Matter of Pirrotti v Town of Greenburgh

[*1] Matter of Pirrotti v Town of Greenburgh 2009 NY Slip Op 52309(U) [25 Misc 3d 1226(A)] Decided on October 28, 2009 Supreme Court, Westchester County Capeci, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 28, 2009
Supreme Court, Westchester County

In the Matter of the Application of the Leonore L. Pirrotti, Petitioner, For a Judgment Pursuant to CPLR Article 78

against

Town of Greenburgh and PLANNING BOARD OF THE TOWN OF GREENBURGH, Respondents.



18135-09



Law Office of Anthony J. Pirrotti, P.C.

Attorney for Petitioner

501 Ashford Avenue

Ardsley, New York 10502

Timothy W. Lewis, Esq.

Town Attorney for Respondents

177 Hillside Avenue

Greenburgh, New York 10607

Silverberg Zalantis LLP

Attorneys for Intervenor-Respondents

Joel Friedberg and Chauncey Partners LLC

3 Barker Avenue

White Plains, New York 10601

Susan M. Capeci, J.

Petitioner makes this application by Order to Show Cause dated August 18, 2009 seeking relief pursuant to CPLR Article 78 and a declaratory judgment: a) granting a judgment pursuant to §107 of the Open Meetings Law to declare null and void any action or part thereof taken by the respondents in violation of the Open Meetings Law; b) declaring null and void the action of the Planning Board of the Town of Greenburgh to empower a development known as "Chauncey Estates" to pursue development in violation of health, safety and property rights of property owners on a private road known as Eastway; c) for a judgment declaring that Winding Farm Road and Winding Farm Road East located in the Town of Greenburgh are private roads, and as such cannot be widened or enlarged without the consent of adjoining property owners; d) awarding petitioner attorney's fees and disbursements; and e) for such other and further relief as this Court deems proper.

The petitioner further moves, by Order to Show Cause dated September 16, 2009, to disqualify the respondents' attorney, Timothy Lewis, Esq., the Town Attorney for the Town of Greenburgh, on the basis that he would be called as a witness at the time of trial as to what occurred at a meeting held on July 9, 2009.

The respondents oppose the relief sought in the article 78 petition in its entirety, including a declaratory judgment in petitioner's favor, as will be further set forth in the discussion of each point below. The respondents additionally oppose the petitioner's motion to disqualify their attorney, Timothy Lewis, contending that there was no violation of the Open Meetings Law and thus nothing relevant for him to testify about, and that in any event, there are other individuals who could testify about the same matters. [*2]

The Court is also in receipt of a motion by proposed-intervenors-respondents Joel Friedberg and Chauncey Partners, LLC for leave to intervene in this action pursuant to CPLR §1013 or §7802(d), and deeming their verified Answer with counterclaims and cross-claim to have been duly filed and served. The proposed intervenors also seek to join as necessary parties all owners of property abutting the roadway which is the subject of this proceeding, known as Eastway, Winding Road Farm and Winding Road Farm East (hereinafter collectively referred to as the "Road"). The petitioners oppose the motion of the proposed intervenors in its entirety, arguing that if they seek to determine ownership and/or easements on the Road of all the residents whose property borders the Road, this must be determined by way of a proceeding pursuant to RPAPL article 15 rather than by motion to intervene in this proceeding.

The respondents oppose the motion to intervene to the extent that it seeks to keep the Town and Planning Board involved in a private property dispute amongst the owners of land abutting the Road. The respondents also oppose the cross-claim asserted against them on the basis that the Town has no responsibility for maintenance or widening of the Road.

Factual Background

The petitioner in this matter is a homeowner of a one family home located on the Road in the Town of Greenburgh, acquired on January 21, 1974. The Road (encompassing Winding Road Farm, Winding Road Farm East and Eastway) is a private road, which has been maintained exclusively by the property owners of the homes abutting that road with respect to repair, maintenance, and snow removal. The Road in its present condition is substandard as to Town regulations for standard roadways (see Petition, Exhibit D) and is no more than 9.5 feet wide in areas.

In October 2006, the owner of a home located on and abutting the same street, Joel Friedberg, formed an entity known as Chauncey Partners, LLC ("Chauncey"), which purchased an additional 18.4 acre property abutting the Road. Chauncey has now filed an application with the Town of Greenburgh seeking to develop this 18.4 acre parcel of land, the southern portion of which may only be reached though access to the Road, into 9 separate lots, in order to build 8 new single family homes (Petition, Exhibit I). The application filed seeks a "Preliminary Subdivision, Wetland/Watercourse and a Planning Board Steep Slope Permit for property located at Eastway Road (a private road) and Ridge Road - Ardsley, NY, Case No. PB 06-25, Chauncey Subdivision." (Petition, Exhibit I). The Town of Greenburgh Planning Board scheduled a public hearing to commence on April 15, 2009 at 8:45 p.m. on the above application.

The public hearing began as scheduled on the evening of April 15, 2009. On that date there was comment from the project attorneys and a consulting firm appearing on behalf of the developer, followed by comments from members of the public (Mr. Rose, Mr. Pirrotti, Mr. Schwartz, Mrs. Pirrotti [the petitioner herein], Mr. Avallone, Ms. Peterson). The matter was adjourned to June 3, 2009 to continue the public hearing on the application. On June 3, 2009, the public hearing on the Chauncey application was continued, at which time a planning and engineering consultant from the Chauncey subdivision gave comments in response to some of the public concerns regarding the project, as did the project attorney. Members of the public also gave comments at this hearing (Mr. Dougherty, Ms. Cobleigh, Mr. Pirrotti). The meeting was adjourned until July 1, 2009. [*3]

At the continued public hearing on July 1, 2009, Thomas Madden, the Commissioner of the Department of Community Development and Conservation, reported that the Department of Community Development and Conservation was to meet with the Fire Chief the following week regarding the Chauncey project. At the proposed meeting with the Fire Chief, the project applicant was to attend, as well as members of the Town Law Department. The Fire Chief was to specifically review a June 23, 2009 memo that had been submitted by him to the Planning Board regarding the Chauncey project in which he raised a number of fire safety concerns. Further comment was had that evening from a member of the planning and engineering firm for the Chauncey project, as well as the project attorney.

The Chairwoman of the Planning Board then moved to adjourn the hearing until comment from the Ardsley Fire Chief could be obtained on the project. Two members of the public objected (Mr. Pirrotti and Mr. Rose), contending that the Chairwoman was preventing public comment on some of the issues raised by the project attorney, including the issue of easements with respect to the Road. The public hearing was then adjourned until August 5, 2009 over the objection of these members of the public.

A site visit was subsequently held at the proposed subdivision on July 9, 2009 which was attended by the applicant for the Chauncey project, his attorney and his engineer, the Ardsley Fire Chief, the Town attorney Timothy Lewis, and the Commissioner (Thomas Madden) and Assistant Commissioner (Garrett Duquesne) of Community Development and Conservation for the Town. No members of the public were invited to or did attend the site visit.

On August 5, 2009, the public hearing on the Chauncey application continued, at which time Garrett Duquesne, Assistant Planner of Community Development and Conservation, gave an update at the request of the Planning Board Chairwoman on the site visit (held on July 9, 2009) which had also been attended by the Ardsley Fire Chief and Town of Greenburgh staff. Mr. Duquesne stated that the Fire Chief had "signed off" on updated plans submitted to him by the applicant, finding that the plans were adequate from a fire safety perspective (Respondent's Aff. In Opposition to Order to Show Cause dated September 21, 2009, Exh. D at p.57, August 5, 2009 minutes).

Mr. Duquesne related that it was Fire Chief's recommendation that there be a 13 foot wide paved strip going all the way up to the development, with an additional one foot strip of gravel on either side, for a total width of 15 feet. The Fire Chief did not appear at the August 5, 2009 meeting. The applicant's engineering consultant gave comments on the widening of the Road. Members of the public also gave comments, many speaking in opposition to the widening of the Road and the project in general, (Ms. Bidel, Mr. Rose - speaking on behalf of other families residing at homes abutting the Road, Mr. Buckland, Mr. Medard, Ms. Tsagaris, Mr. Gross). The project attorney then made additional comments in response, to which a member of the public, Mr. Buckland, responded.

The Chairwoman then requested a motion be made that "this is a Type I action under SEQRA" which motion was made, seconded and passed. The Planning Board also passed a motion for a "negative declaration" and to close the public hearing on the Chauncey project. The record was to remain open until August 26, 2009, so that any written comment could be submitted by that date (Respondent's Aff. In Opposition to Order to Show Cause dated September 21, 2009, Exh. D at p.89, August 5, 2009 minutes).

[*4]Petitioner's Motion to Disqualify Respondent's Attorney

The petitioner seeks to disqualify the respondents' attorney, Timothy Lewis, Esq., Town Attorney of the Town of Greenburgh, pursuant to 22 NYCRR §1200.21 and the Code of Professional Responsibility DR §5-102(A)[FN1], arguing that his testimony will be required as to what occurred at a meeting held on July 9, 2009 which he attended and which the petitioner contends was conducted in violation of the Open Meetings Law, set forth in article 7 of the Public Officers Law.

The respondents oppose the motion to disqualify Mr. Lewis, contending that petitioner fails to explain why Mr. Lewis's testimony is necessary. They claim that the July 9, 2009 site visit was not a meeting of a "public body" and was thus not held in violation of the Open Meetings Law, and that in any event, there were other Town officials present on that date who would be available to testify on the issue of what occurred, if the need for testimony even arises in this case.

Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp, 69 NY2d 437, 445-446 (1987)). "Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (Id.; see also Wolfson v Posner, 57 AD3d 979 (2d Dept 2008)).

A party's entitlement to be represented in ongoing litigation by counsel of its own choosing is a valued right which should not be abridged absent a clear showing, on which the party seeking disqualification carries the burden, that counsel's removal is warranted (Goldstein v Held, 52 AD3d 471 (2d Dept 2008); Bentvena v Edelman, 47 AD3d 651 (2d Dept 2008)).

On the facts presented here, this Court finds that disqualification of the respondents' [*5]attorney Mr. Lewis is not warranted. The petitioner failed to offer proof as to any content or specific subject matter of testimony that might be elicited from respondents' attorney. Even assuming there was relevant testimony to be offered by Mr. Lewis, there were other persons present at the meeting in question who would be able to offer evidence regarding the content of what occurred there (Hudson Valley Marine, Inc. v Town of Cortlandt, 54 AD3d 999 (2d Dept 2008)). Moreover, since no hearing has been requested in this matter to date by the parties, it is not apparent there will be any testimony required. Accordingly, the petitioner's motion for disqualification of the respondents' attorney is denied.

Motion to Intervene by Joel Friedberg and Chauncey Partners, LLC

Joel Friedberg, a homeowner with property abutting the Road and who formed the entity Chauncey Partners, LLC, moves on behalf of himself and Chauncey, for leave to intervene in this action pursuant to CPLR §1013 or §7802(d), and deeming their verified Answer with counterclaims and cross-claim to have been duly filed and served. The proposed intervenors also seek to join as necessary parties all owners of property abutting the Road which is the subject of this proceeding.

The petitioners oppose the motion of the proposed intervenors in its entirety, arguing that if they seek to determine ownership and/or easements on the Road of all the residents whose property borders the Road, this must be determined by way of a proceeding pursuant to RPAPL article 15 rather than by motion to intervene in this proceeding.The respondents oppose the motion to intervene to the extent that it seeks to keep the Town and Planning Board involved in a private property dispute amongst the owners of land abutting the Road. The respondents also oppose the cross-claim asserted against them on the basis that the Town has no responsibility for maintenance or widening of the Road.

Intervention in proceedings pursuant to CPLR article 78 is permitted for "interested persons" (CPLR §7802(d)), and is a matter addressed to the sound discretion of the court (White v Inc. Village of Plandome Manor, 190 AD2d 854 (2d Dept 1993)). Based upon the fact that Chauncey is the project applicant which is seeking to build the subdivision at issue, and that Friedberg is a homeowner of property abutting the Road and is the principal of Chauncey, they both have a real and substantial interest in the outcome of this proceeding (see Stockdale v Hughes, 189 AD2d 1065 (3d Dept 1993) (apartment complex developer permitted to intervene in article 78 proceeding between adjacent landowners and the Town zoning board).

Since Chauncey and Friedberg will be directly affected by the outcome of this proceeding, they are clearly "interested persons" within the meaning of the statute and their motion seeking to intervene in this proceeding is granted (CPLR 7802(d); White v Inc. Village of Plandome Manor, supra; Matter of Elinor Homes Co. v St. Lawrence, 113 AD2d 25 (2d Dept 1985)). The intervenors' motion to deem their verified Answer with counterclaims and cross-claim to have been duly filed and served is also granted. However, for the reasons explained further infra, the counterclaims and cross-claim are dismissed.

Petitioner's Motion to Declare Null and Void any Action Taken by the Respondents in Violation of the Open Meetings Law [*6]

The petitioner alleges that the respondents violated the Open Meetings Law because members of the public were not permitted to speak at the public hearing on the Chauncey application held on July 1, 2009. Petitioner also contends that the site visit held on July 9, 2009 which was attended by the Ardsley Fire Chief and Town of Greenburgh staff along with the applicant and his representatives constituted a meeting of public body which improperly excluded the public.

The respondents Town of Greenburgh and Planning Board contend that there was no violation of the Open Meetings Law since the petitioner and other members of the public were given ample opportunity to speak at the public hearings on the Chauncey application, and that the July 9, 2009 site visit was not a meeting of public body which required public notice and access. The intervenors have made no argument with respect to this issue.

The Open Meetings Law ("OML"), which is set forth in article 7 of the Public Officers Law, provides generally that "[e]very meeting of a public body shall be open to the general public" (Open Meetings Law §103(a)[FN2]; Gordon v Village of Monticello, 87 NY2d 124 (1995)). The legislative declaration contained in §100 of the OML states, in part : "It is essential to the maintenance of a democratic society that the public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy" (Open Meetings Law §100). The cornerstone of the OML is that decisions made by public bodies should be made publicly (Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 686 (1996)).

"The OML is violated when a quorum of a public body holds a private meeting for the purpose of transacting public business, thus making unavailable for public scrutiny that body's deliberative process" (Matter of MCI Telecommunications Corp. v Public Service Commission of the State of New York , 231 AD2d 284 (3d Dept 1997); see also Matter of Orange County Publications v Council of the City of Newburgh, 60 AD2d 409 (2d Dept 1978)). The OML defines a "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof...or committee or subcommittee or other similar body of such public body" (Open Meetings Law §102(2); see also Gen. Construction Law § 41). A "meeting" is defined in the OML as the "official convening of a public body for the purpose of conducting public business..." (Open Meetings Law §102(1)).

The petitioner first contends that a violation of the OML occurred because members of the public were not permitted to speak at the public hearing on the Chauncey application held on July 1, 2009. With respect to the Chauncey application at issue here, the transcripts of the meetings of the Planning Board of the Town of Greenburgh submitted by the respondents in connection with their papers in opposition indicate that public hearings were held on four separate occasions, April 15, 2009, June 3, 2009, July 1, 2009 and August 5, 2009. The petitioners do not claim that the public was precluded from attending these meetings, but rather, [*7]that the Planning Board limited the public's ability to respond to comments made by the developer at the July 1, 2009 meeting.

Although the intended purpose of the OML is to open the decision-making process of elected officials to the public, while at the same time protecting the ability of government to carry out its responsibilities (Gordon v Village of Monticello, supra at 126), the OML is designed to foster public awareness, not to assure public participation (Puka v Greco, 119 Misc 2d 696 (Sup. Ct, Nassau Co. 1983)).

A review of the July 1, 2009 transcript indicates that the Planning Board Chairwoman adjourned the meeting in order to obtain comment from the Ardsley Fire Chief on the project. The Fire Chief was unable to appear at the meeting, and the Chairwoman adjourned the hearing until August 5, 2009 so that his comments could be obtained before further discussion of the application. Although two members of the public did object to the adjournment, there was no request on the record from the petitioner to speak on the night of July 1, 2009.

Moreover, members of the public were afforded a further opportunity to comment on the Chauncey application at the subsequent August 5, 2009 public hearing, and in fact, many members of the public did offer their comments at that time (Ms. Bidel, Mr. Rose - speaking on behalf of other families residing at homes on the Road, Mr. Buckland, Mr. Medard, Ms. Tsagaris, Mr. Gross). Under these circumstances, the petitioner failed to show that the Planning Board violated the OML with regard to the July 1, 2009 public hearing. The public was afforded ample opportunity to comment on the proposed application during the course of the four public hearings held (see Matter of Ramapo Homeowners Assoc. v Town of Ramapo, 2 AD3d 529 (2d Dept 2003)).

The petitioner also contends that the July 9, 2009 site visit attended by the project applicant, his attorney and his engineer, along with the Ardsley Fire Chief, the Town attorney Timothy Lewis, and the Commissioner and the Assistant Commissioner of Community Development and Conservation for the Town constituted a violation of the OML, as it was not open to members of the public.

Since the OML requires that "[e]very meeting of a public body shall be open to the general public," the issue is whether the July 9, 2009 site visit constituted the meeting of a "public body" as defined in the OML. As previously noted, under the OML, a "public body" is "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof...or committee or subcommittee or other similar body of such public body" (OML §102(2)).

The Town Planning Board minutes indicate that the there are 7 members of the Planning Board of the Town of Greenburgh (see Planning Board minutes at Respondent's Aff. In Opposition, Exhibits A-D )[FN3]. Since none of the members of the Town Planning Board were in attendance at the July 9, 2009 site visit with the Ardsley Fire Chief, there cannot be said to have been a quorum required in order to conduct public business (OML §102(2); Gen. Construction [*8]Law § 41; Jae v Board of Education of Pelham Union Free Schl. Dist., 22 AD3d 581 (2d Dept 2005)).

The petitioner has failed to satisfy the burden of establishing that the Planning Board violated the OML, when there has been no showing that a quorum of its members were present any meeting (Matter of Halperin v City of New Rochelle, 24 AD3d 768 (2d Dept 2005) [zoning board held not to have violated Open Meetings Law by consulting, in the absence of a quorum, with its attorneys or retained experts]). Since the July 9, 2009 site visit did not meet the definition of a "meeting" of a "public body" under the OML, the Court finds that no violation of the OML occurred as a result of the exclusion of the public from this site visit.

The Court also finds no merit to the petitioner's unsupported and conclusory claim that the Town Attorney and Town Planner acted as agents or de facto members of the Planning Board in attending the July 9, 2009 meeting (see Hill v Planning Bd. of the Town of Amherst, 140 AD2d 967 (4th Dept 1988)).

In any event, not every violation of the OML automatically triggers its enforcement sanctions (Gordon v Monticello, supra at 127; New York University v Whalen, 46 NY2d 734 (1978)). In furtherance of the public policy behind the OML, courts are empowered in their discretion and upon good cause shown, to declare void any action taken by a public body in violation of the mandate of this legislation (New York University v Whalen, supra).

The petitioner's motion pursuant to article 78 for a judgment pursuant to §107 of the OML to declare null and void any action or part thereof taken by the respondents in violation of the Open Meetings Law is denied.

Petitioner's Application to Declare Null and Void the Action of the Planning Board of the Town of Greenburgh to Empower a Development known as "Chauncey Estates" to Pursue Development

The petitioner further seeks to declare "null and void" any action of the Planning Board to empower development of Chauncey Estates. However, as argued by the respondents and the intervenors, the Court's review of the transcripts of the Planning Board meetings held on this proposed subdivision indicate that the Planning Board has not taken any definitive action on the application. At the close of the public hearings on this matter, the Planning Board passed a resolution that "this is a Type I action under SEQRA," and passed a motion for a "negative declaration." Thereafter, the only actions taken were to close the public hearing on the Chauncey project and allow the record to remain open until August 26, 2009, so that any written comment could be submitted by that date (see Respondent's Aff. In Opposition to Order to Show Cause dated September 21, 2009, Exh. D at p.89, August 5, 2009 minutes).

Since the Planning Board has not taken any formal action to empower development of the Chauncey subdivision beyond the limited extent of holding hearings on the application, the petitioner's motion is denied.

Petitioner's Motion Seeking a Declaratory Judgment that the Road is a Private Road, and as such Cannot be Widened or Enlarged Without the Consent of Adjoining Property Owners [*9]

The petitioner also seeks a declaratory judgment to the effect that the Road is a private roadway and that it may not be widened or enlarged without the consent of adjoining property owners.

The respondents first contend that since this cause of action seeks to limit the rights of others who are necessary parties to this action, it should be dismissed for nonjoinder of necessary parties. The respondent Town further argues that the rights to use and expansion of the private road must be litigated between the homeowners and Mr. Friedberg (the applicant of the Chauncey subdivision), and that the Town should not be named in such dispute. The respondents also argue that any permits and approvals may not be denied by the Town on the basis that they are in violation of a restrictive covenant or easement.

The uses that may be made of land under a zoning or other Town ordinance and the uses of the same land under an easement or restrictive covenant are, generally, separate and distinct matters, the ordinance being a legislative enactment and the easement or covenant a matter of private agreement (Friends of Shawangunks, Inc. v Knowlton, 64 NY2d 387 (1985); Your Money, Inc. v Planning Bd. of the Town of Huntington, 5 Misc 3d 1002A (Sup. Ct, Suffolk Co. 2004)). In accordance with this premise, it is not the obligation of a municipality to enforce a private easement (Vandoros v Hatzimichalis, 131 AD2d 752 (2d Dept 1987)).

Thus, if there is the existence of private easements or other restrictions on title to the Road, that is an entirely separate issue from whether the respondents in this proceeding, the Town of Greenburgh and the Planning Board, may properly issue a permit with respect to the Chauncey application (see Chambers v Old Stone Hill Road Assoc., 1 NY3d 424 (2004); Friends of Shawangunks, supra; Ewing v Watson, 15 AD3d 340 (2d Dept 2005)). Accordingly, the Town of Greenburgh and the Planning Board are not implicated in any determination as to private property ownership rights in the Road.

Any determination with respect to the rights to enlarge or widen the Road necessarily impacts the property rights of all those property owners whose land abuts the private Road. Notably, none of the property owners whose land abuts the Road have been joined in this proceeding, and it is not clear based on the information provided to this Court, in the absence of joinder of these parties, whether these property owners actually own a portion of the Road in fee or whether they hold express or implied easements in the Road (see, e.g., Minassian v Temares, 16 AD3d 634 (2d Dept 2005)).

Although the petitioner seeks "a declaratory judgment that the Road is a private roadway and that it may not be widened or enlarged without the consent of adjoining property owners," the petitioner has argued in opposition to a motion by Mr. Friedberg and Chauncey Partners LLC to intervene in this proceeding and to join the other homeowners with land abutting the Road. The petitioner argues that the proposed intervenors should instead bring a proceeding pursuant to RPAPL article 15 to determine the rights to ownership of the Road rather than be permitted intervene in this article 78 proceeding.

Since the petitioner in this action is arguing in opposition to joining the remaining property owners whose land abuts the Road, and the property rights of these individuals are necessarily affected by any determination with respect to the Road, the petitioner's application for a declaratory judgment must be dismissed, without prejudice, for nonjoinder of necessary parties (CPLR §1001(a); §1003; Hitchcock v Boyack, 256 AD2d 842 (3d Dept 1998); Katz v Village of [*10]Southampton, 244 AD2d 461 (2d Dept 1997); Phillips v Town of Stony Point, 104 AD2d 1033 (2d Dept 1984)).

With respect to the additional counterclaims and cross-claim asserted by the intervenors, each of these claims require a determination of the rights of the property owners whose land abuts the Road, who, as noted above, have not been joined in this proceeding. The Court agrees with the petitioner that any determination of the private property rights to this Road and of these parties should be brought in the context of a separate proceeding, such as pursuant to RPAPL article 15, rather than in this article 78 proceeding commenced against the Town and Planning Board (see Your Money, Inc.v Planning Bd. of the Town of Huntington, supra; Oliphant v McCarthy, 208 AD2d 1079 (3d Dept 1994); Fischer v Liebman, 137 AD2d 485 (2d Dept 1988).

The parties' respective motions seeking attorneys' fees are denied (Gordon v Village of Monticello, supra at 128)).

Accordingly, the article 78 petition is hereby dismissed for the foregoing reasons.

The Court considered the following papers on this application:

1) Order to Show Cause dated August 18, 2009; Verified Petition in support of Article 78 Proceeding dated August 14, 2009; Affidavit of A. Pirrotti in support, Exhibits A-V; Order to Show Cause dated September 16, 2009 to disqualify respondents' attorney; Affirmation of A. Pirrotti in support, Exh. A; 2) Respondents' Affirmation in Opposition dated September 21, 2009; Affirmation of T. Lewis dated September 21, 2009; verified Answer dated September 21, 2009; Exhibits A-J; 3) Respondents' Affirmation in Opposition to Motion to disqualify dated September 24, 2009, Exh. A; 4) Reply Affidavit of A. Pirrotti in further support of article 78 Petition dated September 25, 2009; Exh. V-X; Reply Affirmation of A. Pirrotti in support of Order to Show Cause to disqualify dated September 25, 2009, Exh. B; 5) Notice of Motion for leave to intervene dated September 22, 2009; Affirmation of S. Silverberg in support, Exhibit A; Affidavit of J. Friedberg dated September 22, 2009, Exh. 1; Affidavit of D. Amicucci dated September 22, 2009, Exh. A-H; Memorandum of Law in support of application to intervene; 6) Petitioner's Affirmation in Opposition to Motion to intervene dated September 28, 2009; Affidavit of S. Schwartz in opposition to motion to intervene dated September 28, 2009, Exhibits A-E; 7) Affirmation of respondents in partial support and partial opposition to motion to intervene dated September 29, 2009; Amended Affirmation in partial support and partial opposition to motion to intervene dated September 30, 2009; 8) Reply affirmation to motion to intervene of S. Silverberg dated September 29, 2009, Exh. A; 9) Sur-reply affirmation of A. Pirrotti in opposition to motion to intervene dated October 1, 2009, Exh. G-F.

This constitutes the decision, order and judgment of this Court.

Dated:White Plains, New York

October 28, 2009

HON. SUSAN M. CAPECI

Acting Supreme Court Justice
Footnotes

Footnote 1: New Rules of Professional Conduct became effective in New York as of April 1, 2009. The following Rule set forth at 22 NYCRR § 1200.29 (Rule 3.7) Lawyer as Witness, replaced the prior DR §5-102 set forth at 22 NYCRR § 1200.21. The New Rule is similar, but not identical to the prior rule (see Losquadro v Carltun on the Partk, Ltd., 2009 NY Misc LEXIS 2127 (Sup. Ct, Nassau Co. 2009)).

Lawyer as Witness:

(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

(b) A lawyer may not act as advocate before a tribunal in a matter if:

(1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client; or

(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.

Footnote 2: An executive session, defined as "that portion of a meeting not open to the general public" (OML §102(3)) may be held in accordance with the strict limitations of §105 of the OML. There is no specific claim being asserted that an executive session was conducted by the Town Planning Board herein.

Footnote 3: The members of the Town of Greenburgh Planning Board are listed as: Frances McLaughlin, (Chairwoman), Mohamed Ayoub, Kirit Desai, Stephanie Kavourias, Hugh Schwartz, Walter Simon and Vic Weinstein.