Bernstein v Feiner
Annotate this CaseDecided on February 1, 2018
Supreme Court, Westchester County
Robert B. Bernstein, AUBREY G. DANIELS, AND HOWARD J. HIRSCH, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
Paul Feiner in his official capacity as Supervisor of the Town of Greenburgh, NANCY BLANK, THOMAS BLANK, ROBERT P. CERRATO, LLOYD CORT, MONA FRAITAG, JOAN GARDNER, GLENROY GORDON, FRANKLIN R. KAIMAN, JANET LINN, TRACY C. MAIRS, JOHN M. MARTIN, EDWARD MASSENA, MARTIN PAYSON, HELENE M. ORCE, HUGH SCHWARTZ, SYLVIA SIMON, DONALD SIEGEL, JOANNE F. SIEGEL, WILLIAM STANTON, ALICE STRAUSS, AND STEVEN J. WILLARD, Respondents.
58799/17
Robert B. Bernstein, Esq.
Bernstein and Associates, PLLC
Attorneys for Petitioners
2 Overhill Road, Suite 400
Scarsdale, New York 10583
Robert Spolzino, Esq.
Smith, Buss & Jacobs, LLP
Attorneys for Respondent Paul Feiner
739 Yonkers Avenue
New York, New York 10704
Darius P. Chafizadeh, Esq.
Harris Beach, PLLC Attorney for Respondents Nancy Blank, Thomas Blank, Robert P. Cerrato, Lloyd Cort, Mona Fraitag, Joan Gardner, Glenroy Gordon, Tracy C. Mairs, John M. Martin, Edward Massena, Martin Payson, Helen M. Orce, Sylvia Simon, Donald Siegel, Joanne F. Siegel, William Stanton and Alice Strauss
445 Hamilton Avenue, Suite 1206
White Plains, New York 10601
Franklin R. Kaiman
Respondent, Pro Se
Janet B. Linn
Respondent, Pro Se
Hugh Schwartz
Respondent, Pro Se
Susan M. Cacace, J.
The following papers, numbered one (1) through thirteen (13) were read upon
consideration of this petition for relief pursuant to Article 78 of the Civil Practice Law and Rules (CPLR):
Notice of Petition - Verified Petition with Exhibits 1
Affidavit in Support with Exhibit 2Affirmation in Support 3
Memorandum of Law in Support 4
Verified Answer of Respondent Janet Linn 5
Verified Answer of Respondent Hugh Schwartz 6
Verified Answer of Respondent Franklin R. Kaiman 7
Verified Answer of Respondents Nancy Blank, Thomas Blank, Robert P. Cerrato, Lloyd Cort, Mona Fraitag, Joan Gardner, Glenroy Gordon, Tracy C. Mairs, John M. Martin, Edward Massena, Martin Payson, Helen M. Orce, Sylvia Simon, Donald Siegel, Joanne F. Siegel, William Stanton, Alice Strauss, and Steven J. Willard 8
Affirmation in Opposition of Respondents Nancy Blank, Thomas Blank, Robert P. Cerrato, Lloyd Cort, Mona Fraitag, Joan Gardner, Glenroy Gordon, Tracy C. Mairs, John M. Martin, Edward Massena, Martin Payson, Helen M. Orce, Sylvia Simon, Donald Siegel, Joanne F. Siegel, William Stanton, Alice Strauss, and Steven J. Willard 9
Verified Answer of Respondent Paul Feiner 10
Memorandum of Law in Opposition of Respondent Paul Feiner with Exhibits 11
Reply Memorandum of Law in Support with Exhibits 12
Reply Affidavit in Support 13
Upon the foregoing papers, it is decided, ordered and adjudged that the instant petition is
addressed as follows:
Procedural History
The petitioners bring this hybrid proceeding for a judgment and declaratory relief by verified petition submitted pursuant to CPLR Article 78, challenging the decision made by respondent Paul Feiner in his capacity as the Town Supervisor of the Town of Greenburgh, dated May 5, 2017, which denied a petition for incorporation (hereinafter, the Incorporation Petition) filed on behalf of those residents of the Town of Greenburgh who were seeking the legal authority to conduct a referendum regarding the potential creation of the incorporated Village of Edgemont from within the Town of Greenburgh pursuant to Article 2 of the Village Law (hereinafter, the challenged decision). The petitioners are both supporters of the Incorporation Petition and proponents of the creation of an incorporated Village of Edgemont, who by the instant petition seek various forms of relief from this Court, including (1) the reversal, vacatur and annulment of the challenged decision made by respondent Paul Feiner, (2) the issuance of a declaration that the Incorporation Petition is legally sufficient under the New York State Village Law, and (3) the issuance of an order directing the Town Clerk of the Town of Greenburgh to post notices of election within 10 days from the date of issuance of this Court's determination of the instant petition, based upon allegations that the challenged decision was illegal, was based upon insufficient evidence and was contrary to the weight of the evidence.
Upon the filing of a pre-answer motion to dismiss the instant petition pursuant to CPLR 7804(f), respondent Paul Feiner, as joined by each and all of the remaining individual respondents who registered their objections to the Incorporation Petition during the public hearings held thereupon, alleged only that the instant petition impermissibly includes substantive information which was not considered by respondent Feiner when he rendered the challenged decision. The petitioners jointly opposed the respondents' respective dismissal motions, and by Decision and Order, dated October 16, 2017, this Court denied the respondents' respective motions to dismiss this proceeding upon finding that the instant petition raises allegations related to the challenged decision which, if proven, would support the petitioners' request for relief in the form of the annulment and vacatur of the challenged decision, and would afford the petitioners the legal authority to conduct a referendum regarding the proposed creation of the incorporated Village of Edgemont from within the Town of Greenburgh pursuant to Article 2 of the Village Law.
Upon consideration of the respective answers filed by each of the respondents, individually or on their behalf, and upon consideration of the reply filed collectively on behalf of the petitioners, yet excluding consideration of the sur-reply affidavit of non-party Matthew A. Beyer and the sur-reply affirmation of respondent Feiner which were submitted without leave of Court, this Court has resolved the instant petition for relief as follows:
Factual Findings
The record presented establishes that the petitioners are residents of the Town of Greenburgh who were seeking the legal authority to conduct a referendum regarding the potential creation of the incorporated Village of Edgemont from within a presently unincorporated area of the Town of Greenburgh pursuant to Article 2 of the Village Law, who pursued efforts geared toward the creation of such an incorporated village which culminated in their filing of the Incorporation Petition with the Greenburgh Town Clerk on February 27, 2017. In substance, the Incorporation Petition alleged the following: (1) that it bore the signatures of 1,317 residents of the proposed Village of Edgemont who were qualified to vote for town officers in the Town of Greenburgh, which number constitutes more than 20% of the residents of the proposed Village of Edgemont, (2) that the name of the area proposed to be incorporated by the Incorporation Petition would be the Village of Edgemont, (3) that the area of the proposed Village of Edgemont contains a population of at least 500 regular inhabitants, (4) that the limits of the area of the proposed Village of Edgemont do not contain more than 5 square miles, (5) that the limits of the area of the proposed Village of Edgemont do not include a part of any city or village, (6) that it designates 3 persons, as listed by name and home address, upon whom papers required to be served in connection with the proceeding for incorporation shall be served, (7) that a majority of those 3 designated persons reside within the territory of the proposed Village of Edgemont, (8) that, before the signature pages which followed, there is a description of the area of the proposed Village of Edgemont that is sufficient to identify the location and extent of that territory with common certainty through a map annexed thereto which depicted and established the bounds of a fire district established by a resolution of the Board of Supervisors of Westchester County on July 2, 1923 and was co-extensive with School District No. 6 of the Town of Greenburgh, thereby particularly describing the boundaries of the proposed Village of Edgemont as being reflected in that annexed map of the established fire district, and (9) that, before the signature pages which followed, there is a list of the names and addresses of the regular inhabitants of the territory of the proposed Village of Edgemont. Furthermore, each of the signature pages annexed to the Incorporation Petition are subscribed on separate sheets of paper following the annexed exhibits, contain a prefatory statement which identifies same as a petition for incorporation, and makes known that each of the signatories were familiar with the contents and purpose of the petition for incorporation, as well as the boundaries of the proposed Village of Edgemont. In addition, following each signature there is a handwritten address and printed name of each signatory, as well as an authenticating affidavit of a witness to each signature and his or her address, located at the bottom of each page.
With specific regard to those allegations raised within the Incorporation Petition in support of the statutory requirement of Village Law § 2-202(1)(a)(1) that a petition for incorporation be brought on behalf of at least 20% of the residents of the proposed Village of Edgemont who are qualified to vote for elected officials of the Town of Greenburgh, as well as the requirements of Village Law § 2-202(b)(3) that the territory of the proposed Village of Edgemont contains a population of at least 500 regular inhabitants, the petitioners proffer the affidavit of Sharyn E. Lewis as Exhibit B to the Incorporation Petition to reflect the manner by which it is alleged therein that these specific statutory criteria are satisfied. In support of her allegation that the Incorporation Petition was being brought on behalf of at least 20% of the residents of the proposed Village of Edgemont who are qualified to vote for elected officials of [*2]the Town of Greenburgh, Ms. Lewis submits under oath that on or about and between September of 2016 and February of 2017 she obtained the most recent voter registration rolls for each election district (ED) that contains voters residing within the area of the proposed Village of Edgemont - as defined by the Greenville Fire District boundaries - from the Westchester County Board of Elections, including ED 33, ED 34, ED 35, ED 36, ED 49, ED 69, ED 70 and ED 75. Ms. Lewis further explains that after adding all newly enrolled voters in these ED's for the time period between September of 2016 and February of 2017, and after deducting all of those voters who were no longer on the voter registration rolls for these ED's over the same time, a total of 6,668 voters was calculated as of the last voter registration rolls provided to her by the Board of Elections in response to her written request for same on February 3, 2017.
Within Exhibit B to the Incorporation Petition, Ms. Lewis then relates that the preliminary total of 6,668 voters drawn from within the examined ED's was further diminished by 1,231 to reflect those registered voters whose street addresses lay outside of the boundaries of the proposed Village of Edgemont as defined by the Greenville Fire District boundaries through the utilization of a Board of Elections map entitled Greenburgh NY - Political Subdivisions 2012, the Westchester County Geographic Information Systems Interactive Mapping Applications (GIS) online tool, as well as the Greenburgh GIS and Tax Information online tool. In addition, Ms. Lewis further explains within Exhibit B to the Incorporation Petition that she further diminished the preliminary total of 6,668 voters by 61 to account for those registered voters on that list who she had determined to be deceased through her utilization of the Social Security Death Index (SSDI) and online obituaries, as well as the further diminution by 25 to account for those individuals who had filed duplicate voter registration forms with the Board of Elections. Through Exhibit B to the Incorporation Petition, Ms. Lewis explains the additional reduction of the preliminary total of 6,668 voters by another 170, then by 132, and then by 59, to reflect those registered voters appearing on the Board of Elections lists who were no longer residing within the boundaries of the proposed Village of Edgemont upon their relocation to residences outside of those boundaries, and the further reduction of the preliminary total by 58, and then by 5, to account for those non-resident adult children of current or former homeowners from within those boundaries. Finally, Ms. Lewis explains within Exhibit B to the Incorporation Petition that she further diminished the preliminary total of 6,668 voters by 4 to reflect those registered voters appearing on the Board of Elections lists whose addresses were not listed anywhere within the Town of Greenburgh, and that she added 34 to the preliminary total to reflect those signatories of the Incorporation Petition who are residents of homes located within the proposed Village of Edgemont, but are not yet registered to vote despite their eligibility to do so. Upon these bases, as detailed and supported by the sworn affidavit of Sharyn E. Lewis, the Incorporation Petition represents that there were 4,827 residents of homes located within the boundaries of the proposed Village of Edgemont, whom she also characterized as regular inhabitants thereof, who were registered to vote for officers of the Town of Greenburgh as of February 3, 2017. In this regard, the Incorporation Petition bears and is supported by a list of the names and addresses of these 4,827 residents, further characterized therein as regular inhabitants, of the proposed Village of Edgemont. In connection therewith, the Incorporation Petition bears and is further supported by the names, signatures and addresses of 1,317 of the 4,827 residents of the proposed Village of Edgemont who were qualified to vote for town officers in the Town of Greenburgh as of [*3]February 3, 2017, which the Incorporation Petition represents as constituting more than 20% of the 4,827 residents of the proposed Village of Edgemont.
With specific regard to those allegations raised within the Incorporation Petition in support of the statutory requirement of Village Law § 2-202(1)(c)(1) that a petition for incorporation provide a description of the location and extent of the territory of the proposed area of incorporation with common certainty, there is a description provided therein of the boundaries of the proposed Village of Edgemont in the form of both the metes-and-bounds description of the boundaries of the Greenville Fire District which was adopted by resolution of the Board of Supervisors of Westchester County on July 2, 1923, as well as through an annexed map depicting the boundaries of the Greenville Fire District which was drawn in 1934 from the metes-and-bounds description that established the Board of Supervisors of Westchester County's previously approved boundaries of the Greenville Fire District in 1923, and even further referencing same as being co-extensive with School District No. 6 of the Town of Greenburgh, commonly referred to as the Edgemont School District.
Thereupon, acting pursuant to the authority derived from Village Law §§ 2-202 and 2-204, respondent Feiner scheduled a public hearing for April 5, 2017 to take testimony as to objections regarding the legal sufficiency of the Incorporation Petition, and posted public notices designed to advise residents the Town of Greenburgh of their respective right to appear and participate in this upcoming public hearing. As scheduled, a public hearing upon the legal sufficiency of the Incorporation Petition was conducted and presided over by respondent Feiner on April 5, 2017, who made a statement at the outset regarding the procedure he would be utilizing for the taking of objections, and advised the attendees that he had retained an attorney, Robert Spolzino, Esq., who was present to assist him with the hearing proceedings. Thereafter, the hearing commenced with the taking of objections from attendees, the first of which was respondent Janet Linn who summarized her previously submitted written affidavit by offering her suspicion that "there might have been" an earlier version of the Incorporation Petition shown to some of its signatories, that the list of Regular Inhabitants is inaccurate to the extent that it fails to list three specific persons who are regular inhabitants of the Town of Greenburgh, and does list two specific persons, one of whom is Daniel Bernstein, who reside outside of the Town of Greenburgh, and that the list of Regular Inhabitants is undated and lacks an attributed source.
The second objector, respondent Martin Payson, summarized his previously submitted written affidavit by claiming that "there is no common certainty as was stated in the petition," and that the boundaries of the Greenville Fire District and School District No. 6 are not "coterminous." In addition, respondent Payson then read aloud a statement he attributed to respondent Thomas Blank, a third objector, relating that he was not shown a map or other description of the boundaries of the proposed Village of Edgemont, nor a list of Regular Inhabitants when he signed the Incorporation Petition.
The fourth person who was permitted to speak, William Stanton of Stanton. P.I., Inc., acknowledged that he was not an objector, but rather had been hired by respondent Feiner, and offered his belief, in terms of "it seems apparent that," there are varying accounts from some unspecified number of "residents" regarding what they had been told at "incorporation meetings" concerning the boundaries of the proposed Village of Edgemont, and what documents they may or may not have been shown, concluding with a solicitation to the attendees to contact his office [*4]at a toll-free telephone number.
The fourth objector, respondent Tracy Mairs, claimed that she had reviewed the Incorporation Petition and that she believed that it contained duplicate signatures from 29 of its signatories. The next person who was permitted to speak was the Town Clerk of the Town of Greenburgh, Judith M. Beville, who then read aloud a statement she attributed to respondent Edward Massena, a fifth objector, relating that the boundary of the proposed Village of Edgemont "is not coterminous with the entire boundaries of a school, fire, fire protection, fire alarm town special, or town improvement district and the limits of such territory are not coterminous with parts of the boundaries of more than one school, fire, fire protection, fire alarm, town special, or town improvement district, of which all are wholly contained within such limits and within one town as required by Section 2-200 of the New York State Village Law."
The sixth objector, respondent Lloyd Cort, stated that pages 117 and 120 of the Incorporation Petition did not contain a prefatory statement as required by New York State Village Law 2-200(1)(E). The seventh objector, respondent Glen Gordon, stated that he believed that the proposed Village of Edgemont includes a portion of the City of Yonkers. The eight objector, respondent Sylvia Simon, stated that because the Incorporation Petition did not provide the source which was utilized to create its list of 4,826 residents who are qualified to vote upon the incorporation of the proposed Village of Edgemont, the Town Supervisor could not determine whether the Incorporation Petition bears the signature of at least 20% of such qualified voters as required by Section 2-200 of the New York State Village Law.
The ninth objector, respondent Mona Fraitag, claimed that she believed that the same individual named Carl Bernstein had signed the Incorporation Petition on both June 14th and July 11th with what she believed to be different signatures based upon her personal review of the signature of an individual named Carl Bernstein on file with the Westchester County Board of Elections, which lead her to argue that all of the total of 233 signatures which were witnessed by Graf Daniels and Alix M. Brown, the two people whose notarized signatures appeared at the bottom of pages 169 and 187 of the Incorporation Petition beneath both of the referenced Carl Bernstein signatures, "should be deemed invalid."
The tenth objector, respondent Joan Gardner, stated that because the Incorporation Petition did not provide the source which was utilized to create its list of 4,826 residents who are qualified to vote upon the incorporation of the proposed Village of Edgemont, the Town Supervisor could not determine whether the Incorporation Petition bears the signature of at least 20% of such qualified voters as required by Section 2-200 of the New York State Village Law.
Thereafter, an individual named Mark Rosenblatt attempted to speak about what he described as the inaccuracies in the objections raised by one or more of the objectors, but respondent Paul Feiner's attorney, Robert Spolzino, Esq., interjected and declined to permit Mr. Rosenblatt to speak on such matters due to his belief that the Village Law did not allow for such testimony. Petitioner Robert Bernstein, who was in attendance, reacted to the exchange between Mr. Rosenblatt and Mr. Spolzino by interjecting that he believed that the Village Law did permit Mr. Rosenblatt to speak during the hearing about the objections previously raised. In apparent response to the exchange between Mr. Spolzino and petitioner Bernstein, respondent Feiner terminated the continuation of the hearing and adjourned same until April 25, 2017. Subsequently, respondent Feiner advanced the next hearing date from April 25, 2017 to April 24, [*5]2017.
As scheduled, the continued public hearing upon the legal sufficiency of the Incorporation Petition was conducted and presided over by respondent Feiner on April 24, 2017, who was assisted by his attorney, Robert Spolzino, Esq., and the Town Attorney for the Town of Greenburgh, Timothy Lewis, Esq., who made a statement at the outset admitting a multitude of documents into the record, starting with the Incorporation Petition which was contained within Exhibits No.1 and #2, and continuing with the affidavit of respondent Janet Linn which reflected her testimony given as an objector on April 5, 2017 and was admitted into evidence as Exhibit #3, the affidavit of respondent Thomas Blank which reflected his testimony given as an objector on April 5, 2017 and was admitted as Exhibit #4, the affidavit of respondent Tracy Mairs which reflected her testimony given as an objector on April 5, 2017 and was admitted as Exhibit #5, the affidavit of respondent Edward Massena which reflected his testimony given as an objector on April 5, 2017 and was admitted as Exhibit #6, the affidavit of respondent Lloyd Cort which reflected his testimony given as an objector on April 5, 2017 and was admitted as Exhibit #7, the affidavit of respondent Glenroy Gordon which reflected his testimony given as an objector on April 5, 2017 and was admitted as Exhibit #8, and the affidavit of respondent Sylvia Simon which reflected her testimony given as an objector on April 5, 2017 and was admitted as Exhibit #9, and the affidavit of respondent Joan Gardner which reflected her testimony given as an objector on April 5, 2017 and was admitted as Exhibit #10.
Thereafter, in his capacity as the Town Attorney for the Town of Greenburgh, Mr. Lewis published the affidavit of respondent Steve J. Willard, a professional land surveyor who had been hired by the Town of Greenburgh to submit his affidavit, which was admitted as Exhibit #11, relating that the 1934 Greenville Fire District map, annexed to the Incorporation Petition to define the boundaries of the proposed Village of Edgemont, contained a small area which is also within the Hartsdale Fire District, leading to his conclusion that since the Greenville Fire District map is not coterminous with the boundaries of the entire Greenville Fire District, there is no common certainty in the description of the area of the proposed Village of Edgemont due to the overlap of properties in both of these fire districts. Mr. Lewis next published the affidavit of respondent John H. Martin, Esq., an attorney who was hired by respondent Feiner to submit his affidavit, which was admitted as Exhibit #19, relating that there exists an overlap between the northerly boundary of the Greenville Fire District and the southerly boundary of the Hartsdale Fire District, leading him to conclude that there is no common certainty regarding the boundaries of the Greenville Fire District, nor the area of the proposed Village of Edgemont.
Thereafter, Mr. Lewis, in his capacity as the Town Attorney for the Town of Greenburgh, returned to the affidavits of objectors and published the affidavit of respondent Alice Strauss as the eleventh objector which reflected her written objection to the proposed incorporation of the Village of Edgemont without further comment, admitting same into evidence as Exhibit #16. Mr. Lewis then published the affidavit of respondent Robert Cerrato as the twelfth objector which reflected his belief that the Incorporation Petition includes the signatures of 145 people who were not listed with Exhibit B annexed thereto as regular inhabitants of the proposed Village of Edgemont who are qualified to vote for officers therein, admitting same into evidence as Exhibit #18. Mr. Lewis then published the affidavit of respondent Helen Orce as the thirteenth objector, which reflected her status as a current member of the Board of [*6]Commissioners of the Greenville Fire District and related her belief that there are areas within the Greenville Fire District which are not located within the boundaries of the Edgemont School District, admitting same into evidence as Exhibit #17.
Respondent Feiner then directed Mr. Lewis to commence the taking of testimony from attendees as to objections, leading first to the testimony of respondent Donald Siegel as the fourteenth objector, who claimed that the Greenville Fire District map annexed to the Incorporation Petition is not coterminous with the boundaries of the entire Greenville Fire District and consequently, there is no common certainty in the description of the area of the proposed Village of Edgemont due to the overlap of properties in both the Hartsdale Fire District and the Greenville Fire District, and same was admitted into evidence as Exhibit #24. Thereafter, respondent Joanne Siegel spoke as the fifteenth objector, stating that she believed that the records of the Board of Elections reflected 7,319 persons were qualified to vote for officers of the Town of Greenburgh from within the proposed area of the Village of Edgemont, and further believed that the Incorporation Petition contained only 142 such signatures, which lead her to conclude that the Incorporation Petition did not contain the signatures of 20% of the residents who were qualified to vote in the proposed Village of Edgemont.
Following the testimony of respondent Siegel, respondent Feiner verbally indicated that he was going to permit respondent Freitag to testify again, despite the objection raised to such action by petitioner Bernstein based upon her previous testimony given during the hearing session conducted on April 5, 2017, citing to respondent Feiner's admonition at the commencement of that hearing session to the effect that each speaker would be afforded no more than one opportunity to address the hearing assembly for a maximum of 3 minutes. In apparent response to this objection, respondent Feiner then directed respondent Freitag to submit her additional affidavit without submitting any testimony, although it does not appear from the record of this proceeding that this undated affidavit, as notarized on April 23, 2017, was admitted into evidence.
The hearing session continued with the testimony of Paul Sherwin, who raised argument in opposition to the objection submitted previously by respondent Blank during the preceding hearing session on April 5, 2017, stating that he was present with respondent Blank when he signed the Incorporation Petition and recalled that, contrary to respondent Blank's earlier claims submitted on April 5, 2017, he had been provided with the Greenville Fire District map and a metes and bounds description of the boundaries of the proposed Village of Edgemont before signing the Incorporation Petition. Thereafter, Diane Gipstein testified and raised argument in opposition to the objection submitted previously by respondent Cerrato during the preceding hearing session on April 5, 2017, stating that at least 49 of the 145 names claimed by respondent Cerrato to have been absent from the list or regular inhabitants of the proposed Village of Edgemont were actually listed therein. Ms. Gipstein further challenged respondent Cort's objection given during the April 5, 2017 hearing session, asserting that only 2 of the 335 signature pages contained within the Incorporation Petition failed to have the required prefatory statement, bearing a total of merely 3 signatures, which left a sufficient number of signatures upon the remaining 333 signature pages to satisfy and exceed the requisite 20% figure of the regular inhabitants of the proposed Village of Edgemont as required by the Village Law. Lastly, Ms. Gipstein challenged respondent Mairs' objection given during the April 5, 2017 hearing [*7]session, asserting that she had determined that only 27 of the 29 signatures alleged by respondent Mairs to appear twice on the signature pages annexed to the Incorporation Petition were actual duplicate signatures.
Thereafter, Tarang Gupta testified and raised argument in opposition to the objection submitted previously by respondent Gordon during the preceding hearing session on April 5, 2017, stating that despite respondent Gordon's claim that a portion of the proposed Village of Edgemont was located within the City of Yonkers, the Incorporation Petition repeatedly indicates that the metes and bounds description of the southerly boundary of the proposed Village of Edgemont is the northerly boundary line of the City of Yonkers which precludes one municipality from overlapping the other.
In further opposition to the objection submitted previously by respondent Blank during the preceding hearing session on April 5, 2017, Michael Weksler stated that he was present when respondent Blank signed the Incorporation Petition and heard petitioner Bernstein define the area of the proposed Village of Edgemont as being entirely consistent with the boundaries of the Greenville Fire District as set forth on the Greenville Fire District map, rather than utilizing the slightly distinct boundaries of the Edgemont School District, due to long-standing uncertainty regarding the legal description of its boundaries.
Thereafter, Daniel Bernstein testified and challenged the reliability and accuracy of the claims raised in the objection submitted previously by respondent Linn during the preceding hearing session on April 5, 2017, stating that despite respondent Linn's claim that his inclusion upon the list of Regular Inhabitants within the Incorporation Petition should be stricken due to her belief that he resided in the State of California, he has never resided within the State of California and continues to maintain his permanent residence within the area of the proposed Village of Edgemont - unlike his brother who presently attends college within the State of California.
The next testimonial was submitted by Mark Lukasiewicz, who challenged the admission and consideration by respondent Feiner of the testimony of William Stanton of Stanton, P.I., Inc., which was submitted during the hearing session on April 5, 2017, as Mr. Stanton was admittedly not an objector and not a resident qualified to vote for town officers in the Town of Greenburgh, but rather had been hired by respondent Feiner at the expense of the Town of Greenburgh and had employed deceitful practices in an attempt to trick signatories of the Incorporation Petition to sign affidavits invalidating their previously proffered signatures.
Thereafter, Marc Ackerman testified and raised argument in opposition to the objection submitted previously by respondent Payson during the preceding hearing session on April 5, 2017, stating that despite respondent Payson's suggestion that the Incorporation Petition failed to provide common certainty of the boundaries of the proposed Village of Edgemont due to the fact that the boundaries of the Greenville Fire District are not presently coterminous with the boundaries of the Greenville School District, the boundaries of the Greenville Fire District, which were legislatively created by a resolution of the Board of Supervisors of Westchester County in 1923 to mirror and be coextensive with the boundaries of the then-existing Edgemont School District, which had been defined and laid out upon a map that was filed with the Town of Greenburgh in 1899. Mr. Ackerman continued with argument that despite the subsequent legislative change of the boundaries of the Edgemont School District to make the boundaries [*8]between it and the Greenville Fire District distinct today, the map of the Greenville Fire District which was filed within the Incorporation Petition [FN1] was based upon the original metes and bounds description approved by the Board of Supervisors of Westchester County in 1923 does provide the requisite common certainty of the boundaries of the proposed Village of Edgemont.
The hearing session continued with the testimony of Jason Feldman, who raised argument in opposition to the objection submitted previously by respondents Gardner, Simon and Massena during the preceding hearing session on April 5, 2017, stating that when he and other volunteers compiled the list of Regular Inhabitants submitted within the Incorporation Petition, they utilized multiple sources of information including voter registration rolls, obituaries and the Social Security Death Index, and submitted that the list of Regular Inhabitants submitted within the Incorporation Petition was accurate as of February 3, 2017.
The next testimonial was submitted by Michelle McNally who testified and raised argument in opposition to the objections submitted previously by respondents Payson and Orce during the preceding hearing session on April 5, 2017, stating that the Incorporation Petition's reliance upon the Greenville Fire District map for a description of the area of the proposed Village of Edgemont, being consistent with the metes and bounds description of the Greenville Fire District approved by resolution of the Board of Supervisors of Westchester County in 1923, is sufficient to identify the location and extent of the area of the proposed Village of Edgemont with common certainty irrespective of the "besides the point" argument raised by these two respondents to the effect that the Greenville Fire District and the Edgemont School District are not coterminous.
The next testimonial was submitted by Michael Mellis who testified and raised argument in opposition to the objection submitted previously by respondent Janet Linn during the preceding hearing session on April 5, 2017, stating that her claim that the Incorporation Petition failed to contain the signatures of 20% of voters residing within the area of the proposed Village of Edgemont was based upon mere speculation and was unsupported by evidence, and was further undermined by the hearing testimony of Daniel Bernstein discrediting her claim that he resided in the State of California.
The hearing session continued with the testimony of Clint Eller, who raised argument in opposition to the intentionally "misleading" practices employed by Amy Ferraro, as an employee of the private investigation agency which had been hired by the Town of Greenburgh to solicit signatures, in an effort to "dupe" him and his wife into signing an affidavit under false pretenses regarding fabricated defects in the process through which they had previously given their signatures in support of the Incorporation Petition, which would have lead them to falsely disavow the legitimacy of their signatures thereupon if they had not seen through the ruse being perpetrated by Ms. Ferraro and refused her exhortations to sign her proffered affidavit.
The next testimonial was submitted by Dominic Maister, who testified and raised argument in opposition to the objection submitted previously by respondent Linn during the preceding hearing session on April 5, 2017, stating that despite respondent Linn's claim that the list of Regular Inhabitants within the Incorporation Petition should be disregarded due, in part, to [*9]the mistaken exclusion of him from same, he related that he had been properly excluded therefrom due to his lack of United States citizenship and consequent ineligibility to vote for officials of the Town of Greenburgh.
The next testimonial was submitted by Jennifer DeMarrais, who testified and raised argument in opposition to the objection submitted previously on behalf of respondent Massena during the preceding hearing session on April 5, 2017, arguing that his objection to the effect that the boundaries of the proposed Village of Edgemont are not coterminous with the entire boundaries of a school, fire, fire protection, fire alarm town special, or town improvement district and the limits of the territory are not coterminous with parts of the boundaries of more than one school, fire, fire protection, fire alarm, town special, or town improvement district, of which all are wholly contained within such limits and within one town as required by Section 2-200 of the New York State Village Law, reflects a misapprehension of the applicable law. Specifically, Ms. DeMarrais argues that by Section 2-200 of the New York State Village Law requires only that the limits of the territory of a proposed village not contain more than five square miles pursuant to Section 2-200(1)(a) of the statute, or that it be either coterminous with the entire boundaries of a school, fire, fire protection, fire alarm, town special or town improvement district pursuant to Section 2-200(1)(b) of the statute, or that it be coterminous with parts of the boundaries of more than one school, fire, fire protection, fire alarm, town special or town improvement district, all of which are wholly contained within such limits and within one town pursuant to Section 2-200(1)(c) of the statute; rather than, as incorrectly argued by respondent Massena, requiring that all three of these elements be satisfied. Ms. DeMarrais continued by concluding that since the Incorporation Petition satisfies the requirement that the limits of the territory of the proposed Village of Edgemont not contain more than five square miles pursuant to Section 2-200(1)(a) of the New York State Village Law, it is unnecessary that the Incorporation Petition also satisfy the above-referenced requirements of Sections 2-200(1)(b) and (1)(c) of the New York State Village Law, despite respondent Massena's argument to the contrary.
The next testimonial was submitted by Blair Connelly, who testified and raised argument in opposition to respondent Feiner's consideration of the testimony and documents submitted previously during the preceding hearing session on April 5, 2017 by two non-objectors, one of which was from an attorney hired by respondent Feiner, the other being a land surveyor hired by respondent Feiner, as both of these individuals resided outside of the Town of Greenburgh and were not qualified as objectors to the Incorporation Petition under the law. Mr. Connelly continued, arguing that he believed that respondent Feiner had acted outside of the parameters of his limited authority under Section 2-200 of the New York State Village Law when he (1) used public funds to hire private investigators to affirmatively and directly attempt to influence the process, (2) improperly solicited objections, (3) admitted into evidence the testimonial and documentary submissions of individuals whom he knew to be unqualified objectors since he had hired them to make their submissions during the hearing proceeding on April 5, 2017 without regard to their residency with the Town of Greenburgh, and (4) announced that he would permit additional objections to be submitted subsequent to the final session of hearing proceedings, thereby preventing meaningful response to same.
The hearing session continued with the testimony of Lisa Decker, who published the affidavit of Paulette Siegel, who raised argument in opposition to the circumstances arising on [*10]March 1, 2017 under which she was "tricked" by a woman employed by the Town of Greenburgh into signing an affidavit under false pretenses regarding fabricated defects in the process through which she had previously given her signatures in support of the Incorporation Petition, which lead her to falsely disavow the legitimacy of her signature thereupon. Mr. Lewis precluded Ms. Decker from completing her publication of Paulette Siegel's affidavit due to her inability to assure him that she could finish with one more sentence, although he indicated that she might be able to speak a second time after waiting awhile.
The next testimonial was submitted by Michael Gaviser, who elected to utilize his opportunity to testify by completing the publication of Paulette Siegel's affidavit, which continued by expressing her significant displeasure with the respondent Feiner's utilization of "dirty underhanded tactics" to undermine and thwart the process by "tricking" residents into signing "phony objections," further submitting that doing so was morally and ethically wrong. Mr. Gaviser continued by testifying on his own behalf, stating that he simply wanted to have the opportunity for himself and all residents of the proposed Village of Edgemont to participate in a vote regarding incorporation.
The next testimonial was submitted by Charles Luband, who testified that he believed that the more than 1,400 petition signatures submitted with the Incorporation Petition were sufficient to satisfy the requirement that same be supported by the petition signatures of at least 20% of the residents of the proposed Village of Edgemont, even if respondent Feiner were to find it proper to exclude those signatures which were the subject of legitimate objections. Mr. Luband continued by further asserting that since the area proposed to constitute the Village of Edgemont was being based upon the boundaries of the Greenville Fire District which had been defined in the Greenville Fire District map submitted with the Incorporation Petition, he believed that the requisite common certainty had been established.
The hearing session continued with the testimony of Lawrence Cinamon, who published the affidavit of Craig Bernstein, relating that he disavowed the suggestion previously raised by someone residing outside of the area of the proposed Village of Edgemont to the effect that he did not support the right of Edgemont residents to have the opportunity to vote regarding incorporation.
The next testimonial was submitted by petitioner Bernstein, who testified and raised argument in opposition to the objections submitted previously by Steven Willard and John Martin during the preceding hearing session on April 5, 2017, arguing that their respective claims that the Edgemont School District and the Greenville Fire District are not coterminous is irrelevant to the sufficiency of the Incorporation Petition, as same is supported by the Greenville Fire District map which reflects the metes and bounds description approved by the Board of Supervisors of Westchester County on July 2, 1923, which provides the requisite common certainty required by the law.
Thereafter, Mr. Lewis published a part of the affidavit of Calvin Chin, which related argument in opposition to the circumstances arising on March 31, 2017 under which he was visited at his home by a woman named Amy who was carrying of copy of his signature page from the Incorporation Petition and claimed that she represented the Town of Greenburgh. Mr. Lewis then indicated that he was not going to read Mr. Chin's entire statement, and proceeded to read only the concluding sentence of his affidavit, wherein he stated that he wanted his signature [*11]upon the Incorporation Petition to be counted, despite the Town's efforts to thwart the process by "tricking" residents like him into signing "phony objections" which was morally and ethically wrong.
Respondent Feiner then directed that respondent Freitag be given another opportunity to testify, in addition to the opportunity she availed herself of as the ninth objector during the first hearing proceeding conducted on April 5, 2017, and she claimed that 1 signature upon the Incorporation Petition should be excluded due to that signatory's use of an initial for the first name without identifying which of the two residents of that household who bore the same first name it was attributable to, and she continued by claiming that another 1 signature upon the Incorporation Petition should be excluded because that resident lived at an address other than that set forth upon the list of Regular Inhabitants annexed as Exhibit B to the Incorporation Petition, that 5 unspecified signatures should be excluded as those signatories had asked that they be removed from the Incorporation Petition, that 27 other signatures should be excluded because they appeared twice on the Incorporation Petition, that 145 signatures should be excluded because their names do not appear on the list of Regular Inhabitants annexed as Exhibit B to the Incorporation Petition, that the 5 signatures appearing on two distinct pages of the Incorporation Petition should be excluded because there is no header on those two signature pages, that some additional signatures should be excluded because those people printed their names or used their initials to sign the Incorporation Petition rather than using a cursive signature, and she concluded by stating that there are 6 additional signatures which should be excluded because she believed they were suspicious and inconsistent with the signatures on file with the Westchester County Board of Elections. In conclusion, Ms. Freitag argued that a total of 862 signatures appearing on the Incorporation Petition should be excluded, which would include the above-referenced signatures and all of the signatures of those people whose signatures were witnessed by the two individuals whom she believed had falsely attested to the signatures of those she believed to be suspicious.
Respondent Feiner then directed that respondent Linn be given a second opportunity to testify, in addition to the opportunity she availed herself of as the first objector during the first hearing proceeding conducted on April 5, 2017, and she summarized her second affidavit by stating that the Incorporation Petition should be deemed invalid because the list of Regular Inhabitants submitted with the Incorporation Petition, containing the names of 4,825 people, failed to comply with the requirements of Section 2-200 of the New York State Village Law in that she believed this list had been compiled to reflect inhabitants who are qualified to vote rather than merely regular inhabitants.
Thereafter, a brief question was asked by respondent Payson, who sought to confirm that the Greenburgh Town Attorney had received his affidavit and supporting information, which Mr. Lewis confirmed. Following respondent Payson, Mr. Lewis published the affidavit of respondent Nancy Blank as the sixteenth objector, relating that she attended a meeting hosted by the Edgemont Incorporation Committee (EIC) on October 6, 2016, when she was told by either an unidentified person, or unidentified people, that the territory of the proposed Village of Edgemont would be defined by the boundaries of the Greenville Fire District, but that it was her understanding that the EIC had stated at a previous meeting that such territory would be defined by the boundaries of the Edgemont School District. Subsequently, Michele McNally complained [*12]that she had not received a copy of respondent Payson's affidavit despite having requested it that afternoon, and indicated that she would be seeking to obtain copies of all submitted affidavits and documents including those submitted by the licensed surveyor and attorney who offered testimony during the first hearing session conducted on April 5, 2017, submitting that she believed that neither of them were residents of the Town of Greenburgh. In response, Mr. Lewis confirmed and acknowledged that neither of those two individuals were residents of the Town of Greenburgh. Thereafter, Jeff Sherwin asked Mr. Lewis when he had received the affidavits submitted by respondent Nancy Blank and Ward Carpenter, as well as the affidavits he published at the beginning of the meeting, which prompted Mr. Lewis to indicate that he had received respondent Payson's documents at 9:00 AM that morning, and that he had received the title documents between 2:00 PM and 4:00 PM that afternoon, but had not been able to bring them to the Clerk's Office by 4:00 that afternoon for distribution to interested parties who had been requesting them. When Mr. Sherwin complained about Mr. Lewis' failure to do so, Mr. Lewis responded by claiming that neither he, nor respondent Feiner believed that Mr. Sherwin had any legal right to see them anyway.
The next speaker, Howard Hirsch, stated that he was confused as to the explanation provided for Mr. Lewis' failure to publish respondent Payson's affidavit at the beginning of the hearing that evening. Following Mr. Hirsch, Don Cannon spoke and complained that he had been bullied and assaulted by Mr. Hirsch, and suggested that others had been bullied as well.
Additional testimony was then submitted by petitioner Bernstein, who criticized respondent Feiner's decision to permit objectors to offer new testimony and evidence during that evening's hearing proceeding, in addition to the opportunities which they had availed themselves of as objectors during the first hearing proceeding conducted on April 5, 2017, due to the resulting inability of responses to be made thereto due to the closing of evidence the following day. In addition, petitioner Bernstein criticized respondent Feiner's expenditure of Greenburgh Town funds to hire several individuals, including respondents Steven Willard and William Stanton, to present evidence during the hearing proceedings despite knowing that they were neither residents, nor qualified objectors.
Lastly, the hearing session concluded with the testimony of John McCarthy, who related that, contrary to any allegation otherwise, he experienced no intimidation or oppression during any of the EIC meetings conducted previously, and that he believed that any suggestion otherwise was reprehensible.
It appears from the record presented, that additional affidavits and documentary materials were submitted to respondent Feiner throughout the day on April 25, 2017 until approximately 4:45 PM, although no record of the identity of those materials nor the time of their submission is related by respondent Feiner. Respondent Feiner subsequently issued a written decision dated May 5, 2017, as filed with the Greenburgh Town Clerk on May 9, 2017, which he indicated therein was based upon hearing testimony taken on April 5, 2017 and April 24, 2017, as well as 55 exhibits which he had received in evidence, specifically excluding the April 5, 2017 hearing session testimony and documentary material submitted by William Stanton of Stanton, P.I., which served to formally reject the Incorporation Petition upon citation to three distinct enumerated grounds (hereinafter, the challenged decision). Specifically, respondent Feiner's challenged decision reflected his determinations that the Incorporation Petition failed to describe [*13]the territory of the proposed Village of Edgemont with the requisite "common certainty" within the meaning of Village Law § 2-202(c)(1), that the Incorporation Petition failed to reflect the signatures of 20 percent of the residents of the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1), and lastly that the Incorporation Petition failed to include an adequate list of the regular inhabitants of the proposed Village of Edgemont as required by Village Law § 2-202(c)(2).
In support of his determination within the challenged decision that the Incorporation Petition failed to describe the territory of the proposed Village of Edgemont with the requisite "common certainty" within the meaning of Village Law § 2-202(c)(1), respondent Feiner cites to his determination that the legal description of the boundaries of the area of the proposed Village of Edgemont set forth in the Incorporation Petition is inconsistent because he could not determine from that description whether between 9 and 11 parcels of real property were within or without the boundaries of the proposed Village of Edgemont. Respondent Feiner relates that he reached this conclusion in reliance upon the testimony and evidence proffered by John M. Martin, Esq.,[FN2] which is then referenced by respondent Payson in his own affidavit and testimony which were admitted into evidence, where he submits that there is a discrepancy between the Incorporation Petition's annexed map of the Greenville Fire District and that of the School District Number 6 which pertains to between 9 and 11 tax parcels on Vandelay Court and Hearthstone Circle. Although respondent Paul Feiner acknowledges within the challenged decision that he understands that the proponents of the Incorporation Petition intended to describe the boundaries of the area of the proposed Village of Edgemont as being defined by the boundaries of the Greenville Fire District through reference to the map of same annexed to the Incorporation Petition, respondent Feiner nonetheless stated that he found the description of the proposed Village of Edgemont to be inconsistent, and upon that basis found that the Incorporation Petition failed to describe that area with "common certainty" as required by Article 2 of the Village Law.
In support of his determination within the challenged decision that the Incorporation Petition failed to reflect the signatures of 20 percent of the residents who are qualified to vote in the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1), respondent Feiner therein cites first to his determination that there are 5,993 qualified voters residing in the area of the proposed Village of Edgemont, and next cites to his determination that the Incorporation Petition is supported by only 1,021 valid signatures, thereupon relating his conclusion that the Incorporation Petition is 177 signatures short of the required 20 percent total of 1,198 signatures needed. In support of his determination that the Incorporation Petition is supported by only 1,021 valid signatures, respondent Feiner indicates that he invalidated a total of 296 signatures by first invalidating 3 total signatures from the Incorporation Petition based upon respondent Cort's objection to the omission of a prefatory statement on pages 117 and 120 thereof. In further support of his determination that the Incorporation Petition is supported by [*14]only 1,021 valid signatures, respondent Feiner indicates that he invalidated a total of 290 signatures from the Incorporation Petition based upon respondent Freitag's objections, including those she raised against the legitimacy of Craig Bernstein's signatures appearing on pages 169 and 182 of the Incorporation Petition because respondent Feiner found that Mr. Bernstein failed to dispute respondent Freitag's claim that both of his signatures were fraudulent. In this regard, respondent Feiner further indicates within his challenged decision that he invalidated all of the 271 signatures from the Incorporation Petition which were witnessed by petitioner Aubrey Graf Daniels and Alix M. Brown upon his adoption of respondent Freitag's argument that since she believed that petitioner Daniels and Ms. Brown had falsely sworn that each of them had witnessed Craig Bernstein's signatures upon pages 169 and 182 of the Incorporation Petition, respectively, then it was proper to conclude on that basis that all of the signatures within the Incorporation Petition which were witnessed by either petitioner Daniels or Ms. Brown are illegitimate and must be excluded from the Incorporation Petition.
Respondent Feiner continues and indicates within his challenged decision that he also invalidated all of the signatures which were witnessed by David DiPietto from the Incorporation Petition, upon his adoption of respondent Freitag's argument that since she believed that the signatures of Michele Lazar and Abbe Lazar appearing on page 233 of the Incorporation Petition were fraudulent because she didn't think they matched the signatures of these two individuals on file with the Westchester County Board of Elections closely enough, then it was proper to conclude on that basis that all 17 of the signatures within the Incorporation Petition which were witnessed by Mr. DiPietto are illegitimate and must be excluded from the Incorporation Petition.
Finally, respondent Feiner indicates within his challenged decision that he invalidated all of the signatures which were witnessed by Alisa Strauss from the Incorporation Petition, upon his adoption of respondent Freitag's argument that since she believed that the signature of Sophie Strauss appearing on page 5 of the Incorporation Petition was fraudulent because she didn't think it matched the signature of this individual on file with the Westchester County Board of Elections closely enough, then it was proper to conclude on that basis that all 3 of the signatures within the Incorporation Petition which were witnessed by Ms. Strauss are illegitimate and must be excluded from the Incorporation Petition.
Upon making these findings within the challenged decision regarding the illegitimacy of the above-referenced signatures from the Incorporation Petition, respondent Feiner excluded a total of 296 of the grand total of 1,317 signatures proffered in support of the Incorporation Petition, which lead him to conclude that the Incorporation Petition contained 1,021 valid signatures, which was less than the 1,198 signatures needed to constitute 20 percent of the total number of 5,993 residents whom he believed are qualified to vote in the proposed Village of Edgemont. Thereupon, respondent Feiner reached the determination within the challenged decision that the Incorporation Petition failed to reflect the signatures of 20 percent of the residents who are qualified to vote in the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1).
In support of his determination within the challenged decision that the Incorporation Petition failed to include a reasonably accurate list of "regular inhabitants" of the proposed Village of Edgemont as required by Village Law § 2-202(1)(c)(2), respondent Feiner sets forth therein that he believes that there are "approximately 5,993 registered voters" residing within the [*15]area of the proposed Village of Edgemont, and then postulates that since the Incorporation Petition is supported by an affidavit which relates that there are "4,826 regular inhabitants" residing within the area of the proposed Village of Edgemont who are qualified to vote, the Incorporation Petition is impermissibly imprecise in that he believes "[t]here must, therefore, be significantly more 'regular inhabitants' of the territory proposed to be incorporated than there are registered voters" because at least some of these registered voters have children who are properly counted as "regular inhabitants" under the law. Specifically, respondent Feiner concludes upon this reasoning that the list of "4,826 regular inhabitants" alleged within the Incorporation Petition to reside within the area of the proposed Village of Edgemont "is clearly inaccurate," and upon that basis, determines that the list of "regular inhabitants" within the Incorporation Petition "cannot constitute the 'strict compliance' with the statutory requirement that is necessary."
Conclusions of Law
Pursuant to Article 2 of the Village Law, the Legislature established the procedures required for the incorporation of a territory as a village, requiring that an application for such relief be submitted by a petition which is supported by, inter alia, at least 20% of the residents of the territory of the proposed incorporated village who are qualified to vote for town officers of the town in which all or part of such territory is located (see Village Law § 2-202[1][a][1]), as evidenced by the signatures and corresponding addresses of those residents subscribed upon a separate page or pages, which must be authenticated by an affidavit of a witness to each such signature that is to be located at the bottom of each such page, and which is prefaced by a statement of the basis on which the petition is signed, and the signatories'/petitioners' familiarity with the contents and purpose thereof including the boundaries of the territory of the proposed village (see Village Law § 2-202[1][e][1]-[4]). Insofar as the contents of the petition itself are concerned, it must contain information relating an allegation of the basis on which the petition is signed, the name of the proposed village, an allegation that the territory of the proposed village contains a population of at least 500 regular inhabitants, the designation of between one and three persons who are identified by full names and addresses in order to facilitate the service of papers upon them, a majority of whom must be residents of the proposed village, and the manner in which the area requirements of Village Law § 2-200 are satisfied (see Village Law § 2-202[1][b][1]-[6]).
In this regard, such area requirements applicable to a proposed village include the showing that the territory of same contains a population of at least 500 regular inhabitants, that it does not include a part of a city or village, and that the limits of such territory does not contain more than 5 square miles, or that such limits are coterminous with the entire boundaries of a school, fire, fire protection, fire alarm, town special or town improvement district of a town, or that such limits are coterminous with parts of the boundaries of more than one school, fire, fire protection, fire alarm, town special or town improvement district of a town, all of which are wholly contained within such limits and within one town, or that such limits are coterminous with the entire boundaries of a town (see Village Law § 2-200[1][a]-[d]). Insofar as the term regular inhabitants is defined under Village Law § 2-200(1), it shall include all persons residing in the territory of the proposed village who are 18 years-of-age or older, and who maintain a residence therein which is used for voting purposes (see Village Law § 2-200[2]).
Furthermore, the requisite manner of preparation of an incorporation petition is governed by Village Law § 2-202, which requires that each copy of the petition must have annexed thereto, prior to the signature pages, a list of the names and corresponding addresses of the regular inhabitants of the territory of the proposed village, and a description of same which is sufficient to identify the location and extent of such territory with common certainty, which shall be related through either of the following, or a combination of same: (1) a metes and bounds description, and/or (2) a description made with reference to existing streets and navigable waters or a combination of same, and/or (3) a map showing existing streets and navigable waters or a combination of same forming boundaries or metes and bounds or the entire boundaries of one or more districts of an entire town (see Village Law § 2-200[1][c][1] and [2]). Finally, Village Law § 2-202 also provides that each page of the petition, and all exhibits and certifications, must be securely fastened together (see Village Law § 2-200[1][b][6]).
Upon the filing of a petition seeking the proposed incorporation of a village with the supervisor of the town in which all or the greatest part of such territory of the proposed village is located pursuant to the terms of Article 2 of the Village Law (see Village Law § 2-200[1][f]), such town supervisor shall then be responsible for presiding over a hearing upon the filed petition for the sole purpose of considering the legal sufficiency of that petition (see Village Law § 2-204). In connection with this duty, the presiding town supervisor is required to post notices of the hearing in the manner prescribed by Article 2 of the Village Law, which relate, inter alia, the date, time and place of the scheduled hearing, the aforesaid purpose of said hearing, and further advising that objections to the legal sufficiency of the petition must be in writing and be signed by one or more of the residents of such town (see Village Law § 2-204). Upon conducting such a hearing, the town supervisor shall hear objections to the legal sufficiency of the petition for incorporation based upon only the following grounds: (1) that a person signing the petition was not qualified to do so, and/or (2) that if there be an allegation contained therein which submits that the persons signing such petition constitute 20% of the residents of such territory who are qualified to vote for officers of the greater town, that such allegation is false, and/or (3) that such territory is part of a city or village, and/or (4) that if such territory is less than an entire town, it contains more than 5 square miles and the limits of such territory are not coterminous with the entire boundaries of a school, fire, fire protection, fire alarm, town special or town improvement district of a town, and the limits of such territory are not coterminous with parts of the boundaries of more than one school, fire, fire protection, fire alarm, town special or town improvement district of a town, all of which are wholly contained within such limits and within one town, and/or (5) that such territory does not contain a population of at least 500 regular inhabitants, and/or (6) that the petition fails to conform to the requirements of Article 2 of the Village Law in some other specified respect (see Village Law § 2-206[1][a]-[g]).
To the extent that Village Law § 2-204 requires that all objections to the legal sufficiency of the petition must be submitted in writing and signed by a town resident, Village Law § 2-206 further provides that testimony as to such objections may also be taken at the hearing, but must also be reduced to writing, ostensibly in the form of a transcript, and signed by the testifying objector, and all written objections and signed testimony must clearly reflect the name and address of the objector (see Village Law § 2-206[3]). In addition, Village Law § 2-206 provides that the burden of proof at the hearing with regard to the legal sufficiency of the petition rests [*16]solely upon the objectors, who are confined to argument that the petition fails to conform to the requirements of Article 2 of the Village Law pursuant to one or more of the grounds specified in Village Law § 2-206(1)(a)-(g) (see Village Law § 2-206[3]).
Following a town supervisor's determination regarding the legal sufficiency of a petition for incorporation, any aggrieved resident of the greater town in which the proposed village is located may seek judicial review of same pursuant to the terms of Section 2-210(1) of the Village Law which provides that judicial review pursuant to Article 78 of the Civil Practice Law and Rules (CPLR) is available, but is limited to consideration of allegations that said decision "is illegal, based on insufficient evidence, or is contrary to the weight of the evidence" (Village Law § 2-210[1]; see Matter of Barnard v St. Lawrence, 44 AD3d 1037, 1038; see also Matter of Greenberg v Veteran, 752 F Supp 630, 631).
This Court's review of the legal sufficiency of the challenged decision leads first to consideration of respondent Feiner's initial determination therein that the Incorporation Petition failed to describe the territory of the proposed Village of Edgemont with the necessary "common certainty" as required by Village Law § 2-202(1)(c)(1). Specifically, the Court notes that through the challenged decision, respondent Feiner concluded that the Incorporation Petition failed to describe the area of the proposed Village of Edgemont with "common certainty," as required by Article 2 of the Village Law, in reliance upon his conclusion that the legal description of the boundaries of the proposed Village of Edgemont set forth in the Incorporation Petition were inconsistent. In support of this conclusion, respondent Feiner relates that he relied upon the hearing testimony and evidence proffered by John M. Martin, Esq.,[FN3] as echoed in the hearing testimony and affidavit submitted by respondent Payson, in reaching his conclusion that the Incorporation Petition relies upon two distinct and inconsistent descriptions of the boundaries of the proposed Village of Edgemont, those being the boundaries of the Greenville Fire District and School District Number 6, respectively. Based upon this perceived inconsistency in the Incorporation Petition, respondent Feiner concluded that he was unable to determine whether somewhere between 9 and 11 tax parcels on Vandelay Court and Hearthstone Circle were included within the boundaries of the proposed Village of Edgemont, which he relied upon as the basis for his determination in the challenged decision that the Incorporation Petition failed to describe the territory of the proposed Village of Edgemont with the necessary "common certainty."
Upon reviewing respondent Feiner's conclusions regarding the inconsistency he perceived with the legal description of the boundaries of the proposed Village of Edgemont set forth in the Incorporation Petition, this Court's scrutinizing examination of the Incorporation Petition revealed that the description provided therein of the boundaries of the proposed Village of Edgemont was furnished through two forms, the first being a metes-and-bounds description of the Greenville Fire District which was copied verbatim from a resolution adopted by the Board of Supervisors of Westchester County on July 2, 1923 when creating same, and the second being a map drawn in 1934 which was drafted to depict the boundaries of the Greenville Fire District and reflects language from the drafters indicating that said map was based upon the above-referenced resolution of the Board of Supervisors of Westchester County in 1923.[FN4]
Upon first examining the above-referenced metes-and-bounds description set forth within the Incorporation Petition, it must first be understood that same was drafted nearly 100 years ago during a period in the history of Westchester County when large tracts of land were largely undeveloped and were owned by a relatively small number of individuals, leading metes-and-bounds descriptions to frequently reference lands owned by a particular person, and where possible, to reference other previously established boundary lines of municipalities or other political entities including school districts. Apparently confusing to some, the 1923 metes-and-bounds description furnished within the Incorporation Petition was originally designed to establish the boundaries of the newly-created Greenville Fire District, and in so doing, made reference to the boundaries of land owned by specific individuals, the borders of neighboring municipalities, and specifically provided a preamble that it was intended to be embraced within the boundaries of School District #6. However, although the somewhat ancient metes-and bounds description submitted in support of the Incorporation Petition makes reference to multiple boundaries which existed in 1923, including a reference in its preamble to the more ancient boundaries of School District No. 6 as defined by a map drafted in 1899, the metes-and-bounds description represented itself to define only the boundaries of the Greenville Fire District as they existed in 1923.[FN5] In any event, despite the outdated vintage and/or non-existence of many of the boundaries utilized and referenced in the 1923 metes-and-bounds description annexed to the Incorporation Petition, it served to create the specific geographic boundaries of the Greenville Fire District, which the record indicates have remained unchanged since the creation of same in 1923 to the present day, irrespective of the references to other boundaries within the metes-and-bounds description, or the preamble to same. Stated succinctly, despite the inclusion of a [*17]preamble to the metes-and-bounds description adopted by the Board of Supervisors of Westchester County in 1923 to define the boundaries of the Greenville Fire District, which references the boundaries of School District No. 6 as they existed in 1923, it is the actual metes-and-bounds description itself which defines and describes the approved boundaries of the Greenville Fire District upon which the Incorporation Petition relies, irrespective of whether or not those boundaries are completely embraced within those of School District No. 6 as they exist today.
However, the Incorporation Petition did not rely exclusively upon the 1923 metes-and-bounds description of the Greenville Fire District to describe and otherwise demonstrate the boundaries of the proposed Village of Edgemont, rather the Incorporation Petition was also supported by an annexed map which was drafted in 1934 to specifically depict the boundaries of the Greenville Fire District, and which reflects language from the drafters indicating that said map was based upon the above-referenced resolution of the Board of Supervisors of Westchester County in 1923. Consequently, to the extent that the ancient metes-and-bounds description provided with the Incorporation Petition could have been confused in some manner to reflect the boundaries of an area other than those of the Greenville Fire District, the additional annexation to the Incorporation Petition of the map drawn in 1934 to depict the exact boundaries of the Greenville Fire District, corroborated, confirmed and more clearly defined the boundaries of the proposed Village of Edgemont as being those of the existing Greenville Fire District which have remained unchanged since the creation of same in 1923. Indeed, respondent Feiner acknowledges as much within the challenged decision wherein he states that he understands that the proponents of the Incorporation Petition intended to describe the boundaries of the area of the proposed Village of Edgemont as being defined by the boundaries of the Greenville Fire District through reference to the map of same annexed to the Incorporation Petition.
Based upon the foregoing, this Court finds that the proffered forms of proof annexed to the Incorporation Petition as Exhibit A, including both the 1923 metes-and-bounds description of the Greenville Fire District and the 1934 map depicting the boundaries of the Greenville Fire District, satisfy the strict compliance standard applied by the Appellate Division, Second Department to the format requirements of Village Law § 2-202(1)(c)(1)(a)-(c) (see Matter of Incorporation of the Vil. of Airmont [Lefkowitz-Reisman], 144 AD2d 465, lv. denied 73 NY2d 704; see also Matter of Incorporation of Proposed Vil. of Monsey, 133 AD2d 84; Matter of the Incorporation of the Proposed Vil. of Kaser, 123 AD2d 320), and also describe the territory of the proposed Village of Edgemont in a manner sufficient to identify the location and extent of the boundaries of same with "common certainty" pursuant to Village Law § 2-202(1)(c)(1) (see Matter of Barnard v St. Lawrence, 44 AD3d 1037, 1038; see also Matter of Incorporation of the Vil. of Airmont [Lefkowitz-Reisman], 144 AD2d at 466; Matter of Incorporation of Vil. of Viola Hills, 129 AD2d 579, 580; Matter of Rose v Barraud, 61 Misc 2d 377, aff'd 36 AD2d 1025). Accordingly, as respondent Feiner reached his conclusion within the challenged decision that the Incorporation Petition failed to describe the territory of the proposed Village of Edgemont with "common certainty" based upon his erroneous belief that the Incorporation Petition "says that the territory proposed to be incorporated is the Edgemont School District as defined in 1899," which he mistakenly relied upon as the basis for his determination that an inconsistency existed in the proffered description of the boundaries of the proposed Village of Edgemont, this Court finds [*18]that such conclusion is not supported by sufficient evidence, and is otherwise also contrary to the weight of the evidence, and therefore must be reversed (Village Law § 2-210[1]; see Matter of Barnard v St. Lawrence, 44 AD3d at 1038; see also Matter of Greenberg v Veteran, 752 F Supp at 631).
This Court's review of the legal sufficiency of the challenged decision leads next to its consideration of respondent Feiner's determination therein that the Incorporation Petition failed to reflect the signatures of 20% of the residents who are qualified to vote in the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1). In this regard, the Court initially examined the evidence proffered in support of the Incorporation Petition to demonstrate its compliance with the requirements of Village Law § 2-202(1)(a)(1), first reviewing the affidavit in evidence of Sharyn E. Lewis which reflects the comprehensive efforts she undertook to initially compile an accurate list of the residents of the proposed Village of Edgemont - as defined by the Greenville Fire District boundaries - who are qualified to vote for town officers in the Town of Greenburgh. The efforts undertaken by Ms. Lewis included her utilization of the Board of Elections's voter registration rolls for each ED that contained voters residing within the area of the proposed Village of Edgemont as of February 2017, totaling 6,668 voters as of February 3, 2017. Ms. Lewis then reduced that preliminary total of 6,668 voters by 1,231 to reflect those registered voters whose street addresses lay outside of the boundaries of the proposed Village of Edgemont, by another 61 to account for those whom she had determined to be deceased, by another 25 to account for those bearing duplicate voter registrations, by another 170, another 132, and another 59, to reflect those registered voters who no longer resided within the boundaries of the proposed Village of Edgemont following the sale of their homes, as well as the further reduction of the preliminary total by 58, and then another 5, to account for former residents no longer eligible to vote for town officers of the Town of Greenburgh, and then by another 4 to reflect those registered voters whose listed addresses could not be confirmed. After then adding 34 to the preliminary total to reflect those residents who were not presently registered to vote, yet were qualified to do so, Ms. Lewis calculated a total of 4,827 residents of homes located within the boundaries of the proposed Village of Edgemont who were qualified and/or registered to vote for officers of the Town of Greenburgh as of February 3, 2017. As filed, the Incorporation Petition reflected a calculated total of 4,827 residents of the proposed Village of Edgemont who were qualified to vote for officers of the Town of Greenburgh, and was further supported by the annexation thereto of petition pages bearing the signatures, names and addresses of 1,317 of those calculated 4,827 residents, which represented the signatures of 27.3% of the qualified residents of the proposed Village of Edgemont, and thereby established prima facie proof of the Incorporation Petition's satisfaction of the requirements of Village Law § 2-202(1)(a)(1).
Through the Court's consideration of the bases upon which respondent Feiner relied within the challenged decision to reach his determination that the Incorporation Petition failed to satisfy the requirements of Village Law § 2-202(1)(a)(1), it was first necessary to examine respondent Feiner's determination therein that "[t]here are 5,993 qualified voters residing in the area of the proposed new village," and it was then necessary to examine his further determination therein that "[t]he petition contains 1,021 valid signatures." Readily apparent from the record, respondent Feiner engaged in none of the above-referenced comprehensive efforts undertaken by [*19]Ms. Lewis in support of her calculated total of 4,827, rather respondent Feiner simply claims to have started with the "7,319 names" listed on the Board of Elections's voter registration roll for the Greenville Fire District without indicating the identity of those ED's he included therein, and then reduced that number by 1,326 to account for those voters residing in ED 17 whom he determined to reside outside of the boundaries of the Greenville Fire District. Upon this basis alone, respondent Feiner concluded, without any further analysis such as that assiduously conducted by Ms. Lewis in support of the Incorporation Petition, that there were 5,993 qualified voters residing in the proposed Village of Edgemont. As respondent Feiner's calculus produced a dramatically greater number of qualified voters residing in the proposed Village of Edgemont than that proffered in support of the Incorporation Petition, this Court would have undertaken efforts to examine the reliability of his calculations and his ensuing conclusion to reject the total of 4,827 qualified voters proffered in support of the Incorporation Petition. However, as respondent Feiner neglected to indicate within the challenged decision the specific ED's from which he drew his voter rolls, and further failed to either make any effort to verify the continuing voting qualifications of any of the voters whose names appeared on the undisclosed voter rolls he relied upon (such as by death), or to determine if there were qualified voters whose names did not appear on the voter rolls he relied upon, the record lacks any evidence which this Court might have relied upon to conclude that respondent Feiner's rejection of the Incorporation Petition's proffered total of 4,827 qualified voters of the proposed Village of Edgemont was lawful and otherwise adequately supported by evidence in the record. Consequently, this Court is compelled to reject respondent Feiner's preliminary determination to reject the Incorporation Petition's proffer that there were 4,827 qualified voters of the proposed Village of Edgemont as of February 3, 2017, as his determination to fault that assiduously calculated figure and replace it with his own figure of dubious value was unlawful and otherwise inadequately supported by the evidence in the record.
Turning next to examine respondent Feiner's determination within the challenged decision to strike 296 petition signatures from the total of 1,317 which were annexed to the Incorporation Petition, and to thereupon conclude that the Incorporation Petition was supported by only 1,021 valid signatures, the Court notes that respondent Feiner indicated that he invalidated a total of 291 signatures from the Incorporation Petition based solely upon respondent Freitag's objections. Of greatest significance, respondent Feiner adopted the mere suspicion-based argument of respondent Freitag regarding what she believed to be the "fraudulent" signatures of an individual named Craig Bernstein on pages 169 and 182 of the Incorporation Petition, which she supports by relating that she believed that neither of those signatures were sufficiently similar to the signature of a Craig Bernstein appearing on the Board of Elections's voter registration card for that named individual. Although respondent Freitag may have offered her sincere suspicion, her failure to possess any expertise with regard to handwriting comparisons and analysis, as well as the absence of any evidence within the record from someone who does possess such expertise, renders her mere suspicion-based opinion to be of little qualitative value. Despite respondent Freitag's patently obvious lack of qualifications to offer a reliable conclusion regarding handwriting and/or signature authorship, respondent Feiner relied exclusively upon her dubious opinion to reach his conclusion within the challenged decision that Craig Bernstein "did not personally sign the petition," which he claims was further supported by Craig Bernstein's [*20]failure to specifically dispute respondent Freitag's opinion in an affidavit he hastily executed while he was traveling outside of the State of New York on business on April 24, 2017. As the applicable legal standard for determining that a signature appearing upon a petition was fraudulent requires proof by "clear and convincing evidence," the lack of any reliable evidence within the record to establish that Craig Bernstein's signatures on pages 169 and 182 of the Incorporation Petition were procured by fraud compels the reversal of respondent Feiner's determination to accept respondent Freitag's inexpert opinion in that regard (see Matter of Lavine v Imbroto, 98 AD3d 620; see also Matter of Finn v Sherwood, 87 AD3d 1044, 1045; Matter of Testa v DeVaul, 65 AD3d 651; Matter of Robinson v Edwards, 54 AD3d 682, 683; Matter of Hennessey v DiCarlo, 21 AD3d 505, 506).
Respondent Feiner then compounds his mistaken reliance upon respondent Freitag's unsupported suspicion-based opinion by extrapolating therefrom the further broad-reaching conclusion that since he had determined that Craig Bernstein's signatures appearing on pages 169 and 182 of the Incorporation Petition were fraudulent, then he was concluding that all 271 of the petition signatures which were witnessed by the same two individuals who had witnessed the petition signatures on pages 169 and 182 of the Incorporation Petition, namely petitioner Aubrey G. Daniels and Alix M. Brown, were invalid. However disconcerting respondent Feiner's decision to unlawfully credit respondent Freitag's dubious opinion regarding the nature of Craig Bernstein's petition signatures might be to this Court, his conclusion to exclude the additional 271 signatures witnessed by petitioner Daniels and Ms. Brown reflects a clear disregard of long-standing analogous law pertaining to designating petitions, which holds that in the absence of a finding that an entire petition is permeated with fraud, a showing that some signatures appearing thereon were not properly obtained will not result in the invalidation of the entire petition (see Matter of Ferraro v McNab, 60 NY2d 601, 603; see also Matter of Felder v Storobin, 100 AD3d 11; Matter of McHugh v Comella, 307 AD2d 1069). Upon the very same analysis and for the very same reasons, the Court finds that respondent Feiner's conclusion within the challenged decision to credit respondent Freitag's additional dubious suspicion-based opinion regarding the legitimacy of the signatures of Bryan Brunell, Frances Jameson, Michele Lazar and Abbe Lazar appearing on page 233 of the Incorporation Petition, as well as her opinion regarding the signature of Sophie Strauss appearing on page 5 of the Incorporation Petition, and his further conclusion to then invalidate all 17 of the petition signatures witnessed by David DiPietto and all 3 of the signatures witnessed by Alisa Strauss, reflects a further disregard of the applicable law (Id.). Consequently, this Court is compelled to reverse respondent Feiner's determination within the challenged decision to invalidate those 291 signatures from the Incorporation Petition which were based upon respondent Freitag's objections. Finally, as properly conceded by the petitioners, respondent Feiner's determination within the challenged decision to invalidate the 5 signatures which appeared on pages 117 and 120 of the Incorporation Petition due to the absence of the required prefatory statements from those pages was adequately supported by the evidence in the record and constitutes a violation of the requirements of Village Law § 2-202(1)(e)(2) (see Village Law § 2-206(1)(g).
Based upon the foregoing, including this Court's reversal of respondent Feiner's rejection of the proffer made within the Incorporation Petition that there were a total of 4,827 residents of the proposed Village of Edgemont who were qualified to vote for officers of the Town of [*21]Greenburgh as of the filing of same, as well as this Court's reversal of respondent Feiner's invalidation of 291 signatures from the Incorporation Petition, this Court finds that the Incorporation Petition was adequately supported by the annexation thereto of petition pages bearing the signatures, names and addresses of 1,312 of those calculated 4,827 residents, thereby representing the signatures of 27.2% of the qualified residents of the proposed Village of Edgemont in compliance with the requirements of Village Law § 2-202(1)(a)(1). Accordingly, as respondent Feiner reached his conclusion within the challenged decision that the Incorporation Petition failed to reflect the signatures of 20% of the residents who are qualified to vote in the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1) based upon his erroneous rejection of the proffer made within the Incorporation Petition that there were a total of 4,827 residents of the proposed Village of Edgemont who were qualified to vote for officers of the Town of Greenburgh, and upon his erroneous invalidation of 291 signatures from the Incorporation Petition, both of which he mistakenly relied upon as the basis for his determination that the Incorporation Petition failed to reflect the signatures of 20% of the residents who are qualified to vote in the proposed Village of Edgemont as required by Village Law § 2-202(1)(a)(1), this Court finds that such conclusion is illegal, is not supported by sufficient evidence, and is otherwise also contrary to the weight of the evidence, and therefore must be reversed (Village Law § 2-210[1]; see Matter of Barnard v St. Lawrence, 44 AD3d at 1038; see also Matter of Greenberg v Veteran, 752 F Supp at 631).
This Court's review of the legal sufficiency of the challenged decision leads next to its consideration of respondent Feiner's determination therein that the Incorporation Petition was not supported by an attached list of the names and addresses of the regular inhabitants of the territory of the proposed Village of Edgemont as required by Village Law § 2-202(1)(c)(2). In this regard, it must be recalled that insofar as the contents of a petition for incorporation are concerned, it must contain, inter alia, an allegation that the territory of the proposed village contains a population of at least 500 regular inhabitants (see Village Law § 2-202[1][b][1]-[6]), and insofar as the term regular inhabitants is defined under Village Law § 2-200(1), it shall include all persons residing in the territory of the proposed village who are 18 years-of-age or older, and who maintain a residence therein which is used for voting purposes (see Village Law § 2-200[2]). Against this backdrop, the Court initially examined the evidence proffered in support of the Incorporation Petition to demonstrate its compliance with the requirements of Village Law § 2-202(1)(c)(2), first recognizing the proffer made within Exhibit B annexed to the Incorporation Petition to the effect that there were a total of 4,827 residents of the proposed Village of Edgemont who were qualified to vote for officers of the Town of Greenburgh, and whom were also characterized as regular inhabitants thereof within the Incorporation Petition. The Court next takes note of the comprehensive efforts undertaken by Ms. Lewis in connection with her assiduous calculation of that list to exclude persons therefrom whose street addresses lay outside of the boundaries of the proposed Village of Edgemont, those whom she had determined to be deceased, those bearing duplicate voter registrations, those who no longer resided within the boundaries of the proposed Village of Edgemont, and those whose listed addresses could not be confirmed to exist, thereby satisfying the due diligence requirements for the compilation a complete and accurate list of regular inhabitants pursuant to Village Law § 2-202(1)(c)(2) (see Matter of Baker v Heaney, 15 AD3d 577, lv. denied 5 NY3d 702 [where petition for [*22]incorporation failed to exclude deceased and otherwise unqualified voters from list of regular inhabitants annexed to petition for incorporation, necessary allegation that proposed village territory contained a population of at least 500 regular inhabitants could not be substantiated as required by Village Law §§ 2-200(1) and 2-202(1)(b)(3)]; see also Matter of Larkin v Colello, 131 Misc 2d 790, 792). Consequently, as Exhibit B annexed to the Incorporation Petition reflected a reliably calculated complete and accurate list of 4,827 residents (including their respective names and addresses) of the proposed Village of Edgemont who were regular inhabitants thereof, and contained the substantiated allegation that this list reflected the existence of at least 500 regular inhabitants of the proposed Village of Edgemont, this Court finds that prima facie proof of the Incorporation Petition's satisfaction of the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2) was established.
Turning next to consider the bases upon which respondent Feiner relied within the challenged decision to reach his determination that the Incorporation Petition failed to contain an accurate list of regular inhabitants, the Court notes that respondent Feiner again relied upon his herein discredited determination that there were 5,993 qualified voters residing in the proposed Village of Edgemont, rather than the figure of 4,827 qualified voters alleged in support of the Incorporation Petition, and then added to his figure an unspecified "thousands more" to reflect his presumed number of children residing within the proposed Village of Edgemont, and thereupon determined that the list of regular inhabitants annexed to the Incorporation Petition was inaccurate. However, upon the review of this determination, the Court finds it significant that respondent Feiner's articulated basis for rejecting the Incorporation Petition's annexed list of regular inhabitants is not supported by any conclusion, let alone any reference whatsoever, to the effect that the Incorporation Petition fails to contain a substantiated allegation that the territory of the proposed Village of Edgemont contains a population of at least 500 regular inhabitants, rather he merely references and relies upon his simplistic conclusion that the list was inaccurate.
The significance of this omission is paramount, as Matter of Baker v Heaney can be understood to confirm that the appropriate focus of the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2), to the extent that they collectively require that a petition for incorporation be supported by an allegation that the territory of the proposed village contains a population of at least 500 regular inhabitants, does not rest upon the exactitude of the list itself, but rather rests upon the ultimate determination of whether or not any inaccuracies in the list undermine the required allegation that the proposed village territory contains a population of at least 500 regular inhabitants (see Matter of Baker v Heaney, 15 AD3d at 578; see also Matter of Defreestville Area Neighborhood Assn v Tazbir, 23 AD3d at 73 [recognizing that good faith effort to compile list of regular inhabitants satisfied statutory requirements since such a list can never be "complete" from one day to the next; yet incorrectly characterizes cases from the Appellate Division, Second Department to stand for the proposition that the list of regular inhabitants must be free from any imperfection]). Indeed, both the Appellate Divisions of the Second Department and Third Department, have consistently held that the mere existence of inaccuracies in the list of regular inhabitants is not determinative, rather it is the effect of any such founded inaccuracies upon the Incorporation Petition's satisfaction of the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2), to the extent that they require that the incorporation petition be supported by an allegation that the territory of the proposed village [*23]contains a population of at least 500 regular inhabitants, that is determinative upon a town supervisor's evaluation of a petition for incorporation under Article 2 of the Village Law (see Matter of Barnard v St. Lawrence, 44 AD3d 1037 [holding only that list of regular inhabitants be accurate and complete, but not requiring that it be free from any inaccuracies]; see also Matter of Baker v Heaney, 15 AD3d at 578 [as above]; Matter of Venne v Sanford, 25 AD3d 1007 [minor discrepancies in list of regular inhabitants may be tolerated where record demonstrates good faith effort to comply with requirements of Article 2 of the Village Law]; Matter of Defreestville Area Neighborhood Assn. v Tazbir, 23 AD3d 70, 73 [holding that list of regular inhabitants need not reflect the absence of any inaccuracies, but must give town supervisor ability to determine existence of 500 regular inhabitants]; Matter of Elevitch v Colello, 168 AD2d 681 [holding only that list of regular inhabitants be complete, but not requiring that it be free from any inaccuracies]; Matter of Luria v Conklin, 139 AD2d 650 [holding only that list of regular inhabitants be complete, but not requiring that it be free from any inaccuracies] Matter of Incorporation of Vil. of Viola Hills [Lempert-Conklin], 129 AD2d 579 [holding only that list of regular inhabitants be accurate and complete, but not requiring that it be free from any inaccuracies]).
Indeed, any alternative interpretation of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2) to require that the list of regular inhabitants be free from any imperfection would ensure that no village could ever be incorporated in the State of New York under Article 2 of the Village Law, as at any point in time, from one day to the next, new and previously unlisted inhabitants are born and/or move into the territory of a proposed village, and former previously listed inhabitants decease or otherwise move outside of such territorial boundaries. Such an appreciation of the real-world application of the provisions of Article 2 of the Village Law was demonstrated by the trial court in Matter of Village of Hampton Bays, holding that since it is impractical to interpret Article 2 of the Village Law to demand that the required list of regular inhabitants be absolutely complete and free from any inaccuracy, Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2) must be understood to require only that the list of regular inhabitants be "substantially complete" in order to comply with the statutory rubric (Matter of Village of Hampton Bays, 40 Misc 2d 434, 436). Consequently, this Court is compelled to reverse respondent Feiner's determination within the challenged decision that the Incorporation Petition failed to satisfy the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2), as his determination to reject the list of regular inhabitants proffered in support of the Incorporation Petition based solely upon his mere conclusion that the list was inaccurate reflects a failure to properly apply the governing law.
Based upon the foregoing, this Court finds that the proffered list annexed to the Incorporation Petition as Exhibit B, bearing the names and addresses of 4,827 regular inhabitants, reflects a satisfactory allegation that the proposed Village of Edgemont contains a population of at least 500 regular inhabitants, and represents an adequately complete and accurate list of such regular inhabitants in compliance with the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2) (see Matter of Barnard v St. Lawrence, 44 AD3d at1039; see also Matter of Baker v Heaney, 15 AD3d at 578; Matter of Venne v Sanford, 25 AD3d at 1009; Matter of Defreestville Area Neighborhood Assn. v Tazbir, 23 AD3d at 73; Matter of Elevitch v Colello, 168 AD2d at 682; Matter of Luria v Conklin, 139 AD2d at 650; Matter of Incorporation [*24]of Vil. of Viola Hills [Lempert-Conklin], 129 AD2d at 580. Accordingly, as respondent Feiner reached his determination within the challenged decision to reject the list of regular inhabitants annexed to the Incorporation Petition as being insufficient to satisfy the requirements of Village Law §§ 2-200(1), 2-202(1)(b)(3) and 2-202(1)(c)(2), based solely upon his mere conclusion that the annexed list of regular inhabitants was inaccurate, this Court finds that this determination is illegal, is not supported by sufficient evidence, and is otherwise also contrary to the weight of the evidence, and therefore must be reversed (Village Law § 2-210[1]; see Matter of Barnard v St. Lawrence, 44 AD3d at 1038; see also Matter of Greenberg v Veteran, 752 F Supp at 631).
Based upon all of the foregoing, this Court finds that the challenged decision made by respondent Paul Feiner in his capacity as the Town Supervisor of the Town of Greenburgh, dated May 5, 2017, which denied the Incorporation Petition filed on behalf of those residents of the Town of Greenburgh who were seeking the legal authority to conduct a referendum regarding the potential creation of the incorporated Village of Edgemont from within the Town of Greenburgh pursuant to Article 2 of the Village Law is hereby reversed, vacated and annulled; and therefore, it is ordered that there being no sustained objections to the Incorporation Petition, this Court issues a declaratory judgment that the Incorporation Petition is compliant with all requirements of Article 2 of the Village Law; and therefore, it is further ordered that the Town Clerk of the Town of Greenburgh shall comply with the terms of Village Law §§ 2-212, 2-214, 2-218 and 2-220 and undertake all actions necessary, pursuant to the authority and obligations appearing thereunder, to schedule an election to determine the question of incorporation no later than 40 days from the date of filing of this Decision, Order and Judgment, thereby permitting each resident of the proposed Village of Edgemont who is qualified to vote for town officers of the Town of Greenburgh, to exercise their individual statutory right to vote and thereby determine whether the proposed Village of Edgemont shall become the incorporated Village of Edgemont pursuant to the provisions and authority of Article 2 of the Village Law.
The foregoing constitutes the Decision, Order and Judgment of this Court.
FootnotesFootnote 1:The map of the Greenville Fire District, as created and filed in 1934, which was filed within the Incorporation Petition is previously referred to herein as the GFD map.
Footnote 2:The record reveals that John M. Martin, Esq., was not a qualified objector within the meaning of Village Law § 2-204 due to his status as a non-resident of the Town of Greenburgh, but rather was paid by respondent Feiner to make his proffer of testimony and submit an evidentiary affidavit during the hearing proceedings conducted on April 5, 2017.
Footnote 3:With specific regard to the circumstances under which John M. Martin, Esq., was permitted by respondent Feiner to offer hearing testimony and evidentiary submissions during the hearing proceedings after being hired to do so by respondent Feiner, in disregard of the fact that he was not a qualified objector within the meaning of Village Law § 2-204 due to his lack of residency within the Town of Greenburgh, this Court finds that it need not strike his testimony and evidence from the record, as his proffered conclusions regarding his inability to discern whether between 9 and 11 tax parcels lay within the boundaries of the proposed Village of Edgemont as reflected in the Incorporation Petition, fails to reflect his proper consideration of the legal framework of Article 2 of the Village Law upon which this Court's ultimate determination is based.
Footnote 4:Although Village Law § 2-202(c)(1) requires that only one such form be included within a petition for incorporation, the drafters of the Incorporation Petition exceeded that requirement, perhaps believing that doing so would ensure clarity of the boundaries of the proposed Village of Edgemont.
Footnote 5:Of course, many of the boundaries utilized and referenced within this metes-and-bounds description have changed over the last 95 years, such as "the land of said Emily O. Butler," "the westerly line of the Town of Scarsdale," and "the land now or late of Col. J.S. Odell to land of W.H. Wright," amongst many others which may have changed including School District #7.
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