| Berkoski v Board of Trustees of Inc. Vil. of Southampton |
| 2009 NY Slip Op 08573 [67 AD3d 840] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Michele Berkoski et al., Respondents, v Board of Trusteesof Incorporated Village of Southampton et al., Defendants. Marianne Finnerty et al., ProposedIntervenors-Appellants. |
—[*1] Borovina & Marullo, PLLC, Melville, N.Y. (Anton J. Borovina of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that a proposed plan to use a public park as adesignated area for the hiring of laborers contravenes Town Law § 64-e and the TownCode of the Town of Southampton §§ 140-6 and 140-7, and to permanently enjoinsuch use, the proposed intervenors appeal from so much of an order of the Supreme Court,Suffolk County (Spinner, J.), dated January 2, 2008, as denied their motion for leave to interveneas defendants in the action, and granted, in part, the plaintiffs' motion, which was opposed bythem, for a preliminary injunction.
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof denying that branch of the proposed intervenors' motion whichwas for leave to intervene as defendants by two day laborers, John Doe No. 1 and John Doe No.2, and substituting therefor a provision granting that branch of the motion, and (2) by deletingthe provision thereof granting, in part, the plaintiffs' motion for a preliminary injunction, andsubstituting therefor a provision denying the plaintiffs' motion for a preliminary injunction in itsentirety; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
On July 10, 2001 the Town Board of the Town of Southampton adopted a resolutionauthorizing the Town of Southampton to acquire a six-acre parcel of vacant land located onAldrich Lane in the Village of Southampton for park and recreational purposes. Shortly afteradopting the resolution, the Town purchased the six-acre parcel, known as Aldrich Park, withfunds provided through a community preservation fund program. Upon acquiring title to AldrichPark, the Town conveyed co-ownership to the Village of Southampton. In or around March2007, Village officials announced, and began taking steps to implement, a plan to set aside aportion of Aldrich Park as a site where laborers could gather for purposes of being hired oneither a temporary or permanent basis by contractors. According to the Village's mayor, thepurpose of allowing laborers to assemble in the park is to provide a safer alternative to thestreet-side solicitation of employment.[*2]
Shortly after learning of the Village's plan, the plaintiffs,who own homes adjacent to Aldrich Park, commenced this action against the Town and variousTown entities and officials (hereinafter collectively the Town defendants), and the Village andvarious Village entities and officials (hereinafter collectively the Village defendants). Theplaintiffs seek, inter alia, a judgment declaring that the use of Aldrich Park as a designated areafor the hiring of laborers violates the public trust doctrine and contravenes Town Law §64-e and the Town Code of the Town of Southampton (hereinafter Town Code) §§140-6 and 140-7, which regulate the use of lands acquired with community preservation funds.The plaintiffs also seek to permanently enjoin the defendants, inter alia, from using all or anyportion of Aldrich Park for nonpark or nonrecreational purposes in a manner inconsistent withTown Law § 64-e and Town Code §§ 140-6 and 140-7, and from taking anyaction "that implements, allows, promotes, facilitates or sanctions the use of all or any portion ofthe Park for non-park and non-recreation purposes, including its use as a place where personsmay concentrate, gather, loiter or stand for purposes of being hired on a permanent or temporarybasis." Simultaneous with the commencement of this action, the plaintiffs moved for apreliminary injunction, in essence barring the implementation of the Village's plan during thependency of the litigation. The Town defendants joined in the plaintiffs' request for preliminaryinjunctive relief, agreeing that the Village's proposed use of the park as "an outdoor hiring site"was not an authorized use for property acquired with community preservation funds, andconstituted an unlawful alienation of parkland without the requisite approval of the StateLegislature. In opposition to the plaintiffs' motion, the Village argued that there was no existingState or local law which prohibited soliciting employment in a public park, and that permittingsuch use in Aldrich Park would mitigate the impact of a proposed local law prohibitingstreet-side solicitation of employment upon the laborers' free speech rights by providing themwith an alternate channel of communication.
While the motion for a preliminary injunction was pending, the appellants, two day laborers(hereinafter together the John Doe appellants), two individual immigrant rights advocates(hereinafter together the advocacy appellants), and an immigrant rights organization known asthe Coalition for a Worklink Center (hereinafter the Coalition), moved for leave to intervene asdefendants in the action. In support of their motion, the appellants argued that they should bepermitted to intervene either as of right pursuant to CPLR 1012 (a), or by permission pursuant toCPLR 1013, in order to raise a First Amendment defense to the action, which is distinct from theVillage's defense.
The Supreme Court denied the appellants' motion for leave to intervene, concluding that thisaction merely involved alienation of parkland without legislative approval and, thus, did notconcern the First Amendment rights of any of the proposed intervenors. The court also granted,in part, the plaintiffs' motion for a preliminary injunction, inter alia, enjoining the defendantsfrom taking actions to implement a plan or policy that allows, promotes, facilitates, or sanctionsthe use of the park as a place where persons may gather, loiter, or stand for purposes of beinghired on a temporary or permanent basis. We modify the order and grant that branch of theappellants' motion which was for leave to intervene by the John Doe appellants, and deny theplaintiffs' motion for a preliminary injunction in its entirety.
Upon a timely motion, a person is permitted to intervene in an action as of right when, interalia, "the representation of the person's interest by the parties is or may be inadequate and theperson is or may be bound by the judgment" (CPLR 1012 [a] [2]). Additionally, the court, in itsdiscretion, may permit a person to intervene, inter alia, "when the person's claim or defense andthe main action have a common question of law or fact" (CPLR 1013). "However, it has beenheld under liberal rules of construction that whether intervention is sought as a matter of rightunder CPLR 1012 (a), or as a matter of discretion under CPLR 1013 is of little practicalsignificance [and that] intervention should be permitted where the intervenor has a real andsubstantial interest in the outcome of the proceedings" (Perl v Aspromonte Realty Corp.,143 AD2d 824, 825 [1988]; see Matterof Bernstein v Feiner, 43 AD3d 1161, 1162 [2007]; Sieger v Sieger, 297 AD2d33, 36 [2002]; County of Westchester v Department of Health of State of N.Y., 229AD2d 460, 461 [1996]; Plantech Hous. v Conlan, 74 AD2d 920, 920-921 [1980]).
Applying these principles here, the Supreme Court should have granted the John Doe [*3]appellants leave to intervene pursuant to CPLR 1013 as a matter ofdiscretion. The John Doe appellants allege that they are two individual day laborers in thecommunity who have sought employment at the Aldrich Park site, and would be permanentlybarred from assembling in the park for purposes of soliciting employment if the injunctive reliefdemanded by the plaintiffs is ultimately granted in its entirety. Under these circumstances, theJohn Doe appellants possess a real and substantial interest in the outcome of this action (seeMatter of Bernstein v Feiner, 43 AD3d at 1162; Town of Southold v Cross Sound FerryServs., 256 AD2d 403, 404 [1998]; County of Westchester v Department of Health ofState of N.Y., 229 AD2d at 461; Empire State Assn. of Adult Homes v Perales, 139AD2d 41, 45 [1988]). Intervention pursuant to CPLR 1013 is also appropriate because there is atleast one common question of law raised by the Village's verified answer and the appellants'proposed verified answer, and there has been no showing that intervention would cause unduedelay (see St. Joseph's Hosp. Health Ctr. v Department of Health of State of N.Y., 224AD2d 1008, 1009 [1996]; Empire State Assn. of Adult Homes v Perales, 139 AD2d 41,45 [1988]; Matter of Village of Spring Val. v Village of Spring Val. Hous. Auth., 33AD2d 1037 [1970]).
However, the advocacy appellants and the Coalition were properly denied leave to intervene.The advocacy appellants and the Coalition are not entitled to intervene as a matter of rightbecause they failed to show that the representation of their interests by the Village defendantswould not be adequate (see CPLR 1012 [a]; St. Joseph's Hosp. Health Ctr. vDepartment of Health of State of N.Y., 224 AD2d at 1008-1009). Moreover, the advocacyappellants and the Coalition are not entitled to intervene as a matter of discretion because theydo not have a real and substantial interest in the outcome of the proceedings (see Perl vAspromonte Realty Corp., 143 AD2d at 825). The advocacy appellants allege that they arecommunity activists with long-standing interest in the rights of day laborers, and the Coalitionalleges that it is an organization whose members are similarly interested in ensuring thereasonable and humane treatment of day laborers. Although the injunctive relief demanded bythe plaintiffs may have an impact on laborers who face the possibility of being prohibited fromassembling and seeking employment in Aldrich Park, it will have no direct impact upon theability of the advocacy appellants and the Coalition to advocate on behalf of the laborers.
The John Doe appellants contend that the court should have denied, in its entirety, theplaintiffs' motion, which they opposed, for a preliminary injunction. A party seeking the drasticremedy of a preliminary injunction has the burden of demonstrating, by clear and convincingevidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injuryif the provisional relief is withheld, and (3) a balancing of the equities in the movant's favor(see Doe v Axelrod, 73 NY2d 748, 750 [1988]; Tatum v Newell Funding, LLC, 63 AD3d 911 [2009]; Copart of Conn., Inc. v Long Is. AutoRealty, LLC, 42 AD3d 420, 421 [2007]; Ginsburg v Ock-A-Bock Community Assn., Inc., 34 AD3d 637[2006]). Here, the plaintiffs failed to satisfy their burden of demonstrating irreparable injury ifthe preliminary injunction is not granted (see Copart of Conn., Inc. v Long Is. AutoRealty, LLC, 42 AD3d at 421; Ginsburg v Ock-a-Bock Community Assn.,Inc.., 34 AD3d at 637-638). In light of our determination, we need not reach the merits ofthe other two requirements that must be met before such an injunction can be granted.Accordingly, the plaintiffs' motion for a preliminary injunction should have been denied in itsentirety. Mastro, J.P., Fisher, Eng and Hall, JJ., concur.