Trade Center anxiety after September 11, when more parents than normal wanted to pick up children personally. Ms. Harelick said the violations continued at least through September 25. Ms. Markowitz said the situation was now back to normal.

Ms. Bikkal, ZBA Chairperson, said there seemed to be great movement on both sides towards a solution, and the Zoning Board would craft a resolution regarding establishment of the Day Care Center at the February 6 ZBA meeting.

White Plains Honda put on Hold

White Plains Honda, seeking to rent a vacant building for a showroom at 350 Central Avenue, was told it had to work out a resolution of Traffic Commissioner Ted Gammon’s concerns that the proposed driveway into the facility had to be widened, and was continued to February 6. Honda legal representative, William Null, citing the fact that the paperwork on the facility had been in since October, pleaded with the Zoning Board to approve the usage, since his client was attempting to sign a lease. The Board refused.

Commenting to us afterwards, Ms. Bikkal, said that White Plains Honda application had had to be reviewed by the Building and Traffic departments. She reported the Zoning Board had just received those comments Wednesday, and therefore had to review them with Mr. Gammon, and could not in good conscience, approve a usage without knowing Mr. Gammon’s concern.

In other matters of note

The German School request for a Special permit to increase their student cap and Special Permit to configure an access drive through 800 North Street was continued to February 6.

Metro Auto Tech, Inc. on 7 Intervale Street to February 6.

Ronald Presser’s deck variance at 57 Ethelridge was postponed to February 6.

The Starr family room variance at 82 Havilands Lane did not appear. The representative from the Building Department gave the opinion that they had revised their plans so as not to require a variance.

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FLASH! Dunphy Issues Secret Ruling on Council Seating. Council Meets at 8

Special to WPCNR:The Mayor’s office announced Thursday that Corporation Counsel Edward Dunphy has issued his opinion on Common Council right to appoint an interim councilperson in a hand-delivered letter to each Council Member. The letter presents Mr. Dunphy’s opinion on the composition of the first Common Councilmeeting of the new year Monday evening.
The Mayor’s Office announced a special meeting of the Common Council for 8 o’clock Thursday evening in Executive Session to discuss Mr. Dunphy’s opinion and the issues it raises.
George Gretsas, the Mayor’s Executive Officer, told WPCNR Thursday morning that Mr. Dunphy’s legal opinion on whether or not the council had the right to appoint an interim councilperson to fill the contested third seat on the Common Council, had been hand-delivered to members of the Common Council Thursday morning: Rita Malmud, Tom Roach, Benjamin Boykin, William King, Robert Greer.

Executive Session Called to Mull Dunphy Directive

Gretsas told WPCNR, “The Common Council will meet Thursday night at 8 to discuss the letter and ruling, and if they agree the letter (Dunphy’s) will be made public.”

City Hall refused to release the contents of Mr. Dunphy’s letter, citing attorney-client (Common Council being the client) privilege.

Delgado Oliva Not In Meeting

Asked if Pauline Oliva and Larry Delgado, previous incumbents of the Council, whose terms expired Monday evening at midnight, had been invited to the meeting, Gretsas said they had not.

Asked whether Tom Roach would be on the council, Gretsas said that Mr. Roach, and Rita Malmud, technically started their terms at midnight January 1, and that swearing in was strictly a formality. On the other hand, he said, Oliva and Delgado terms had officially ended at the same midnight hour.

The Dunphy Directive

Dunphy’s letter was expected to touch on a range of issues raised by the historic contested third seat which is currently unfilled by order of the Appellate Division, New York Supreme Court, Second Department, Brooklyn.

The Appellate Court is still reviewing Judge Francis Nicolai’s decision calling for a continuation of the November 6 election and a revote in White Plains District 18. A decision is expected either Thursday or Friday of this week

Armchair analysts think Delgado may “holdover.”

Legal analysts in the city, Jeffrey Binder, Delgado attorney, and John Martin,a former Councilperson who was himself appointed a councilperson by the Common Council, believe by virtue of the Public Officer’s law that Mr. Delgado could legally “continue” in his seat or “holdover,” until the seat is filled by a new election or a court ruling.

Other issues speculated as being covered in the Dunphy Letter are: whether the council has the right to appoint an interim councilperson (sources have told us that the Democratic council caucus would prefer reappointing Pauline Oliva); the mechanism for removing such an appointee; how long they would serve; and whose seat is vacant.

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WP Little League Requires In Person Parent Signups Jan 12 & 19

Special to WPCNR:The White Plains Little League will conduct In-Person Registration for children, ages 5 to 15, who want to play in the 2002 WPLL on Saturday January 12 and Saturday, January 19.

Registration will take place at Ridgeway School Cafeteria from 9 AM to 3 PM, both Saturdays. Registrations will not be accepted at the Department of Recreation and Parks, or be accepted by mail, as in previous years.
The Registration fee is $65, or a maximum of $150 for a family of three or more. Scholarships are available, based upon need. Parents registering their children should bring proof of residence in the form of a utility bill, or driver’s license. Children who played last year will be on our records, so there are no complicated forms to fill out.

It is important, in order to achieve orderly composition of teams that parents register their children on those two days. Registrations will only be accepted in-person on January 12 and 19. If registration is missed, you will be placed on a waiting list, and subject to a $35 late registration fee, in addition to the $65 fee.

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