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Levin v. Woodbine Borough Council

Decided: June 18, 1981.

THOMAS LEVIN, PLAINTIFF,
v.
WOODBINE BOROUGH COUNCIL, A MUNICIPAL GOVERNING BODY OF A BOROUGH LOCATED IN THE COUNTY OF CAPE MAY, STATE OF NEW JERSEY, DEFENDANT



Staller, J.s.c.

Staller

Plaintiff Thomas Levin has moved for summary judgment seeking, among other things, an order to reinstate him as mayor of Woodbine. Defendant Woodbine Borough Council (council) has filed a cross-motion to dismiss all counts of plaintiff's complaint.

Levin was elected to the office of mayor of Woodbine and took office in January 1979. Woodbine is a municipality created pursuant to, and governed by, the Borough Act, now known as N.J.S.A. 40:86 et seq. It is stipulated that in June 1979 Levin notified the president of the council of his intended absence from the borough for more than three days.

Although Levin was present at the meeting of the council on June 6, 1979, he thereafter was absent until August 16, 1979, at which time he did attend a council meeting. He thus absented himself for ten consecutive weeks, during which period council meetings were held on June 21, July 3, July 9, July 17 and August 7.

No action was taken by council with regard to Levin's absence from his mayoral duties in 1979 by way of excusing him from attending and participating in meetings, despite the then recent enactment of the Municipal Vacancy Law, N.J.S.A. 40A:16-1 et seq. , effective April 26, 1979.

Levin similarly absented himself during the summer of 1980. He did attend a meeting of council on May 12, 1980, but thereafter did not attend or participate in another meeting

through August 1980. However, on June 13, 1980 he sent a letter to the president of council which reads as follows:

BOROUGH OF WOODBINE WOODBINE, NEW JERSEY, 08270

6/13/80

Mr. "Ern" Materio, Frederick, Woodbine NJ 08270

Dear "Ern":

In accordance with NJS 40:88-3 I hereby notify you of my intended absence from the borough for more than three days at any one time, beginning today.

Very truly yours,

Thomas M Levin, Mayor

Despite such notification, however, it is undisputed that, as of August 5, 1980, Levin had failed to attend a meeting for 12 consecutive weeks. Indeed, in an affidavit submitted by him he says that the next meeting in which he attempted to attend after May 12 was in early September. During this period regular meetings were scheduled for May 15, June 5, June 19, July 1, July 17, August 5, August 21 and September 2. All were held with the exception of the one on May 15, which was cancelled because of the absence of a quorum. (Had Levin been in attendance, the meeting could have ...


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