MATTER OF FAGELSON v. McGOWAN

Wednesday, February 13, 2002

Supreme Court

Suffolk County

Justice Pitts

MATTER OF FAGELSON v. McGOWAN ” ORDERED, that the cross motion of respondents John P. Finnerty, Jr. and Ann M. Savino (002) pursuant to CPLR 7804(f) to dismiss this proceeding is granted; and it is further

ORDERED, that the motion of respondents Peter J. McGowan and Town of Islip for dismissal (003) and cross motion of petitioner Frederick Fagelson for summary judgment in his favor and for sanctions (004) are denied.

This petition was commenced pursuant to CPLR Article 78 to review a determination of respondent McGowan who is Supervisor of the respondent Town. The pertinent facts are as follows.

On June 20, 2001, a proceeding to incorporate a territory located within the Town of Islip, known as Bay Shore, was commenced by the filing, pursuant to Village Law ?§2-202, of a petition. The petition contained some 2,479 signatures of individuals purportedly residing within the territory and entitled to vote therein, who favored the proposed incorporation. The Village Law requires that an election ultimately be held to determine the question after the successful completion of certain preliminary formalities contained therein (see, Village Law ?§2-212).

One such formality is that the supervisor of the Town or Towns encompassing the subject territory hold a hearing, upon appropriate public notice, “to consider the legal sufficiency of the petition” (Village Law ?§2-204). Section 2-204 continues in pertinent part that:

…objections to the legal sufficiency of the petition must be in writing and signed by one or more of the residents of such town; and that any group of persons having one or more objections in common may make designation in writing and signed by them of at least one but no more than three persons giving the full names and addresses on whom and at which addresses all papers required to be served in connection with the proceeding for incorporation shall be served. …

Respondents John P. Finnerty, Jr., Auleen Gardner, Eileen C. Hickey and Ann M. Savino were “objectors” to the legal sufficiency of the instant petition pursuant to this section. Each, in writing, “authorize[d] the law firm of Shapiro & Reich, Esqs. to represent [them] and present [their] objections to the proposed incorporation to the Town Supervisor at any hearing scheduled to hear such objections.”

The hearing was held by Supervisor McGowan on August 3, 2001.

On August 10, 2001, respondent McGowan rendered his decision, which computed the total number of “regular inhabitants” in the territory and calculated the number of signatures thereof necessary for a “legally sufficient” petition. Mr. McGowan further declared invalid, on various grounds, a crucial proportion of signatures contained in the petition. The result was that the petition contained “valid” signatures of fewer than the 20 percent of the inhabitants of the territory required for “legal sufficiency” (see, Village Law ?§2-202[a][1]). Finally, Supervisor McGowan determined that the petition failed to meet statutory requirements in that the list of regular inhabitants annexed thereto was “incomplete.”

The instant Article 78 proceeding was commenced by petitioner pursuant to Village Law ?§2-210 to review and annul Supervisor McGowan’s determination of August 10, 2001. Respondents include Supervisor McGowan and the Town of Islip, as well as the four individuals who filed written objections pursuant to Village Law ?§2-204.

Two of the respondent/objectors, namely John P. Finnerty, Jr. and Ann M. Savino, now move for dismissal pursuant to CPLR 3211(a)(2) and (8) and 7804(f), on the grounds that they were not served in this proceeding in the manner required by Village Law ?§2-210(4)(b).

Section 2-210 provides:

(4) In addition to the requirements of said article seventy-eight: … b. If the proceeding be brought to review a decision adverse to the petition, copies of all papers in connection therewith shall be served on all persons designated by objectors to the petition pursuant to section 2-204 of this article and on all other objectors who have made no such designations and whose objections were submitted in writing and signed. Service shall be sufficient if made either personally or by certified mail with a return receipt (emphasis added).

It is undisputed that the movant/objectors were not served as this section directs. Instead, the papers were served upon Shapiro and Reich, Esqs.

In support of their motion to dismiss, the movant/objectors argue that they are necessary parties to this proceeding and that petitioner’s failure to serve them deprives the court of jurisdiction over them. The movant/objectors argue further that the failure to serve necessary parties prior to the expiration of the applicable statute of limitations requires dismissal of this proceeding in its entirety.

In opposition, petitioner argues, inter alia, that Shapiro and Reich were the “designees” of the movant/objectors for the purpose of service of papers, as permitted by Village Law ?§2-204. Petitioner argues further that if the movants are necessary parties over whom personal jurisdiction has not been obtained, the court should nevertheless excuse the non-joinder pursuant to CPLR 1001(b).

The court notes that it has been unable to locate reported cases which provide direct guidance on these issues. However, some guidance was provided by the legislature when enacting this article (then Article 3) of the Village Law:

[T]he least that must be done in recodifying this article is to make available a law which will clearly outline each step in the incorporation procedure. … [B]y allowing the proponents or opponents to designate parties to receive service of process relating to the incorporation, the bill simplifies the present awkward provisions for giving interested parties notice of litigation affecting the incorporation. … (Memoranda of Joint Legislative Committee on Villages, Sessions Laws 1964, Ch 755, p 1997 [emphasis added]).

What is clarified by the memorandum, at least, is that it is process that is to be served upon the objectors herein, not merely papers, confirming what Village Law 2-210(4)(d) recites, that “all persons served…are parties to such proceeding…” (emphasis added). As the objectors are parties, personal jurisdiction over them is required.

Moreover, this court agrees with the movants that objectors are necessary parties, as they may be “inequitably affected by a judgment” entered in this proceeding (CPLR 1001[a]; see, Katz v. Village of Southampton, 244 AD2d 461, 664 NYS2d 457 [2d Dept 1997], lv den 95 NY2d 753, 711 NYS2d 155 [2000]). Significantly, in a similar proceeding involving a village incorporation, the proponents thereof were deemed necessary parties whose non-joinder resulted in dismissal (Matter of Incorporation of Village of Purchase, 80 Misc2d 541, 363 NYS2d 183 [Supreme Ct, Westchester Co 1974]). As objectors have no less a stake in the outcome than proponents of an incorporation, the same rule must apply.

The court also agrees that the movant/objectors’ hiring of attorneys to represent them at the public hearing was not tantamount to a designation for the service of process. Neither may such designation be inferred from the retainer letters executed by the movants, copies of which were sent to the Town. The plain language of the letters authorized Shapiro and Reich to “represent [them] and present [their] objections…to the Town Supervisor at any hearing scheduled to hear such objections” (emphasis added), and nothing more. The words “designate” and “service” and “papers” appear nowhere. Without the written designation of an attorney for the receipt of service pursuant to Village Law ?§2-204 or some other statute (see, e.g. CPLR 318), personal jurisdiction of the client is not obtained (see, Bowman v. Stern, 172 AD2d 475, 567 NYS2d 829 [2d Dept 1991]).

Finally, the court must determine whether the movant/ objectors are so “indispensable” to this proceeding that it may not continue in their absence pursuant to CPLR 1001(b). Petitioner argues that the rights of the movants are adequately protected by the objectors who have been properly served and joined as respondents. However, nothing submitted indicates that the objectors who have been joined have retained Shapiro and Reich, or other counsel, or are representing themselves. As such, a continuity of legal acumen and strategy has not been demonstrated, and it cannot be stated affirmatively that the movants’ interests will be protected.

In addition, “[c]onsidering the ease with which petitioner could have avoided this dilemma by simply joining them in the first instance (see, CPLR 1001[b][3]), this failure should not be excused in the interest of justice” (Matter of LLana v. Town of Pittstown, 245 AD2d 968, 969, 667 NYS2d 112 [3d Dept 1997], lv den 91 NY2d 812, 672 NYS2d 848 [1997]). Service by certified mail is a particularly uncomplicated method of obtaining jurisdiction. However, if petitioner’s ability to effect service in that manner had somehow been impeded, an application pursuant to CPLR 308(5) could have been made, as it was where it was necessary to serve 400 objectors (Matter of Incorporation of Proposed Village of Kaser, 123 AD2d 320, 506 NYS2d 347 [2d Dept 1986]).

As petitioner has failed to demonstrate his entitlement to relief pursuant to CPLR 1001(b), this court is constrained to grant the movant/objectors’ motion to dismiss this proceeding in its entirety.

The motion of the Town and cross motion of petitioner are denied as academic.