Opinion
1307 CA 17–00821
02-09-2018
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.
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–RESPONDENT SEALAND WASTE LLC.
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–RESPONDENT SEALAND WASTE LLC.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: 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 dismissed 12 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], revd 15 N.Y.3d 139, 905 N.Y.S.2d 551, 931 N.E.2d 535 [2010], rearg. denied 15 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 denied 25 N.Y.3d 910, 2015 WL 3618846 [2015] [ Jones III ] ). As relevant to the present appeal, plaintiff Carol L. Jones and her husband, Donald J. Jones (decedent), owned property on a portion of which plaintiff Jones–Carroll, Inc. operated a construction and demolition landfill under permits obtained from the New York State Department of Environmental Conservation (DEC) (see Jones III, 122 A.D.3d at 1235, 996 N.Y.S.2d 804 ). Plaintiff Sealand 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 Law No. 1 of 2007 (2007 Law), which had been enacted by defendants and banned the operation of any solid waste management facility in defendant Town 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 (see Jones 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] ; see Cavages, 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] ; see Matter 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 (see Ciesinski 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 generally Carnrike 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 (see Metropolitan 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] ; see Matter of Marchant v. Mead–Morrison Mfg. Co., 252 N.Y. 284, 297–298, 169 N.E. 386 [1929], rearg. denied 253 N.Y. 534, 171 N.E. 770 [1930], appeal dismissed 282 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 grounds 47 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 examining the timeliness of [a] motion [to intervene], courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party" ( Yuppie Puppy Pet Prods., Inc. v. Street Smart Realty, LLC, 77 A.D.3d 197, 201, 906 N.Y.S.2d 231 [1st Dept. 2010] ; see Norstar Apts., 112 A.D.2d at 751, 492 N.Y.S.2d 248 ). Here, although Sealand did not seek to intervene until several years after it knew its interests in the property may be implicated in the dispute, we conclude that the court did not abuse its discretion in granting the motion inasmuch as Sealand's intervention will not delay resolution of the action and defendants will not suffer prejudice (see Poblocki v. Todoro, 55 A.D.3d 1346, 1347, 865 N.Y.S.2d 448 [4th Dept. 2008] ; Norstar Apts., 112 A.D.2d at 751, 492 N.Y.S.2d 248 ). Sealand does not seek to assert any new claims or to conduct extensive additional discovery but rather, in essence, seeks only to continue the challenge to the 2007 Law on causes of action that remain unresolved despite lengthy litigation (see Poblocki, 55 A.D.3d at 1347, 865 N.Y.S.2d 448 ). Where, as here, there is no "showing of prejudice resulting from delay in seeking intervention, the motion should not be denied as untimely" ( Norstar Apts., 112 A.D.2d at 751, 492 N.Y.S.2d 248 ).
Finally, defendants' contention that Sealand's motion should be denied on res judicata and collateral estoppel grounds is improperly raised for the first time on appeal (see Matter of Hall, 275 A.D.2d 979, 979, 713 N.Y.S.2d 622 [4th Dept. 2000] ) and, in any event, is without merit inasmuch as there has been no final determination on the merits with respect to the first, third, and fifth causes of action in the amended complaint (see generally Yanguas v. Wai Wai Pun, 147 A.D.2d 635, 635, 538 N.Y.S.2d 41 [2d Dept. 1989] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.