In a nine-page order issued by the Hon. Daniel Palmieri on Jan. 12, the NY Supreme Court affirmed James Toner, Esq. as Manorhaven Village attorney, holding his removal by the board of trustees on Aug. 20, in violation of New York Village law.
Over Mayor Giovanna Giunta’s objections, the board of trustees voted 3 to 2 to terminate Toner and replace him with Steven Leventhal, Esq. of Leventhal, Cursio, Mullaney & Blinkoff, LLP. Toner was appointed village attorney in July of 2014.
After his removal, Leventhal, by letter, directed Toner to relinquish all village property to his firm. Toner refused, restating his belief that the board’s action was illegal. In October, the court temporarily reinstated Toner as village attorney, enjoining Leventhal from further representation of the village pending the final outcome of related cases filed earlier by the board, the mayor and Toner.
In an affidavit to the court in support of the board’s action, Trustee Von Roeschlaub claimed Toner’s loyalty to the mayor was a conflict of interest, interfered with the legislative agenda of the board and effectively deprived the board of assistance of counsel. Toner countered, citing village law and two opinions of the NY attorney general in support of his position. The court found in favor of Toner, holding that the removal of Toner had no basis in law because the board did not have the power to remove him. Further, the court found Toner could not be compelled to turn over village property and legal files as he remains the duly appointed village attorney.
“The mayor had never vetted, requested or approved Leventhal for the position of village attorney,” said Toner. “The mayor argued and the court agreed that it is the mayor that appoints the village attorney, not the board of trustees. Therefore, the resolution of Trustees Avena, Gately and Von Roeschlaub was void ab initio.”
Toner continued, “The case law on who chooses the village attorney was clear and concise and it’s a shame that this board and lawyer chose to proceed despite settled law. The net result is significant cost to the village.”
