IN RE: LONG ISLAND POWER AUTHORITY (2026)

DECISION & ORDER

In related proceedings pursuant to Real Property Tax Law article 7 to review real property tax assessments for the tax years 2010 to 2022, (1) nonparty Incorporated Village of Island Park appeals from (a) an order of the Supreme Court, Nassau County (Vito M. Destefano, J.), dated May 25, 2022, and (b) a so-ordered stipulation of the same court entered May 27, 2022, and (2) nonparty Town of Hempstead separately appeals from (a) an order of the same court entered May 27, 2022, and (b) the so-ordered stipulation entered May 27, 2022.  The order dated May 25, 2022, denied the motion of nonparty Incorporated Village of Island Park, inter alia, pursuant to CPLR 1012 or 1013 for leave to intervene in the proceedings.  The order entered May 27, 2022, denied the motion of nonparty Town of Hempstead, among other things, pursuant to CPLR 1012 or 1013 for leave to intervene in the proceedings.

ORDERED that the appeals from the so-ordered stipulation are dismissed, as the nonparty-appellants are not aggrieved by the so-ordered stipulation (see CPLR 5511);  and it is further,

ORDERED that the order dated May 25, 2022, is affirmed;  and it is further,

ORDERED that the order entered May 27, 2022, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the petitioner.

In April 2016, Long Island Power Authority and its subsidiary, Long Island Lighting Company (hereinafter together the LIPA entities), commenced the first of 19 tax certiorari proceedings against the Board of Assessors and/or the Assessor of the County of Nassau and the Nassau County Assessment Review Commission (hereinafter collectively the County respondents) concerning assessments of certain real properties located in the Town of Hempstead, Town of North Hempstead, and Town of Oyster Bay.

In November 2021, the LIPA entities and the County respondents entered into a joint trial stipulation and consent order, wherein it was stipulated that all of the proceedings were procedurally and timely commenced and properly served and all of the proceedings were joined for trial, which was scheduled to commence on May 31, 2022.

In March 2022, the Town of Hempstead moved, inter alia, pursuant to CPLR 1012 or CPLR 1013 for leave to intervene in the proceedings.  In April 2022, the Village of Island Park moved, among other things, for the same relief.  The Town and the Village (hereinafter together the proposed intervenors) sought intervention to assert a claim and a defense that the Supreme Court lacked subject matter jurisdiction because the LIPA entities failed to satisfy a condition in a power supply agreement they had entered into in 1997 and/or that power supply agreements entered into in 2007 and 2012 (hereinafter collectively the power supply agreements) that the LIPA entities relied upon as the basis for the petitions were never approved by the Public Authorities Control Board and, therefore, the LIPA entities were not authorized to challenge the real property tax assessments.

In an order dated March 25, 2022, and an order entered March 27, 2022, the Supreme Court denied the proposed intervenors' separate motions on the grounds that the motions were untimely and that intervention was not warranted in any event.  Thereafter, in a so-ordered stipulation entered March 27, 2022, the LIPA entities and the County respondents agreed to settle and discontinue the pending proceedings.  The proposed intervenors appeal.

“Subject matter jurisdiction is a power to adjudge concerning the general question involved in litigation, and is not dependent upon the state of facts which may appear in a particular case” (Henry v. New Jersey Tr. Corp., 39 NY3d 361, 371 [internal quotation marks omitted];  see Lischinskaya v. Carnival Corp., 56 AD3d 116, 122).  “[T]he Supreme Court of the State of New York cannot be divested of its jurisdiction even by the Legislature” (Lischinskaya v. Carnival Corp., 56 AD3d at 122).  “Nothing in the language of RPTL 706 purports to limit the subject matter jurisdiction of Supreme Court over a tax certiorari petition, when the petition is verified by an agent of the petitioner and the agent's authorization does not accompany the petition” (Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86).

The Supreme Court correctly determined that the LIPA entities followed the procedures under Real Property Tax Law article 7 and timely commenced the tax certiorari proceedings and, therefore, the proceedings were properly before the court (see Matter of Miller v. Board of Assessors, 91 N.Y.2d at 86;  Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 244).  Thus, the issues the proposed intervenors raised concerning the power supply agreements did not affect the subject matter jurisdiction of the court (see Lischinskaya v. Carnival Corp., 56 AD3d at 122).

Intervention under CPLR 1012 and 1013 requires a timely motion (see Genzler v. JPMorgan Chase Bank, N.A., 228 AD3d 838, 840;  Deutsche Bank Natl. Trust Co. v Allenstein, 201 AD3d 783, 785).  “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance since a timely motion for leave to intervene should be granted, in either event, where the intervenor has a real and substantial interest in the outcome of the proceedings” (Genzler v. JPMorgan Chase Bank, N.A., 228 AD3d at 840 [internal quotation marks omitted];  see Wells Fargo Bank, N.A. v. McLean, 70 AD3d 676, 677).

“[I]n determining whether a motion to intervene is timely, a court should consider the time between the proposed intervenor's knowledge of the basis for the motion and the making of the motion, and whether any delay in seeking intervention caused prejudice to a party” (Onewest Bank, FSB v. Harrington, 213 AD3d 682, 683).  Here, the motions to intervene were untimely as they were made nearly six years after the LIPA entities submitted their first petition and, in the case of the Village, after a settlement had been reached (see Town of Warwick v. Black Bear Campgrounds, 168 AD3d 1020, 1021;  Matter of Rutherford Chems., LLC v Assessor of Town of Woodbury, 115 AD3d 960, 961).  Moreover, the proposed intervenors failed to demonstrate that they would have a real and substantial interest in the outcome of the litigation, as they did not establish that they would be liable for any potential tax refunds (see Dekalb Assets 2015, LLC v. Roman, 219 AD3d 800, 801;  Vantage Petroleum v Board of Assessment Review of Town of Babylon, 91 A.D.2d 1037, 1037–1038).

The parties' remaining contentions need not be reached in light of our determination.

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.