| Matter of Bernstein v Feiner |
| 2007 NY Slip Op 06990 [43 AD3d 1161] |
| September 25, 2007 |
| Appellate Division, Second Department |
| In the Matter of Robert B. Bernstein, Respondent, v Paul J.Feiner et al., Respondents. Jay Leon et al., ProposedIntervenor-Appellants. |
—[*1] Robert B. Bernstein, Hartsdale, N.Y., petitioner-respondent pro se.
In a hybrid proceeding pursuant to CPLR article 78 and action for a judgment declaring, interalia, that the budget for the respondent Town of Greenburgh for the fiscal year 2006 improperlyimposes the cost of maintaining certain park and recreational facilities that are open to all Townof Greenburgh residents solely on the owners of property in the unincorporated area of the Town,the proposed intervenors appeal, by permission, from an order of the Supreme Court,Westchester County (Cacace, J.), dated August 11, 2006, which denied their motion for leave tointervene.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, and the motion for leave to intervene is granted.
The petitioner, a resident of the unincorporated area of the Town of Greenburgh, commencedthis hybrid proceeding pursuant to CPLR article 78 and action for a judgment declaring, interalia, that the Town's 2006 budget improperly imposes the cost of maintaining certain park andrecreational facilities that are open to all Town residents solely on the owners of property in theunincorporated area of the Town, in violation of Town Law § 232. The Mayors of theIncorporated Villages of Ardsley, Dobbs Ferry, Elmsford, Hastings-on-Hudson, Irvington, andTarrytown, each alleging that they are tax-paying property owners in their respective Villages,and the Villages of [*2]Elmsford and Hastings-on-Hudson, whichalso allegedly pay Town taxes (hereinafter collectively the proposed intervenors), moved forleave to intervene as respondents. They contend that the method of allocation used in the Townbudget is mandated by a special law (L 1982, ch 891), and that they have a substantial interest astaxpaying property owners in the outcome of the proceeding because, if the petitioner prevails,approximately $10 million in expenses will be shifted from the budget for the unincorporatedarea to the Town-wide budget, approximately 50% of which is taxed to village residents.
We conclude that the Supreme Court improvidently exercised its discretion in denying theproposed intervenors' motion for leave to intervene. CPLR 7802 (d), which authorizes the courtto allow "interested persons" to intervene, "grants the court broader power to allow interventionin an article 78 proceeding than is provided pursuant to either CPLR 1012 or 1013 in an action"(Matter of Elinor Homes Co. v St. Lawrence, 113 AD2d 25, 28-29 [1985]). As a generalmatter, "intervention should be permitted where the intervenor has a real and substantial interestin the outcome of the proceedings" (County of Westchester v Department of Health of Stateof N.Y., 229 AD2d 460, 461 [1996]). Since the proposed intervenors, as property owners inthe incorporated villages of the Town, face substantial property tax increases if the petitionerprevails, they have a substantial interest in the outcome of the proceeding and should have beengranted leave to intervene in the article 78 proceeding. The Villages have an additional interest inthis matter since the law upon which the Town relies provides that the cost of a park may beimposed on village taxpayers only if the board of trustees of the village determines by resolution,subject to permissive referendum, that it is "in the public interest of the residents of suchincorporated village to use the public park" (L 1982, ch 891, § 3). Spolzino, J.P., Ritter,Dillon and Dickerson, JJ., concur.