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In the Matter of v. Village of Woodbury

March 29, 2012

IN THE MATTER OF VILLAGE OF KIRYAS JOEL, NEW YORK, MAYOR ABRAHAM WIEDER, VILLAGE, ADMINISTRATOR GEDALYE SZEGEDIN, VILLAGE TRUSTEE MOSES GOLDSTEIN, VILLAGE TRUSTEE JACOB FREUND, VILLAGE TRUSTEE SAMUEL LANDAU, VILLAGE TRUSTEE JACOB REISMAN, EACH IN HIS OFFICIAL CAPACITY AS AN OFFICER OF THE VILLAGE OF KIRYAS JOEL, ROSE UNGAR, DAVID UNGAR, MOSES WITRIOL, ATKINS BROTHERS ASSOCIATES, LLC, AMAZON REALTY ASSOCIATES, INC., BURDOCK REALTY ASSOCIATES, INC., COMMANDEER REALTY ASSOCIATES, INC., DILIGENT REALTY ASSOCIATES, INC., AND "JOHN DOES AND JANE DOES" "1" THROUGH "250" AS RESIDENTS OF WOODBURY OF ORTHODOX JEWISH ORIGIN LIVING IN WESTERN WOODBURY, PETITIONERS-PLAINTIFFS, FOR A JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES AND A DECLARATORY JUDGMENT PURSUANT TO SECTION 3001 OF THE CIVIL PRACTICE LAW AND RULES
v.
VILLAGE OF WOODBURY, NEW YORK AND VILLAGE OF WOODBURY BOARD OF TRUSTEES, RESPONDENTS-DEFENDANTS, - AND - TOWN OF WOODBURY, NEW YORK, VILLAGE OF WOODBURY PLANNING BOARD, AND GARY THOMASBERGER, AS THE VILLAGE OF WOODBURY BUILDING/ZONING INSPECTOR AND CODE ENFORCEMENT OFFICER, DEFENDANTS. :



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

Petitioners-Plaintiffs (referred to herein as "Plaintiffs") move to remand this action to the Supreme Court of the State of New York, Orange County. Plaintiffs also seek to recover costs and actual expenses, including attorneys' fees, incurred as a result of the alleged improper removal. For the reasons stated below, the motion is GRANTED in part and DENIED in part.

I.Background

A.Procedural History

The Court assumes the parties' familiarity with the facts of this case and discusses here only the facts and procedural history that are relevant to the pending motion.

On October 14, 2011, Plaintiffs commenced this hybrid N.Y. C.P.L.R. Article 78 and declaratory judgment action in the Supreme Court of the State of New York, Orange County, seeking to enjoin the implementation and enforcement of the Village of Woodbury Comprehensive Plan (the "Plan"), the Religious Land Use Local Law and related local zoning law amendments, and to have the Plan and challenged laws declared invalid. Plaintiffs' Verified Complaint contains eighteen causes of action. Generally, Plaintiffs allege that the Plan, the Religious Land Use Local Law and the local zoning law amendments violate Plaintiffs' rights under the United States and New York State Constitutions and the Religious Land Use and Institutionalized Persons Act, and that the challenged Plan and local laws are unconstitutionally vague and were adopted in violation of the State Environmental Review Act and various other state, municipal and village laws.

Plaintiffs' Verified Petition and Complaint names five defendants: Village of Woodbury, New York; Village of Woodbury Board of Trustees (collectively, the "Village" or "Removing Defendants"); Village of Woodbury Planning Board (the "Planning Board"); Gary Thomasberger, in his official capacity as the Village of Woodbury Building/Zoning Inspector and Code Enforcement Officer (collectively, the "Village Defendants"); and Town of Woodbury, New York (the "Town"). On October 27, 2011, Plaintiffs served all five defendants with the Summons, Notice of Petition, and Verified Petition and Complaint.

On November 22, 2011, the Village filed a Notice of Removal with this Court pursuant to 28 U.S.C. § 1446 on the basis that certain of Plaintiffs' claims raise a federal question over which this Court has original jurisdiction under 28 U.S.C. § 1331. (Notice of Removal ¶ 2.) The Notice of Removal was filed only on behalf of the Removing Defendants, and did not identify the Planning Board, Mr. Thomasberger, or the Town as joining in or consenting to the Notice of Removal. (Id. ¶ 1.) Moreover, this Court did not receive any written consent from the other defendants prior to the expiration of the thirty-day period for removal set forth in28 U.S.C. § 1446(b).

On December 2, 2012, counsel for the Removing Defendants*fn1 sent a letter to this Court requesting a pre-motion conference in anticipation of filing a motion to dismiss. (Doc. 3.) In Plaintiffs' response letter, dated December 7, 2012, Plaintiffs sought permission to file a motion to remand this action on the ground that, inter alia, the Village's Notice of Removal was defective because none of the other defendants had joined the Notice or otherwise provided this Court with unambiguous written evidence of their consent within the statutory time period for removal. (Sterthous Aff. Ex. B, at 2.) On December 8, 2012, counsel for the Town sent a letter to this Court to explain that he had provided counsel for the Removing Defendants with verbal consent on behalf of the Town, but had "not formally advis[ed] a Court of that consent." (Sterthous Aff. Ex. C, at 1.) The Court did not receive any response to Plaintiffs' letter from counsel for the Village Defendants on behalf of either the Removing Defendants or the non-removing Village Defendants.

On February 22, 2012, after a pre-motion conference, Plaintiffs filed a Motion to Remand pursuant to 28 U.S.C. § 1447(c) on the ground that the Village's Notice of Removal was procedurally defective for the reason stated above. (Doc. 11.) On February 29, 2012, the Town and the Village Defendants filed separate papers opposing Plaintiffs' Motion to Remand. (Docs. 19, 22.) Plaintiffs filed a single Reply Memorandum of Law in Further Support of its Motion to Remand on March 2, 2012. (Doc. 26.)

II.Legal Standards

A.Removal

The federal removal statute provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The Second Circuit has clearly explained that "[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994) (citation omitted). "'Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.'" Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) (quoting Healy v. Ratta, 292 U.S. 263, 270 (1934)). At all times ...


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