Jenkins v. Astorino

CourtNew York Supreme Court Appellate Division
Citation110 A.D.3d 882,972 N.Y.S.2d 688,2013 N.Y. Slip Op. 06684
PartiesIn the Matter of Kenneth W. JENKINS, etc., et al., respondents, v. Robert P. ASTORINO, etc., et al., appellants.
Decision Date16 October 2013

110 A.D.3d 882
972 N.Y.S.2d 688
2013 N.Y. Slip Op. 06684

In the Matter of Kenneth W. JENKINS, etc., et al., respondents,
v.
Robert P. ASTORINO, etc., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 16, 2013.



Robert F. Meehan, County Attorney, White Plains, N.Y. (James Castro–Blanco, Linda M. Trentacoste, and Adam Rodriguez of counsel), for appellants.

Alexander E. Eisemann, New York, N.Y., for respondents.


SHERI S. ROMAN, J.P., SANDRA L. SGROI, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In a hybrid proceeding pursuant to CPLR article 78 in the nature of mandamus,

[972 N.Y.S.2d 689]

inter alia, to compel the Westchester County Executive to comply with Local Law No. 6 (2012) of the County of Westchester and action for declaratory relief, the respondents/defendants appeal (1) from an order of the Supreme Court, Westchester County (Warhit, J.), dated April 11, 2012, (2), as limited by their brief, from so much of an order of the same court entered October 19, 2012, as directed them either to join the Westchester County Board of Legislators as a necessary party or withdraw each and every defense implicating the Westchester County Board of Legislators as a necessary party, (3) from an order of the same court entered November 14, 2012, which denied their motion pursuant to CPLR 3211(a) to dismiss the amended petition/complaint, and (4) from a judgment of the same court entered February 25, 2013, which, upon the orders, declared that the respondents/defendants are required to comply with Local Law No. 6 (2012) of the County of Westchester and directed them to implement, enforce, and comply with that local law.

ORDERED that the appeals from the orders are dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, without costs or disbursements, the Westchester County Board of Legislators is joined as a respondent/defendant, without prejudice to the right of the Westchester County Board of Legislators to assert any defenses and affirmative defenses, the order entered October 19, 2012, is vacated, the respondents/defendants' motion pursuant to CPLR 3211(a) to dismiss the amended petition/complaint is denied as premature, the order entered November 14, 2012, is modified accordingly; and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith; and it is further,

ORDERED that the petitioners/plaintiffs are directed, within 30 days after service upon them of a copy of this decision and order, to serve the Westchester County Board of Legislators with a copy of the order to show cause, the amended...

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8 cases
  • Jenkins v. Astorino
    • United States
    • New York Supreme Court — Appellate Division
    • November 8, 2017
    ...compel the Westchester County Executive to comply with the Local Law.The defendants appealed to this Court (see Matter of Jenkins v. Astorino, 110 A.D.3d 882, 972 N.Y.S.2d 688 ). This Court, among other things, reversed the judgment (see id. at 883, 972 N.Y.S.2d 688 ). This Court stated tha......
  • Nemeth v. K-Tooling
    • United States
    • New York Supreme Court — Appellate Division
    • July 5, 2018
    ...Windy Ridge Farm v. Assessor of Town of Shandaken , 11 N.Y.3d at 727, 864 N.Y.S.2d 794, 894 N.E.2d 1183 ; Matter of Jenkins v. Astorino , 110 A.D.3d 882, 885, 972 N.Y.S.2d 688 [2013] ; Matter of Romeo v. New York State Dept. of Educ. , 41 A.D.3d 1102, 1104, 839 N.Y.S.2d 297 [2007] ). Accord......
  • Intelligent Prod. Solutions, Inc. v. Morstan Gen. Agency, Inc.
    • United States
    • New York Supreme Court
    • December 4, 2014
    ...in its assertion thereof (see Windy Ridge Farm v. Assessor of Town of Shandaken, 11 NY3d 725, 726–727, supra; Jenkins v. Astorino, 110 AD3d 882, 972 N.Y.S.2d 688 [2d Dept 2013] ; Alexy v. Otte, 58 AD3d 967, 871 N.Y.S.2d 741 [3d Dept 2009] ).Accordingly, the court will not consider the effec......
  • Germain v. Town of Chester Planning Bd.
    • United States
    • New York Supreme Court — Appellate Division
    • December 6, 2017
    ...Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725, 727, 864 N.Y.S.2d 794, 894 N.E.2d 1183 ; Matter of Jenkins v. Astorino, 110 A.D.3d 882, 885, 972 N.Y.S.2d 688 ; Matter of Mega Sound & Light, LLC v. Commissioner of Labor, 99 A.D.3d 800, 800, 952 N.Y.S.2d 210 ; Matter of Lazz......
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