Opinion
Index No.: 4688-17
07-17-2018
KATZ EXCAVATING AND CONSTRUCTION, LLC, Petitioner-Plaintiff, For a Judgment Pursuant to CPLR Article 78 and CPLR § 3001 v. THE TOWN OF BALLSTON, THE TOWN BOARD OF THE TOWN OF BALLSTON, RICHARD A. BALL, AS COMMISSIONER OF DEPARTMENT OF AGRICULTURE AND MARKETS OF THE STATE OF NEW YORK, and THE DEPARTMENT OF AGRICULTURE AND MARKETS OF THE STATE OF NEW YORK, Respondents-Defendants.
APPEARANCES: STOCKLI SLEVIN & PETERS, LLP Attorneys for Petitioner-Plaintiff (Mary Elizabeth Slevin, Esq., of Counsel) 1826 Western Avenue Albany, New York 12203 DEBRA A. KAELIN, ESQ. Town Attorney for the Town of Ballston Attorney for Respondents-Defendants The Town of Ballston and The Town Board of the Town of Ballston P.O. Box 67 Burnt Hills, New York 12027-0067 SCOTT H. WYNER, ESQ. Attorney for Respondents-Defendants Richard A. Ball, as Commissioner of the Department of Agriculture and Markets of the State of New York, and the Department of Agriculture and Markets of the State of New York 10B Airline Drive Albany, New York 12235
DECISION AND ORDER
RJI No.: 01-17-ST8914 (Supreme Court, Albany County, All Purpose Term) (Justice Kimberly A. O'Connor, Presiding) APPEARANCES: STOCKLI SLEVIN & PETERS, LLP
Attorneys for Petitioner-Plaintiff
(Mary Elizabeth Slevin, Esq., of Counsel)
1826 Western Avenue
Albany, New York 12203 DEBRA A. KAELIN, ESQ.
Town Attorney for the Town of Ballston
Attorney for Respondents-Defendants The Town of Ballston
and The Town Board of the Town of Ballston
P.O. Box 67
Burnt Hills, New York 12027-0067 SCOTT H. WYNER, ESQ.
Attorney for Respondents-Defendants Richard A.
Ball, as Commissioner of the Department of
Agriculture and Markets of the State of New York,
and the Department of Agriculture and Markets
of the State of New York
10B Airline Drive
Albany, New York 12235 O'CONNOR, J.:
In this combined CPLR Article 78 proceeding and declaratory judgment action, respondents-defendants Richard A. Ball, as Commissioner of the Department of Agriculture and Markets of the State of New York and the Department of Agriculture and Markets of the State of New York (collectively "AGM") move for an order, pursuant to CPLR 3211(a)(3) and (a)(7) dismissing the verified petition and complaint on the grounds that the petitioner-plaintiff Katz Excavating and Construction, LLC ("Katz") does not have standing to bring this proceeding/action and the verified petition and complaint fail to state a cause of action. Katz opposes the motion, and cross-moves for an order, pursuant to CPLR 406 and 602, joining this special proceeding and plenary action ("proceeding/action 2") with a CPLR Article 78 proceeding and declaratory judgment action pending in Saratoga County before the Honorable Thomas D. Buchanan, captioned Richard A. Ball, Commissioner of the Department of Agriculture and Markets of the State of New York v. Town of Ballston and Timothy Szcepaniak, as Town Supervisor, and Thomas J. Benuscak; Katz Excavating and Construction, LLC; and The Spinney at Ballston Lake, LLC (Index No. 2017586) ("proceeding/action 1) for discovery and trial. AGM opposes the cross-motion. Respondents-defendants the Town of Ballston and the Town Board of the Town of Ballston (collectively "Town") support the cross-motion.
Pursuant to CPLR 602(a), a court is vested with the discretionary power to join pending actions for trial where such actions involve common questions of law or fact, and where joinder does not prejudice a substantial right of the opposing party (see Powers v. de Groodt, 43 A.D.3d 509, 512 [3d Dep't 2007]; Guasconi v. Pohl, 2 A.D.3d 1202 [3d Dep't 2003]; Fashion Tanning Co. v. D'Errico & Farhart Agency, 105 A.D.2d 1034, 1035 [3d Dep't 1984]; Cushing v. Cushing, 85 A.D.2d 809, 809 [3d Dep't 1981]; Maigur v. Saratogian, Inc., 47 A.D.2d 982, 983 [3d Dep't 1975]). Notably, "each and every factual and legal issue need not be common to the actions" for them to be joined (Korn v. Korn, 135 A.D.3d 1023, 1024 [3d Dep't 2016]; see Kupferschmid v. Hennessy, 221 A.D.3d 225, 226 [1st Dep't 1995]). Additionally, "[t]he burden of showing prejudice to a substantial right rests upon the party opposing [the] motion" (Fashion Tanning Co. v. D'Errico & Farhart Agency, 105 A.D.2d at 1035 [internal quotation marks and citation omitted]). Upon review of the record, the Court finds that joining proceeding/action 2 with proceeding/action 1 for discovery and trial is appropriate.
Both cases involve actions undertaken by the Town to approve new lateral connections to the public water supply for proposed non-agricultural developments, which are located in Saratoga County Agricultural District No. 2. Furthermore, in both cases, AGM issued determinations and orders finding that the lateral extensions of water lines within the Agricultural District violated resolutions passed by the Town Board and thus, violated Agriculture and Markets Law ("AML") § 305(4). And in both case, the AGM, pursuant to its authority under AML § 36, ordered the Town to withdraw any previously granted approvals for lateral extensions and to desist from approving lateral connections to properties within the Town's Water District No. 2, Extension 14 (proceeding/action 1) and Extension No. 7 (proceeding/action 2) and Saratoga County Agricultural District No. 2 "until such time that the land has been removed from the Agricultural District." Even if based on different proposed developments, different water line extensions, different Town resolutions, and separate determinations and orders, proceedings/actions 1 and 2 present common questions of law and fact, and concern the same parties.
Moreover, "consolidation [or a joint trial] is favored by the courts as serving the interests of justice and judicial economy" (Guasconi v. Pohl, 2 A.D.3d at 1202, citing Fransen v. Maniscalco, 256 AD2d 305, 306 [2d Dep't 1998] [internal quotations and further citations omitted]), and is appropriate "'where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent an injustice which would result from divergent decisions based on the same facts'" (Scotto v. Kodsi, 102 A.D.3d 947, 948 [2d Dep't 2013], quoting Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850 [2d Dep't 2008]; see Best Price Jewelers.com, Inc. v Internet Data Stor. & Sys., Inc., 51 AD3d 839, 839 [2 Dep't 2008]). Here, preventing an injustice that could result from divergent or conflicting decisions is especially significant given Judge Buchanan's April 6, 2018 Decision, Order and Judgment in proceeding/action 1, which decided substantive issues that have implications on the parties, including Katz, in proceeding/action 2.
Finally, the Court is not persuaded by AGM's arguments that a joint trial would result in prejudice to a substantial right (see Scotto v. Kodsi, 102 A.D.3d at 948), or that Katz's motion is premature. Nor does the Court find that special circumstances warrant setting venue of both proceedings/actions in Albany County (see Tieshmaker v. EMB Contracting Corp., 143 A.D.3d 886, 887 [2d Dep't 2016]["[W]here actions commenced in different counties have been consolidated [or joined for trial] pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present, which decision is . . . addressed to the sound discretion of the court"]; Rent Stabilization Ass'n of New York City v. State Div. of Hous. & Cmty. Renewal, 252 A.D.2d 111, 115-16 [3d Dep't 1998]["As a general rule, upon consolidation of two actions commenced in different counties, venue is placed in the county having jurisdiction over the action first commenced absent 'special circumstances'"]).
For these reasons, Katz's cross-motion is granted, and a determination of AGM's motion to dismiss will be held in abeyance pending transfer of this proceeding/action to Saratoga County. Accordingly, it is hereby
ORDERED, that this proceeding/action be joined with the proceeding/action in the Supreme Court of the State of New York, County of Saratoga County, captioned Richard A. Ball, Commissioner of the Department of Agriculture and Markets of the State of New York v. Town of Ballston and Timothy Szcepaniak, as Town Supervisor; and Thomas J. Benuscak; Katz Excavating and Construction, LLC; and The Spinney at Ballston Lake, LLC, Index No. 2017586; and it is further
ORDERED, that this proceeding/action shall be tried in the Supreme Court of the State of New York, County of Saratoga; and it is further
ORDERED, upon plaintiff filing this Decision and Order with the Office of the Albany County Clerk, the Albany County Clerk shall forthwith deliver to the Office of the Saratoga County Clerk all papers and records, and certified copies of all minutes and entries in this proceeding/action for assignment to the Honorable Thomas D. Buchanan; and it is further
ORDERED, upon the transmittal of the papers and records, and certified copies of all minutes and entries in this proceeding/action, this case shall be marked off this Court's docket.
This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being forwarded to the attorneys for Katz. A copy of this Decision and Order together with all papers in this proceeding/action are being forwarded to the Albany County Clerk for transmittal to the Saratoga County Clerk. The signing of this Decision and Order, and delivery of the copy of the same to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule with respect to filing, entry, and notice of entry of the original Decision and Order.
SO ORDERED.
ENTER. Dated: July 17, 2018
Albany, New York
/s/_________
HON. KIMBERLY A. O'CONNOR
Acting Supreme Court Justice Papers Considered:
1. Notice of Petition, dated July 20, 2017; Verified Petition and Complaint for Declaratory Judgment, dated July 20, 2017, with Exhibits A-K annexed;
2. Notice of Motion, dated October 20, 2017; Memorandum of Law in Support of Motion to Dismiss, dated October 20, 2017, with Exhibits A-C annexed;
3. Notice of Cross-Motion, dated October 30, 2017; Affidavit in Support of Motion for Joinder and in Opposition to Motion to Dismiss of Mary Elizabeth Slevin, Esq., sworn to October 30, 2017, with Exhibits 1-3 annexed; Plaintiff-Petitioners Memorandum of Law in Opposition to Defendant-Respondent's Motion to Dismiss and in Support of Cross-Motion to Join Actions, dated October 30, 2017; and
4. Affidavit in Support of Joinder & Oppose Motion to Dismiss of Timothy Szczepaniak, sworn to November 29, 2017, with unmarked exhibit annexed; Affidavit in Support of Joinder & Oppose Motion to Dismiss of Debra A. Kaelin, Esq., sworn to November 30, 2017; and
5. Reply Memorandum of law and Opposition to Cross-Motion, dated November 30, 2017, with Exhibits A annexed.
STATE OF NEW YORK COUNTY OF ALBANY CLERK'S OFFICE
ss.:
I, BRUCE A. HIDLEY, Clerk of the said County, and also Clerk of the Supreme and County Courts, being Courts of Record held therein, DO HEREBY CERTIFY that I have compared the annexed copy Decision & Order with the original thereof filed in this office on the 23rd Day of July 2018 and that the same is a correct transcript therefrom, and of the whole of said original.
IN TESTIMONY WHEREOF, I have hereunto set my name and affixed my official seal, this 1st day of August 2018
/s/_________ Clerk