Greenberg v. Veteran
| Decision Date | 17 December 1990 |
| Docket Number | No. 89 Civ. 0591(GLG).,89 Civ. 0591(GLG). |
| Citation | 752 F. Supp. 630 |
| Parties | In the Matter of the Application of Myles GREENBERG and Francis M. Mulligan, Petitioners, v. Anthony F. VETERAN, Town Supervisor and Susan Tolchin, Town Clerk, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Lovett & Gould, White Plains, N.Y. by Johnathan Lovett, of counsel, for petitioners.
Paul Agresta, Town Atty., Town of Greenburgh, Elmsford, N.Y., for respondents Attorney F. Veteran and Susan Tolchin.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for respondents Anita Jordan, April Jordan, Layota Jordan, Anna Ramos, Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, Lisa Myers, Thomas Myers, Jr., Linda Myers, Shawn Myers, and National Coalition for the Homeless. Local counsel for respondents Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams, James Hodges, and National Ass'n for the Advancement of Colored People, Inc. White Plains/Greenburgh Branch; by Jay Himes, Melinda Levine, of counsel.
Joyce Knox, NAACP, Inc., Baltimore, Md., for respondents Yvonne Jones, Odell A. Jones, Melvin Dixon, Geri Bacon, Mary Williams, James Hodges, and National Ass'n for the Advancement of Colored People, Inc. White Plains/Greenburgh Branch.
Cuddy & Feder, White Plains, N.Y., for respondents Keren Developments, Inc. and Robert Martin Co.; by Ruth E. Roth, respondent pro se.
In December 1988, Anthony Veteran, the Supervisor of the Town of Greenburgh (the "Town"), declined to approve a petition that was to be submitted to area residents for the incorporation of a new village to be called "Mayfair Knollwood." One of the six reasons for the Town Supervisor's denial of the petition was that an engineer appointed by the Town had concluded that the proposed boundary description of the new village lacked the "common certainty" required by New York Village Law § 2-202(1)(c)(1) (McKinney 1973).1 An article 78 proceeding was then filed in state court pursuant to the authority of section 2-210(1) of the Village Law and, thereafter, was removed to this court. We concluded that removal was inappropriate and remanded the action to state court. An appeal ensued and the Second Circuit Court of Appeals reversed our decision, remanding the case back to us. Respondents then moved to dismiss the article 78 petition, seeking to sustain the Town Supervisor's ruling.
Thereafter, pursuant to section 2-210(1) of the Village Law, we appointed the Honorable Joseph F. Gagliardi2 as a special referee to hear and report on, inter alia, whether the boundary description lacked the common certainty that is required under the statute.3 This issue was tried before Judge Gagliardi, who concluded that the Town Supervisor was correct and that the property description failed to comply with the common certainty requirement.4 In arriving at this conclusion, Judge Gagliardi not only considered the engineer report the Town Supervisor had relied upon, but also examined additional evidence submitted by both parties. Petitioners thereafter filed objections to Judge Gagliardi's ruling pursuant to Federal Rule of Civil Procedure 53(e)(2). The principal argument raised is that Judge Gagliardi erred by considering any evidence that had not been before the Town Supervisor. This is apparently an issue that has not been addressed previously by New York's courts. Besides this legal issue, petitioners also raise numerous objections to Judge Gagliardi's factual findings.
Section 2-210(1) of the Village Law governs the review of the Town Supervisor's decision "as to the legal sufficiency of the petition." N.Y. Village Law § 2-210(1) (McKinney 1973). The question is whether the Town Supervisor's ruling was "illegal, based on insufficient evidence, or contrary to the weight of the evidence." Id. Section 2-210(1) goes on to state that:
If the court determines that additional testimony or evidence is necessary for the proper disposition of the matter it may take such evidence or testimony or appoint a referee to take such evidence or testimony as it may direct and report the same to the court with findings of fact and conclusions of law which shall constitute part of the proceeding upon which the determination of the court shall be made.
Id. Thus, it appears clear that the New York legislature contemplated the court's use of such "additional testimony or evidence" in resolving the issue of whether a petition was legally sufficient.
As noted, apparently no New York court has addressed this issue in connection with the Village Law. However, courts interpreting similar statutes have considered additional evidence in reviewing administrative determinations. For example, in Scott v. Zoning Board of Appeals, 88 A.D.2d 767, 451 N.Y.S.2d 499, 500 (4th Dep't 1982), the court addressed New York Town Law section 267, a provision very similar to Village Law section 2-210. Section 267(10) of the Town Law states:
If upon the hearing at a special term of the supreme court, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.
N.Y. Town Law § 267(10) (McKinney 1987). Based upon this statute, as well as section 267(7) of the Town Law, the Scott court held that it was proper for the trial court "to conduct a hearing in order to clarify and supplement the proceedings before the Town Zoning Board." Scott, 451 N.Y. S.2d at 500.
The case of Joynt v. King, 6 A.D.2d 234, 176 N.Y.S.2d 776 (4th Dep't 1958), involved a decision made by a zoning board denying an application for a certificate of occupancy. The petitioner then filed an article 78 proceeding. After the zoning board submitted additional evidence to the court that had not been before the zoning board, the petitioner requested a hearing to review these new matters. The trial court denied this request. However, the Appellate Division reversed, looking to the words of section 267(7) of the Town Law, which specifically authorizes a court to "take evidence or appoint a referee to take such evidence as it may direct and report the same with his findings of fact and conclusions of law." N.Y. Town Law § 267(7) (McKinney 1987). The court concluded that the reviewing court may take such evidence "whenever the court finds that further proof is necessary to clarify or supplement the evidence before the Zoning Board, in order to enable it to determine whether the Zoning Board's decision was arbitrary." Joynt, 176 N.Y.S.2d at 781. There is no reason why the logic used in interpreting sections 267(7) and 267(10) of the Town Law should not be applied to section 2-210 of the Village Law.
In support of the proposition that no new evidence may be adduced that was not before the Town Supervisor, petitioners cite several cases. None of these, however, addresses the precise issue at hand. In three of the cases cited, it does not appear that any additional evidence was presented to the reviewing court besides that which had been produced at the administrative level. See Wright v. Ranson, 307 N.Y. 317, 121 N.E.2d 244 (1954); Giordano v. State Tax Comm'n, 145 A.D.2d 726, 535 N.Y.S.2d 255 (3d Dep't 1988); Hamilton v. Diamond, 42 A.D.2d 465, 349 N.Y.S.2d 146 (3d Dep't 1973), appeal denied, 34 N.Y.2d 516, 314 N.E.2d 425, 357 N.Y.S.2d 1026 (1974). Other cases petitioners cite simply hold that additional contentions and issues cannot be raised before the court that have not been advanced before the administrative agency. To the extent these cases may preclude the consideration of new evidence, it is only evidence supporting issues that have not been previously raised. See In re Carrazza Buick, Inc., 20 A.D.2d 613, 245 N.Y.S.2d 412, 414 (3d Dep't 1963); cf. Aldrich v. Pattison, 107 A.D.2d 258, 486 N.Y.S.2d 23, 31 (2d Dep't 1985) (). In the case at bar, the only contention asserted by respondents is that the boundary description lacked common certainty. This issue clearly was before the Town Supervisor. Thus, the additional evidence considered by Judge Gagliardi was on an issue previously ruled upon by the Town Supervisor.
None of the cases cited by petitioners actually addresses the issue presented herein. Moreover, in the case at bar, petitioners offered their own expert testimony in support of their position above and beyond that which had been submitted to the Town Supervisor. It would defy logic to allow petitioners to submit additional evidence, but then preclude respondents from doing the same. Therefore, we find that Judge Gagliardi committed no error of law in relying upon the additional evidence presented to him.
We must now turn to the objections petitioners raise to Judge Gagliardi's factual findings on the issue of common certainty. Federal Rule of Civil Procedure 53(e)(2), which governs the scope of our review of Judge Gagliardi's findings of fact, requires us to accept his findings unless they are "clearly erroneous." Fed.R. Civ.P. 53(e)(2). "A finding of fact is `clearly erroneous' only when `the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" EEOC v. Local 638, 700 F.Supp. 739, 743 n. 1 (S.D.N.Y. 1988) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105...
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