Commandeer Realty Assocs., Inc. v. Allegro
| Decision Date | 18 August 2015 |
| Docket Number | 923/2015 |
| Citation | 49 Misc.3d 891,2015 N.Y. Slip Op. 25276,16 N.Y.S.3d 391 |
| Parties | In the Matter OF the application of COMMANDEER REALTY ASSOCIATES, INC.; Hashgucha Prutius LLC; Kingsville Synagogue; 7 Springs Villas LLC; 127 Springs LLC; 248 Seven Springs Irrevocable Trust; Seven Springs Realty, Inc.; Am Seven Springs LLC, Jacobs Hickory LLC; Port Orange Holdings LLC ; Moshe Oppenheim; Wolf Wercberger; Israel Mendel Ekstein; and Simon Gelb, Petitioners, For a judgment pursuant to article 78 of the CPLR, v. John N. ALLEGRO; Patricia Dam; Javier Dam; Wayne Gibbs; Shirley Gibbs; Kristen Dombroski; Bruno Pjetri; Richard J. Wolf; Keith Walters; Jacqueline Cruz; Keith O'Driscoll; Kimberly O'Driscoll; Denise Digiovanni; The Town Board of the Village of South Blooming Grove; The Town Board of the Town of Monroe; and the Village Board of the Village of Kiryas Joel, Respondents. |
| Court | New York Supreme Court |
Sive, Paget & Riesel, P.C., New York, Attorneys for the petitioners.
Zarin & Steinmetz, White Plains, Attorneys for the individual respondents.
Hocherman Tortorella & Wekstein, LLP, White Plains, Attorneys for the respondent Town Board of the Town of Blooming Grove One North Boradway.
Feerick Lynch MacCartney, PLLC, South Nyack, Attorneys for the respondent Village Board of the Village of South Blooming Grove.
Dickover, Donnelly & Donovan, LLP, Goshen, Attorneys for the respondent Town Board of the Town of Monroe.
Whiteman Osterman & Hanna, LLP, Albany, Attorneys for the Village Board of the Village of Kiryas Joel One Commerce Plaza.
This proceeding presents an issue of first impression for New York courts as to whether different municipalities may simultaneously attempt to annex the same territory. For the reasons that follow, this Court holds that the common-law prior jurisdiction rule should be followed to the extent that, once the municipal annexation process has commenced by the filing of a petition for annexation, the affected municipalities shall have exclusive jurisdiction over any annexation of the subject territory until the annexation process is finally concluded.
The annexation petitions
On December 27, 2013, certain owners of property located in the Town of Monroe (hereinafter Monroe) filed a petition (hereinafter the KJ petition) for annexation of approximately 510 acres of Monroe territory to the neighboring Village of Kiryas Joel (hereinafter Kiryas Joel). The municipal boards of Kiryas Joel and Monroe both issued notices of intent to serve as lead agency to complete the required SEQRA review process. On January 28, 2015, the Commissioner of the Department of Environmental Conservation (DEC) rendered a determination designating the Village Board of Kiryas Joel as lead agency.
Separately, a year later on December 30, 2014, a group of Monroe residents filed two petitions for the annexation of: (1) 336 acres from Monroe to the Town of Blooming Grove (hereinafter Blooming Grove); and (2) for the simultaneous annexation of the same 336 acres from Monroe to the Village of South Blooming Grove (hereinafter South Blooming Grove).1 The territory that is the subject of these petitions (hereinafter collectively referred to as the BG/SBG petitions) overlaps the territory proposed for annexation in the KJ petitions in that it includes approximately 228 acres of the same territory that is the subject of the KJ petition, and further seeks the annexation of approximately 108 acres that is not part of the KJ petition.
The instant CPLR article 78 proceeding
The petitioners, who are signatories to the KJ petition, and whose properties overlap with the territory sought to be annexed by the BG/SBG petitions, commenced this proceeding pursuant to CPLR article 78 for a writ of prohibition restraining Blooming Grove, South Blooming Grove, and Monroe (hereinafter the respondent municipalities) from taking any action on the BG/SBG petitions. The petitioners' order to show cause also requests a preliminary injunction restraining the respondent municipalities from calling a joint public hearing with respect to the BG/SBG petitions, and from assuming lead agency status for purposes of compliance with SEQRA regarding those petitions.
In their first cause of action, the petitioners contend that, pursuant to the “prior jurisdiction” rule, the municipalities implicated in the BG/SBG petitions lack jurisdiction to entertain those petitions pending a final determination on the KJ petition. Accordingly, the petitioners seek a writ of prohibition temporarily staying the respondent municipalities from action on the BG/SBG petitions.
In their second cause of action, the petitioners contend that the BG/SBG petitions were filed for the unlawful purpose of attempting to block the KJ petition. According to the petitioners, the individual respondents are members of an organization entitled “United Monroe,” which publicly opposes the annexation of lands to Kiryas Joel. In public statements to the media, members of United Monroe have said that the BG/SBG petitions were filed to “counteract” the KJ petition. Accordingly, the petitioners contend that the BG/SBG petitions were filed for an “improper and vexatious purpose” and are, therefore, facially invalid. As relief for this cause of action, the petitioners seek a writ of prohibition permanently enjoining the municipalities from exercising jurisdiction over the BG/SBG petition.
The municipal respondents' answers, counterclaims, and cross-claims
Blooming Grove submits an answer asserting three affirmative defenses: (1) that a municipal board, as a legislative body, cannot be restrained by a writ of prohibition; (2) that the petitioners cannot establish a clear legal right to prohibition since no New York statute or case law supports the use of the prior jurisdiction rule to stay the processing of a municipal annexation petition; and (3) the petitioners's second cause of action alleging that the BG/SBG petitions were improperly filed is not ripe for review, since no hearing has yet been held on the merits of the petition.
South Blooming Grove submits an answer containing counterclaims and cross-claims for declaratory relief. South Blooming Grove contends that the time-frames concerning compliance with the Municipal Annexation Law and SEQRA are in conflict and cannot be reconciled. Accordingly, South Blooming Grove requests a declaration as to: (1) whether the time constraints set forth in the Municipal Annexation Law must be followed to the extent that they conflict with the time constraints set forth in SEQRA; and (2) whether South Blooming Grove is required to process the BG/SBG petitions. In an affirmation in support, South Blooming Grove's attorney states that South Blooming Grove will refrain from processing the BG/SBG petitions pending resolution of this CPLR article 78 proceeding.
Monroe submits an answer asserting counterclaims and cross-claims for: (1) a declaration regarding its responsibilities under the Municipal Annexation Law and SEQRA; and (2) a declaration that it is permitted to process the BG/SBG petitions while simultaneously processing the KJ petition involving some of the same parcels of land. In an affirmation in support, Monroe's attorney states that Monroe has refrained from moving forward with the BG/SBG petition pending resolution of this CPLR article 78 proceeding.
Kiryas Joel submits an answer supporting the petition in its entirety and asking the Court to issue the writ of prohibition.
The individual respondents' motion to dismiss
The individual respondents submit a pre-answer motion to dismiss the proceeding pursuant to CPLR 3211(a)(2), (3), and (7), arguing that the petition is not ripe, that the petitioners lack standing, and that the petition fails to state a cause of action. The individual respondents further contend that the petitioners are not entitled to a preliminary injunction staying the respondent municipalities from calling a joint public hearing with respect to the BG/SBG annexation petitions.
In an affidavit, the respondent John N. Allegro (hereinafter Allegro) avers that he is a signatory to the BG/SBG petitions, that he witnessed the signatures on those petitions and was responsible for filing them, and that he resides within the area proposed for annexation to Blooming Grove and South Blooming Grove. Allegro claims that the BG/SBG petitions were filed in good faith for the purposes of receiving community services and benefits from those municipalities. He further contends that one of the petitioners in this proceeding, Simon Gelb, also filed a separate petition for the annexation of 164 acres from Monroe to Kiryas Joel, located wholly within the 510–acre area that is the subject of the KJ petition. Allegro contends that, since the second petition for annexation of land from Monroe to KJ has proceeded concurrently with the KJ petition, the BG/SBG petitions are entitled to the same type of concurrent review.
In a memorandum of law, the individual respondents contend that the petition should be dismissed as a matter of law since a writ of prohibition may not be obtained over a legislative body performing a legislative or quasi-legislative function. The individual respondents contend that the prior jurisdiction rule does not apply to annexations in New York, noting that the issue has never been addressed in this jurisdiction. The individual respondents also claim that, although they filed the BG/SBG petitions for a legitimate purpose, the Municipal Annexation Law does not include any such requirement. Further, the individual respondents contend that this CPLR article 78 proceeding is not ripe and was filed prematurely, as the respondent municipalities have taken no action under SEQRA and no public hearing has been held. Finally, the individual respondents contend that the petitioners lack standing to commence this CPLR article 78 proceeding insofar as they fail to demonstrate that they would suffer any injury...
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