Borst v. Int'l Paper Co.
| Citation | 995 N.Y.S.2d 769,2014 N.Y. Slip Op. 07224,121 A.D.3d 1343 |
| Decision Date | 23 October 2014 |
| Docket Number | 517299. |
| Parties | Harry V. BORST, Plaintiff, v. INTERNATIONAL PAPER COMPANY, Defendant. Sandy Knolls, LLC, et al., Appellants. (Action No. 1.) In the Matter of Albert L. Price et al., Respondents, v. Town of Arietta et al., Appellants. Sandy Knolls, LLC, et al., Proposed Intervenors–Appellants. (Proceeding No. 1.) In the Matter of Albert L. Price et al., Respondents, v. Town of Arietta, Appellant. Sandy Knolls, LLC, et al., Proposed Intervenors–Appellants. (Proceeding No. 2.). |
| Court | New York Supreme Court — Appellate Division |
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Dennis J. Phillips of counsel), for appellants and proposed intervenors-appellants.
Robert M. Cohen, Ballston Lake, for respondents.
Before: LAHTINEN, J.P., McCARTHY, ROSE, LYNCH and DEVINE, JJ.
Appeals (1) from an order of the Supreme Court (Aulisi, J.), entered March 22, 2013 in Hamilton County, which, in action No. 1, denied a motion by Sandy Knolls, LLC to vacate a prior judgment of the court, (2) from a judgment of said court, entered March 22, 2013 in Hamilton County, which, among other things, granted petitioners' application, in combined proceeding No. 1 pursuant to CPLR article 78 and action for declaratory judgment, for, among other things, a declaration that respondents must comply with the judgment in action No. 1, (3) from an order of said court, entered March 22, 2013 in Hamilton County, which, in combined proceeding No. 1 pursuant to CPLR article 78 and action for declaratory judgment, among other things, denied motions by Sandy Knolls, LLC and Piseco Lake Association for leave to intervene, and (4) from a judgment of said court, entered April 12, 2013 in Hamilton County, which granted petitioners' application, in proceeding No. 2 pursuant to CPLR article 78, to, among other things, annul Local Law No. 1 (2011) of the Town of Arietta.
Following a bench trial conducted in 1930, Supreme Court (Crapsor, J.) executed a judgment (hereinafter the Borst judgment) in action No. 1 which, among other things, perpetually enjoined defendant, International Paper Company (hereinafter IPC), and its officers, employees or agents from closing a dam at the outlet of Piseco Lake that was located on its real property from June 25 to October 1 each year, as the usage of the dam caused the water levels of the lake to rise, thereby impairing the right of plaintiff, Harry V. Borst, to access all parts of the beach on his property. Nearly 80 years after the Borst judgment was executed, petitioners commenced a hybrid CPLR article 78 proceeding and declaratory judgment action (proceeding no. 1) seeking, among other things, a judicial declaration that the manner in which respondents regulated the water level of the lake caused damage to petitioners' properties and was in violation of the injunctive relief provided in the Borst judgment.1 Joinder of issue occurred and the parties attempted to reach a settlement of the matter; such efforts, however, were abandoned and Supreme Court (Aulisi, J.) granted the petition and directed petitioners to submit a proposed judgment on notice to respondents. Before Supreme Court executed the final judgment, however, respondents moved to reargue their opposition to the petition and the Piseco Lake Association (hereinafter PLA) and Sandy Knolls, LLC each moved for leave to intervene in proceeding No. 1. Supreme Court denied the applications and, subsequently, issued judgment granting the petition. Around the time that the court was considering the motions submitted in proceeding No. 1, Sandy Knolls moved, by order to show cause in action No. 1, to vacate the Borst judgment, asserting, among other things, that material factual changes that occurred in the decades since its entry had rendered the permanent injunction afforded in the Borst judgment inequitable. Supreme Court ultimately denied the motion. Thereafter, petitioners commenced a second combined CPLR article 78 proceeding and declaratory judgment action (proceeding no. 2) seeking to annul Local Law No. 1 (2011) of the Town of Arietta (hereinafter Local Law No. 1). Supreme Court granted the petition, by annulling Local Law No. 1 insofar as it was determined to contravene the injunctive dictates set forth in the Borst judgment. These appeals ensued.2
We first address Supreme Court's denial of the respective intervenor motions of the PLA and Sandy Knolls, who now argue that Supreme Court's denial of said motions constituted an abuse of the court's discretion and, further, that the court erred in failing to join them as necessary parties to both proceedings.3 “Pursuant to CPLR 7802(d), a court may allow other interested persons to intervene” in proceedings brought against public agencies (Matter of Greater N.Y. Health Care Facilities Assn. v. DeBuono, 91 N.Y.2d 716, 720, 674 N.Y.S.2d 634, 697 N.E.2d 589 [1998] [internal quotation marks omitted] ). Further, intervention is to be granted as of right in any action or proceeding where a nonparty demonstrates that its interest in the matter is not being duly represented and the nonparty may be “bound by the judgment” (CPLR 1012[a][2] ) or, alternatively, may be permitted by the court “when the person's claim or defense and the main action [or proceeding] have a common question of law or fact” (CPLR 1013 ; see U.S. Bank N.A. v. Gestetner, 74 A.D.3d 1538, 1541, 902 N.Y.S.2d 247 [2010] ).
After learning that petitioners sought to prevent respondents from utilizing the dam to regulate lake water levels, several lakeshore property owners and individuals who regularly used the lake notified the Town Board of respondent Town of Arietta that they opposed the petition in proceeding No. 1. It was only after Supreme Court granted the petition in proceeding No. 1 that the PLA formally organized to represent the concerns of hundreds of lake residents in the matter and advocate for respondents' continued regulation of the lake. The PLA members explained in their application that their rights and interests as landowners would be harmed by the discontinued use of the dam and that respondents' role in maintaining water levels was vital for “navigational, recreational and construction purposes.”
Likewise, David Henle, a member of Sandy Knolls, as successor in title to the Borst lakefront property, insisted that Sandy Knolls' intervention was warranted because, among other things, an affirmance of the injunctive relief set forth in the Borst judgment would jeopardize the condition of his lakefront property, explaining that, in the absence of water level regulatory action, “gross fluctuations that occurred ... when the lake went unregulated ... caused flooding during the wet season and/or the appearance of navigable hazards ... during drought conditions.”
Although requests for leave to intervene invoke a court's discretionary authority (see Matter of Pace–O–Matic, Inc. v. New York State Liq. Auth., 72 A.D.3d 1144, 1145, 898 N.Y.S.2d 295 [2010] ; Matter of Tennessee Gas Pipeline Co. v. Town of Chatham Bd. of Assessors, 239 A.D.2d 831, 832, 657 N.Y.S.2d 269 [1997] ), the thorough and well-reasoned submissions of the PLA and Sandy Knolls have shown that they have a “ ‘direct and substantial interest’ in the outcome of this litigation” and, therefore, Supreme Court erred in denying their motions to intervene (Matter of Rent Stabilization Assn. of N.Y. City v. New York State Div. of Hous. & Community Renewal, 252 A.D.2d 111, 116, 681 N.Y.S.2d 679 [1998], quoting Matter of Pier v. Board of Assessment Review of Town of Niskayuna, 209 A.D.2d 788, 789, 617 N.Y.S.2d 1004 [1994] ).
Further, inasmuch as the motions to intervene were filed in the months after Supreme Court issued its order in proceeding No. 1, but before the final judgment was rendered in that proceeding more than a year and one half later, and approximately two years before judgment was entered in proceeding No. 2, we do not agree that denial of the motions on untimeliness grounds was necessitated (see Bond v. Giebel, 101 A.D.3d 1340, 1344, 956 N.Y.S.2d 267 [2012], lv. dismissed 21 N.Y.3d 884, 965 N.Y.S.2d 777, 988 N.E.2d 514 [2013] ; compare Carnrike v. Youngs, 70 A.D.3d 1146, 1147, 895 N.Y.S.2d 225 [2010] ). Nor are there any indicia of undue prejudice to petitioners that would warrant the exclusion of the proposed intervenors from the matters (see Town of N. Elba v. Grimditch, 96 A.D.3d 1305, 1306–1307, 947 N.Y.S.2d 667 [2012] ; see also Matter of White v. Incorporated Vil. of Plandome Manor, 190 A.D.2d 854, 855, 593 N.Y.S.2d 881 [1993], lv. denied 83 N.Y.2d 752, 611 N.Y.S.2d 134, 633 N.E.2d 489 [1994] ). In light of this determination, the argument that the PLA and Sandy Knolls should have been joined as necessary parties has become academic.
Next, we consider Supreme Court's finding, in its judgment granting the petition in proceeding No. 1, that collateral estoppel principles precluded respondents from challenging the Borst judgment. As a “narrower species of res judicata,” the equitable doctrine of collateral estoppel precludes a party from retrying “an issue clearly raised in a prior action or proceeding and decided against that party or those in privity” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [1984] ; see Walter v. White–Bonn, Inc., 8 A.D.3d 715, 716, 777 N.Y.S.2d 780 [2004] ; Matter of Hickey v. Sinnott, 277 A.D.2d 572, 573, 715 N.Y.S.2d 533 [2000] ). In this regard, privity is an amorphous term not “susceptible to ease of application” (Buechel v. Bain, 275 A.D.2d 65, 73, 713 N.Y.S.2d 332 [2000], affd. 97 N.Y.2d 295, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ), and a court's finding that differing parties are in privity requires consideration of “the character, right and extent of a party's role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another” (...
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