IN RE: CONNECTIVITY SYSTEMS (2024)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review (1) so much of a determination of the Town of Ramapo Zoning Board of Appeals dated May 7, 2019, as, after a hearing, imposed conditions upon the granting of certain area variances, and (2) a determination of the Town of Ramapo Planning Board dated May 14, 2019, which, after a hearing, denied the petitioner's application for amended site plan approval, the proposed intervenors, Yosef Green and Shimon Green, appeal from an order and judgment (one paper) of the Supreme Court, Rockland County (Thomas P. Zugibe, J.), dated May 13, 2020.  The order and judgment, insofar as appealed from, denied, as academic, the proposed intervenors’ motion for leave to intervene in the proceeding, granted the petition, annulled so much of the determination dated May 7, 2019, as imposed conditions upon the granting of certain area variances, annulled the determination dated May 14, 2019, and, in effect, directed the Town of Ramapo Planning Board to grant the application for amended site plan approval.

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof denying the proposed intervenors’ motion for leave to intervene as academic, and substituting therefor a provision denying the motion on the merits;  as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

Connectivity Systems, LLC (hereinafter the developer), is building a mixed-use development on property located in the Town of Ramapo.  The developer commenced this proceeding pursuant to CPLR article 78 to challenge so much of a determination of the Town of Ramapo Zoning Board of Appeals (hereinafter the ZBA) dated May 7, 2019, as imposed certain conditions upon the granting of certain area variances, as well a determination of the Town of Ramapo Planning Board (hereinafter the Planning Board) dated May 14, 2019, denying an application for amended site plan approval.  Yosef Green and Shimon Green (hereinafter together the Greens) moved for leave to intervene in the proceeding.

The Supreme Court denied the motion for leave to intervene as academic, on the ground that the Greens had commenced a separate proceeding pursuant to CPLR article 78 in the same court, entitled Matter of Green v. Town of Ramapo, under Index No. 32941/19, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 2307199, in which they challenged the granting of the same variances at issue here, and the petition in that proceeding had been denied and that proceeding dismissed.  The court granted the petition, annulled so much of the ZBA's determination as imposed certain conditions upon the granting of certain area variances, annulled the Planning Board's determination, and, in effect, directed the Planning Board to grant the developer's application for amended site plan approval.  The Greens appeal.

The motion for leave to intervene was not rendered academic by the dismissal of the separate CPLR article 78 proceeding commenced by the Greens.  That proceeding was dismissed for lack of standing (see Matter of Green v. Town of Ramapo, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 2307199 [decided herewith]), which required consideration of different criteria than the instant motion for leave to intervene.

The Greens contend that the Supreme Court previously had orally granted their motion for leave to intervene at an appearance on September 19, 2019.  As the parties had a full and fair opportunity to litigate that determination, it became law of the case and was binding on courts of co-ordinate jurisdiction (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867).  However, this Court is not bound by the doctrine of law of the case (see Ramanathan v. Aharon, 109 A.D.3d 529, 970 N.Y.S.2d 574).

The Greens failed to show their entitlement to intervene in this proceeding.  CPLR 7802(d) provides that in a CPLR article 78 proceeding, “[t]he court ․ may allow other interested persons to intervene.”  As CPLR 7802(d) grants the court broader power to allow intervention than is provided pursuant to CPLR 1012 or 1013 in an action, intervention should generally be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings (see Matter of Bernstein v. Feiner, 43 A.D.3d 1161, 842 N.Y.S.2d 556).  However, “when deciding whether to grant such a request, a court may properly balance the benefit to be gained by intervention, and the extent to which the proposed intervenor may be harmed if it is refused, against other factors, such as the degree to which the proposed intervention will delay and unduly complicate the litigation” (Matter of Pier v. Board of Assessment Review of Town of Niskayuna, 209 A.D.2d 788, 789, 617 N.Y.S.2d 1004).

Here, these factors weigh against permitting the Greens to intervene.  The adjacent property, upon which the Greens claim to reside, is not affected by the variances granted in the ZBA's determination.  Furthermore, the record indicates that the adjacent property is not part of the development property.  The Greens failed to set forth any evidence to the contrary.  Thus, the Greens failed to show that they have a real and substantial interest in the outcome of this proceeding.  Moreover, permitting the Greens to intervene at this late stage of the proceeding would cause undue delay and prejudice to the developer.  Accordingly, the Supreme Court should have denied the motion for leave to intervene on the merits.

Having determined that the Greens’ motion for leave to intervene should have been denied on the merits, we do not reach the Greens’ contentions regarding the merits of the petition.  Accordingly, since we have been presented with no basis to disturb the portion of the order and judgment that granted the petition, annulled so much of the ZBA's determination as imposed certain conditions upon the granting of certain area variances, annulled the Planning Board's determination, and, in effect, directed the Planning Board to grant the developer's application, we affirm that portion of the order and judgment.

LASALLE, P.J., CHAMBERS, CHRISTOPHER and TAYLOR, JJ., concur.