Jones v. Town of Carroll

• Decision Date: 09 February 2018
• Docket Number: CA 17–00821,1307
• Citation: 158 A.D.3d 1325,72 N.Y.S.3d 657
• Parties: Carol L. JONES, as Executor of the Estate of Donald J. Jones, Carol L. Jones, Jones–Carroll, Inc., and Sealand Waste LLC, Plaintiffs–Respondents, v. TOWN OF CARROLL and Town Board of Town of Carroll, Defendants–appellants.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 1325

72 N.Y.S.3d 657

Carol L. JONES, as Executor of the Estate of Donald J. Jones, Carol L. Jones, Jones–Carroll, Inc., and Sealand Waste LLC, Plaintiffs–Respondents,

v.TOWN OF CARROLL and Town Board of Town of Carroll, Defendants–appellants.

1307

CA 17–00821

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

Entered: February 9, 2018

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF COUNSEL), FOR DEFENDANTS–APPELLANTS.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PLAINTIFF–RESPONDENTSEALAND WASTE LLC.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.

MEMORANDUM AND ORDERMemorandum:

The facts of this case are fully set forth in our decisions on the prior appeals ( Jones v. Town of Carroll,32 A.D.3d 1216, 821 N.Y.S.2d 708[4th Dept.2006], lv dismissed12 N.Y.3d 880, 883 N.Y.S.2d 174, 910 N.E.2d 1004[2009];Jones v. Town of Carroll [appeal no. 1], 57 A.D.3d 1376, 873 N.Y.S.2d 391[4th Dept.2008], revd15 N.Y.3d 139, 905 N.Y.S.2d 551, 931 N.E.2d 535[2010], rearg. denied15 N.Y.3d 820, 908 N.Y.S.2d 153, 934 N.E.2d 886[2010];Jones v. Town of Carroll[appeal No. 2], 57 A.D.3d 1379, 873 N.Y.S.2d 395[4th Dept.2008];Jones v. Town of Carroll,122 A.D.3d 1234, 996 N.Y.S.2d 804[4th Dept.2014], lv denied25 N.Y.3d 910, 2015 WL 3618846[2015][ Jones III ] ).As relevant to the present appeal, plaintiffCarol L. Jones and her husband, Donald J. Jones(decedent), owned property on a portion of which plaintiffJones–Carroll, Inc. operated a construction and demolition landfill under permits obtained from the New York State Department of Environmental Conservation(DEC)(seeJones III,122 A.D.3d at 1235, 996 N.Y.S.2d 804 ).PlaintiffSealand Waste LLC(Sealand) is a potential buyer of the property that had previously entered into an agreement with Jones, decedent, and Jones–Carroll, Inc. providing, among other things, that Sealand would test the suitability of the property for expansion of the landfill on the entire parcel and then enter into contract negotiations to purchase the property.Sealand thereafter applied for, and is still actively pursuing, a DEC permit for the proposed expansion.Sealand was denied a requested federal permit as a result of Local LawNo. 1 of 2007(2007 Law), which had been enacted by defendants and banned the operation of any solid waste management facility in defendantTown of Carroll(Town), but exempted, inter alia, such a facility then in operation pursuant to a permit issued by the DEC under the current terms and conditions of the existing operating permit (seeJones III,122 A.D.3d at 1235–1236, 996 N.Y.S.2d 804 ).Jones, decedent, and Jones–Carroll, Inc. commenced this action challenging the validity of the 2007 Law.Sealand moved to intervene as a plaintiff and submitted a proposed complaint containing the same claims as the first, third, and fifth causes of action in the amended complaint.Defendants appeal from an order that, among other things, granted Sealand's motion.We affirm.

Upon a timely motion, a nonparty is permitted to intervene as of right in an action involving property where the nonparty "may be affected adversely by the judgment"( CPLR 1012[a][3];seeCavages, Inc. v. Ketter,56 A.D.2d 730, 731, 392 N.Y.S.2d 755[4th Dept.1977] ).Additionally, after considering "whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party,"a court may, in its discretion, permit a nonparty to intervene when, inter alia, the nonparty's "claim or defense and the main action have a common question of law or fact"( CPLR 1013 )."Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings"( Wells Fargo Bank, N.A. v. McLean,70 A.D.3d 676, 677, 894 N.Y.S.2d 487[2d Dept.2010];seeMatter of Norstar Apts. v. Town of Clay,112 A.D.2d 750, 750–751, 492 N.Y.S.2d 248[4th Dept.1985] ).

Defendants do not contend in their brief that Sealand lacks a real and substantial interest in the outcome of the proceeding or that Sealand's claims lack common questions of law or fact with the main action, and defendants are therefore deemed to have abandoned any such contentions (seeCiesinski v. Town of Aurora,202 A.D.2d 984, 984, 609 N.Y.S.2d 745[4th Dept.1994] ).

Defendants nonetheless challenge the timeliness of the motion.Defendants initially contend that Sealand was too late in seeking leave to intervene because our determination in Jones III, coupled with the parties' subsequent stipulation of discontinuance of the second and fourth causes of action, "effectively dismissed" the action before Sealand sought intervention (see generallyCarnrike v. Youngs,70 A.D.3d 1146, 1147, 895 N.Y.S.2d 225[3d Dept.2010] ).We reject that contention.In Jones III, among other things, we modified the judgment by denying the motion of Jones, individually and as executor for decedent's estate, and Jones–Carroll, Inc.(plaintiffs) for summary judgment with respect to the first, third, and fifth causes of action in the amended complaint and by vacating Supreme Court's declaration that the 2007 Law was null and void and of no force and effect with respect to plaintiffs' use of the property, and we affirmed that part of the judgment denying defendants' cross motion for a determination that the 2007 Law was a proper exercise of the Town's police power that did not violate plaintiffs' rights and required their compliance ( 122 A.D.3d at 1236–1237, 1239, 996 N.Y.S.2d 804 )."The denial of a motion for summary judgment establishes nothing except that summary judgment is not warranted at [that] time"( Siegel, N.Y. Prac§ 287 at 487[5th ed 2011] ), and does not constitute an adjudication on the merits (seeMetropolitan Steel Indus., Inc. v. Perini Corp.,36 A.D.3d 568, 570, 828 N.Y.S.2d 395[1st Dept.2007] ).Thus, the action has not been finally determined and, contrary to defendants' related contention, the Court of Appeals' denial of leave to appeal in Jones III"has no precedential value"(Matter of Calandra v. Rothwax,65 N.Y.2d 897, 897, 493 N.Y.S.2d 304, 482 N.E.2d 1220[1985];seeMatter of Marchant v. Mead–Morrison Mfg. Co.,252 N.Y. 284, 297–298, 169 N.E. 386[1929], rearg. denied253 N.Y. 534, 171 N.E. 770[1930], appeal dismissed282 U.S. 808, 51 S.Ct. 104, 75 L.Ed. 725[1930] ).In any event, even if a motion to intervene is made after judgment, a court is not precluded from granting such relief in appropriate circumstances (see e.g.Auerbach v. Bennett,64 A.D.2d 98, 105, 408 N.Y.S.2d 83[2d Dept.1978], mod on other grounds47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994[1979];112–40 F.L.B. Corp. v. Tycoon Collections, Inc.,73 A.D.3d 719, 721, 901 N.Y.S.2d 294[2d Dept.2010];cf.Breslin Realty Dev. Corp. v. Shaw,91 A.D.3d 804, 804–805, 936 N.Y.S.2d 698[2d Dept.2012] ).

Contrary to defendants' further contention, the motion was not otherwise untimely."In...