Greenberg v. Veteran Notice of Motion for Supplement Record

    T 108C 
10/82 United States Court of Appeals

FOR THE SECOND CIRCUIT

« 1 P A G E  I
Second C ircu it Rule 2 "(a i governing 

use o f this form  is reprim ed on reverse of 
Page 2 Note requiremen! that supporting 

a ffidav its  he attached

In re Greenberg and Mulligan,
Plaintiffs-Appellees,

v.
Veteran and Tolchin,

Defendant-Appellants
Use short title

_________89-7476________
D t x i e i  \  um ber

NOTICE OF MOTION
slate type o f motion

for Supplement record

MOTION BY: (Name and tel. no. o f  taw firm  and o f  attorney 
in charge o f  case)

Paul Agresta, Town Attorney 
Town of Greenburgh 
P.O. Box 205
Elmsford, New York 10523 
914-993-1546Has consent of opposing counsel:

A. been sought? X Yes □ No
B. been obtained? X Yes Z j No

Has service been effected? X Yes ' ; No
Is oral argument desired? L_2 Yes X No

(Substantive motions only)
Requested return date: June 6 ,  19 8 9

(See Second Circuit Rule 27(b))
Has argument date of appeal been set:

A. by scheduling order? X  Yes Z  No
B. by firm date of argument notice? □  Yes X  No
C. If Yes, enter date: W e e k  O f  A u g  .__ 1 4 ____________

Judge or agency whose order is being appealed.

7
OPPOSING COUNSEL: (Name and tel. no. o f  law firm  and 

o f  attorney in charge o f  case)
Jonathan Lovett
Lovett & Gould
180 East Post Road
White Plains, New York 10601
914-428-8401
EMERGENCY MOTIONS, M OTIONS FOR STAYS & 
INJUNCTIONS PENDING APPEAL
Has request for relief been made below? Z  Yes X No 

(See F .R .A .P  Rule 8)
Would expedited appeal eliminate need 

for this motion?
If No, explain why not: Appellant this uncontested motion promptly because filingapproaching.
Wilrthe parties agree to maintain the

status quo until the motion is heard?
Inapplicable.

□  Yes X No 
seeks to hawdecideddate is

□  Yes No

Judge Goettel (S.D.N.Y.)______________________________________________________
Brief statement of the relief requested:

Appellants seek to supplement record to add complaint in related case 
relied on by court below. Opposing counsel consents to relief sought.

Complete Page 2 of This Form

By: (Signature o f  attorney)

Signed name must be printed beneath

Paul Agresta______

Kindly leave this space blank

Appellant or Petitioner:
Z  Plaintiff XX Defendant 
Appellee or Respondent:
_  Plaintiff Z Defendant

Date

June , 1989
-----  ORDER ----

Appearing for: (Name o f  party)

Anthony Veteran, 
Susan Tolchin

IT IS HEREBY ORDERED that the motion

be and it hereby is granted denied

Date C ircu ii Judge



PAG! 2

Previous requesis for similar relict and disposit ion: Appellants sought the Same relief in a
motion dated May 17, 1989, filed with this Court. The Clerk s office 
rejected that motion by letter dated May 24, 1989 because it was 
included with a motion to consolidate this appeal with a forthcoming 
mandamus petition.

Statement of  the issuc(s) presented b> this motion: Should record on appeal be supplemented to 
include complaint in a related case relied on by the court below.

Brief statement of  the facts {with page references to the moving papers): Def endantS-Appe 1 lantS removed
this case from state court under provisions conferring jurisdiction in 
certain civil rights actions and in federal question cases. The court 
below held that civil rights jurisdiction was lacking, and that it^should 
abstain from exercising federal question jurisdiction. Having decided 
to abstain, the court remanded. (Agresta Affidavit 1111 8-10)

Summarv of  the argument (with page references to the moving papers):This case was one of two related cases below. The court below relied 
on the complaint in the related case for background facts and referred 
to it in its decision. (Agresta Affidavit 1111 7, 12) Thus, that 
complaint should be readily available to this Court on this appeal. 
Opposing counsel has consented to the relief sought.
Because there is no opposition, and because joint appendix and 
Appellants brief are due June 19, 1989, Appellants apply for a 
June 6, 1989 return date.



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT
______________________________________________ _
In the Matter of the Application
of MYLES GREENBERG and FRANCES M. :
MULLIGAN,

Plaintiffs-Appellees,

Docket No. 89-7476 

AFFIDAVIT

-against-
ANTHONY F. VETERAN and 
SUSAN TOLCHIN,

Defendants-Appellants. 
__________________________________________ _
STATE OF NEW YORK )) ss. :
COUNTY OF WESTCHESTER )

PAUL AGRESTA, being sworn, states:
1. I am Town Attorney for the Town of Greenburgh, 

counsel for Defendants-Appellants Anthony F. Veteran (the 
"Town Supervisor") and Susan Tolchin. ^ I submit this 
affidavit in support of the Town Supervisor's motion to 
supplement the record on this appeal to include the complaint 
in a related action, Jones v. Deutsch, 88 Civ. 7738 (GLG) 
(S.D.N.Y.), which was also before the Court below, and which 
the Court below considered in connection with the order

Susan Tolchin, the Town Clerk, is a nominal party, whose 
interests are aligned with those of the Town Supervisor. 
For simplicity's sake, I will refer only to the Town 
Supervisor.



2

appealed from. Opposing counsel has consented to the relief 
sought. For this reason —  and because the dates for filing 
the record (June 12) and the joint appendix and Appellants' 
brief (June 19) are rapidly approaching —  I respectfully ask 
that the Court hear this motion on a shorter time schedule 
than would ordinarily be followed.

2. This appeal arises from an order of the United 
States District Court for the Southern District of New York, 
which remanded a removed proceeding to the New York State 
Supreme Court. (Annexed Exhibit 1) Part of the order below 
held that there was no basis for removal, and it is appeal- 
able as of right under a statutory provision applicable only 
to the remand of civil rights actions. See 28 U.S.C. §§
1443 and 1447(d).

Summary of the Case
3. The District Court aptly captured the essence 

of the controversy underlying the litigation:
This case, at its core, is unmistakably a product 
of the "NIMBY Syndrome" —  i.e., that syndrome_ 
triggered by proposals to locate prisons, public^ 
housing, waste facilities, and other such community 
additions usually perceived by the targeted commu­
nity as undesirable, the abiding characteristic of 
which is to ensure that the proposed facility be 
placed somewhere if it must but "Not In My Back 
Yard." The public project at issue here is the 
proposed construction of emergency housing for the 
homeless. (Exhibit 1, pp. 2-3; emphasis in origi­
nal)



3

4. Announced in early 1988, the proposed shelter 
is part of a County of Westchester/Town of Greenburgh effort 
to house homeless families with children —  overwhelmingly 
members of racial minorities. Community resistance developed 
immediately; it includes an effort to assume control of the 
development site by incorporating a new village, pursuant to 
the New York Village Law. As a leading proponent of the new 
village has said; "We'll go ahead with secession and take a 
nice piece of taxable property with us." (Annexed Exhibit 2,
1 23)

5. Before the secession could proceed, however, 
state law required the Town Supervisor to consider the 
petition to incorporate. After studying the proposed village 
map and holding a hearing, the Town Supervisor concluded that 
"[i]n the entire 30 years during which I have held elective 
office I have never seen such a blatant and calculated 
attempt to discriminate" on grounds of race. (Annexed 
Exhibit 3, p. 2) Thus, finding a racially discriminatory 
impact, as well as several other state law deficiencies in 
the petition to incorporate, the Town Supervisor rejected the 
attempt to secede.

6. Appellees thereupon filed this proceeding in 
the Westchester County Supreme Court, pursuant to Article 78 
of the New York Civil Practice Law and Rules. The Article 78 
petitioners seek to overturn the Town Supervisor's decision,



4

alleging, among other claims, that the New York Village Law 
does not authorize rejecting an incorporation effort on 
grounds of invidious discrimination.

Proceedings in the District Court
7. On November 1, 1988, an alliance of community 

blacks, homeless persons with families, the White 
Plains/Greenburgh branch of the National Association for the 
Advancement of Colored People, Inc. and the National Coali­
tion for the Homeless filed suit in the Southern District of 
New York against proponents of the secession, and the Town 
Supervisor. That action, Jones v. Deutsch, 88 Civ. 7738 
(GLG) (Exhibit 2), alleges civil rights conspiracy claims 
arising under 42 U.S.C. § 1985(3). It also seeks a declara­
tory judgment affirming the Town Supervisor's right and 
obligation to reject the incorporation petition. Upon its 
filing, the case was assigned to Judge Goettel.
The Filina and Removal of this Case

8. A few weeks after Jones was filed, the Town 
Supervisor rendered his decision. (Exhibit 3) This state 
court Article 78 proceeding followed, and the Town Supervisor 
filed a petition removing it to the Southern District of New



5

York. Upon removal, the Article 78 proceeding was assigned
2 /to Judge Goettel as a case related to Jones.— '

9. As authority for removal, the Town Supervisor
relied in part on the "refusal clause" of 28 U.S.C.
§ 1443(2), a provision applicable to civil rights actions.
In pertinent part, the statute provides that:

Any of the following civil actions . . . may be 
removed by the defendant to the district court of 
the United States for the district and division 
embracing the place wherein it is pending:

*  *  *

(2) For any act under color of authority derived 
from any law providing for equal rights, or for 
refusing to do any act on the ground that it would 
be inconsistent with such law.

The Town Supervisor also invoked federal question removal
jurisdiction under 28 U.S.C. § 1441(b), based on an Article
78 proceeding claim that he had violated the secessionists'
First Amendment rights. Section 1441(b), in relevant part,
provides that:

Any civil action of which the district courts have 
original jurisdiction founded on a claim or right 
arising under the Constitution, treaties or laws of

2/ Besides the Town Clerk of Greenburgh, hundreds of
opponents of secession are also named respondents in the 
Article 78 proceeding. Some of these respondents 
(including the plaintiffs in Jones) joined the removal 
petition below. Although not formal parties on these 
appellate proceedings, these additional removing parties 
are aligned in interest with the Town Supervisor.



6

the United States shall be removable without regard 
to the citizenship or residence of the parties.

The Remand Decision Below
10. The Article 78 petitioners did not seek to

remand. However, the District Court sua sponte directed the 
parties to address whether removal was appropriate and 
whether the Court should abstain under the doctrine of 
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 
(1941). After oral presentations and written submissions, 
the Court below issued its decision. (Exhibit 1) Remanding 
the case, in summary, the Court below: (a) rejected removal
under the refusal clause of § 1443(2); and (b) as to federal

3/question removal, invoked the Burford abstention doctrine.
11. The Town Supervisor has filed a notice of 

appeal from that part of the District Court's order rejecting 
removal under the refusal clause of § 1443(2). That appeal 
is authorized by 28 U.S.C. § 1447(d), which provides that a 
remand order in a case which "was removed pursuant to section 
1443 of this title shall be reviewable by appeal or other­
wise." The Town Supervisor also intends to file ^ petition 
for a writ of mandamus to review that part of the order below

3/ See Burford v. Sun Oil Co., 319 U.S. 315 (1943) .



7

abstaining on Burford grounds. See Corcoran v. Ardra Ins.
Co.. 842 F .2d 31 (2d Cir. 1988).

The Relief Sought On This Motion:
Supplementing the Record to Include the Jones Complaint

12. The relief sought is in the nature of house­
keeping. We ask leave to supplement the record to the extent 
of including the complaint in Jones v. Deutsch, 88 Civ. 7738 
(GLG) (Exhibit 2). That complaint was before the District 
Court since the two matters here are related. The Court 
below referred to Jones in its remand decision (Exhibit 1, 
pp. 4-5, 6 & fn. 3, 29 & fn. 11), and plainly relied in part 
on the allegations in that case for background facts that 
appear in its decision. In these circumstances, that same 
pleading should be before this Court, conveniently available, 
on the Town Supervisor's appeal.

13. To reiterate, opposing counsel does not object 
to our application, and the record must be filed by June 12, 
1989. Our appeal papers also are due by June 19, 1989. 
Accordingly, I respectfully request that our motion be 
promptly heard by the Court, and granted.

Paul Agresta

Sworn to before me this 
____ day of June 1989.

Notary Public



Exhibit 1



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

In the Matter of the Application :
of MYLES GREENBERG and FRANCES M.
MULLIGAN, :

Petitioners, : 89 Civ. 0591 (GLG)
-against- : O P I N I O N

ANTHONY F. VETERAN, et al., :
Respondents. :

A P P E A R A N C E S  :
Counsel for Petitioners:

LOVETT & GOULD
180 East Post Road *
White Plains, New York 10601 

By: Jonathan Lovett, Esq.
Of Counsel

Counsel for Respondents Anthony F. Veteran and 
Susan Tolchin:

PAUL AGRESTA, ESQ.
Town Attorney 
Town of Greenburgh 
P.O. Box 205
Elmsford, New York 10523

Counsel for Respondents Keren Developments, Inc. 
and Robert Martin Company:

CUDDY & FEDER 
90 Maple Avenue 
White Plains, New York 10601 

By: Ruth E. Roth, Esq.
Of Counsel

Counsel for Respondent Ruth E. Roth (Pro Se):
RUTH E. ROTH, ESQ.
90 Maple Avenue
White Plains, New York 10601



Counsel for Respondents Anita Jordan, April Jordan,
Latoya Jordan, Anna Ramos, Lizette Ramos, 
Vanessa Ramos, Gabriel Ramos, Thomas Myers, 
Lisa Myers, Thomas Myers, Jr., Linda Myers\ 
Shawn Myers, and National Coalition for the Homeless:

-and-
Local Counsel for Respondents Yvonne Jones, Odell A.

Jones, Melvin Dixon, Geri Bacon, Mary 
Williams, James Hodges and National 
Association for the Advancement of 
Colored People, Inc.
White Plains/Greenburgh Branch:

PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, New York 10019 

By: Jay L. Himes, Esq.
Cameron Clark, Esq.
Melinda S. Levine, Esq.
William N. Ger=»on, Esq.
Of Counsel * *

Counsel for Respondents Yvonne Jones, Odell A. Jones, 
Melvin Dixon, Geri Bacon, Mary Williams/ 
James Hodges and National Association for 
the Advancement of Colored People, Inc. 
White Plains/Greenburgh Branch:

GROVER G. HANKINS, ESQ.
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, Maryland 21215-3297 

By: Robert M. Hayes, Esq.
Virginia G. Shubert, Esq.
COALITION FOR THE HOMELESS 
105 East 22nd Street 
New York, New York 10010
Julius L. Chambers, Esq.
John Charles Boger, Esq.
Sherrilyn Ifill, Esq.
99 Hudson Street
New York, New York 10013
Andrew M. Cuomo, Esq.
12 East 33rd Street - 6th Floor 
New York, New York 10016 
Of Counsel



G O E T T E L ,  D.J.:
Federalism is a concept whose vitality is perceived by some

to be rather fluid. There are those, for example, who believe it
worthy only of lip service and that, as a general proposition, if
a matter may be brought in a court it may be brought in federal
court. To that thinking, the retort is quite simple: "federal
courts are courts of limited jurisdiction."1 Still others, while
cognizant of the notion's existence, perceive its recognition as
"seasonal" in nature, going in and out of style with the
philosophical predilections of a given administration and the
quantity and temperament of its judicial appointments. As to that
point of view, we note only that the document serving as
federalism's source is entitled to greater deference than the whims

* •

of current majoritaxian thinking.
There are those, however, who share our view that federalism 

is a neutral constant of federal jurisprudence, the necessary 
product of our dualist system. The proceeding before us is rife 
with federalist implications, and it is our recognition of and 
respect for those concerns which shapes and guides our handling of 
the matter.

New York has provided an avenue for judicial review of state 
and municipal administrative action under N.Y. Civ. Prac. L. & R. 
("NYCPLR") §§ 7801-06 (McKinney 1981 & Supp. 1989), the so-called 
Article 78 proceeding. Judicial review under these provisions

1 Owen Equip. & Erection Co. v. Kroger. 437 U.S. 365, 374
(1978) .

1



generally is limited to determining whether the official's actions 
constituted an abuse of discretion, were unsupported by sufficient 
evidence, or were contrary to existing law. id. at § 7803.
Although an Article 78 proceeding cannot be initiated in federal 
court, Chicaqo,— Rock Island & Pacific R.R. Co. v. Stude. 34 6 U.S. 
574, 581 (1954) , it is contended that such a proceeding nonetheless 
may be removed here so long as a federal question is asserted in 
the Article 78 petition —  apparently no matter how tangential or 
attenuated or if the respondents allegedly were acting pursuant 
to federal law protecting equal rights —  even if that law 
parallels similar state law mandating like action.

As will become clear, we harbor certain reservations as to 
this interest in "federalizing'; Article 78 proceedings generally 
and this proceeding in particular. Fortunately, at least in this 
case a solution presents itself. Animated chiefly by due respect 
for the principles of comity and federalism that serve as the 
essential bedrock for healthy federal-state relations, we find that 
abstention is proper in this case and, consequently, we remand the 
matter sua sponte to the court from whence it originated and
belongs (in our view) —  the New York Supreme Court for the County 
of Westchester. I.

I. BACKGROUND

This case, at its core, is unmistakably a product of the 
NIMBY Syndrome" i.e., that syndrome triggered by proposals to 

locate prisons, public housing, waste facilities, and other such

2



community additions usually perceived by the targeted community as 
undesirable, the abiding characteristic of which is to ensure that 
the proposed facility be placed somewhere if it must but "Not In 
My BackYard." The public project at issue here is the proposed 
construction of emergency housing for the homeless.

In January of last year, the Town of Greenburgh, in
conjunction with the County of Westchester, proposed to build
emergency or "transitional" housing to accommodate 108 homeless
families on land owned by the County in the Town. The proposed
developer is West H.E.L.P., Inc. ("West HELP"), a not-for-profit
corporation formed for the express purpose of constructing housing
for the homeless of Westchester County. It is generally
acknowledged that the vast majority of homeless people who would* «
gualify for residence in the West HELP project are minorities, 
specifically blacks.

In response to that announcement, a number of Greenburgh 
residents living in the area immediately surrounding or adjacent 
to the proposed site formed the Coalition of United Peoples, Inc. 
("COUP"). COUP'S purpose, de facto or otherwise, is to coordinate 
opposition to the West HELP project and, most importantly, to 
ensure that the project is not constructed in COUP'S backyard. As 
part of those efforts, COUP began a drive under N.Y. Village Law 
§§ 2-200 to 2-258 (McKinney 1973 & Supp. 1989) (the "Village Law") 
to incorporate an area encompassing the proposed West HELP project 
as a separate village to be denominated the Village of Mayfair

3



Knollwood.2 On September 14, 1988, pursuant to section 2-202 of 
the Village Law, COUP presented an incorporation petition to 
Greenburgh Town Supervisor Tony Veteran, whose responsibility it 
is in the first instance to determine whether the petition complies 
with the requirements of the Village Law. In accord with section 
2-204 of the Village Law, a public hearing on the matter was 
conducted on November 1 at which oral testimony was received. Town 
Supervisor Veteran then adjourned conclusion of the hearing until 
November 21 for the sole purpose of entertaining written comments 
on the petition.

Also on November 1, and prior to any decision by Town
Supervisor Veteran on the merits of the petition, various citizens
of the Town of Greenburgh, a nujnber of homeless people living in♦ «
Westchester County," the National Association for the Advancement 
of Colored People, and the National Coalition for the Homeless 
joined forces as plaintiffs in a federal action in this court 
against COUP, certain of its members, and Town Supervisor Veteran. 
Jones v. Deutsch. No. 88 Civ. 7738 (GLG). The complaint alleges, 
inter alia , a civil rights conspiracy amongst the named defendants 
pursuant to 42 U.S.C. § 1985, the ostensible purpose of which is 
to deprive plaintiffs of voting, housing, and emergency-shelter

Just how incorporation of the proposed village would 
obstruct construction of housing for the homeless on what is 
admittedly County-owned property is not entirely clear to us. 
Presumably, COUP believes that leaders of the newly formed village 
would be able to so bog down and delay approval of necessary zoning 
and other permits that pursuit of the project would become 
undesirable.

4



rights grounded in federal and state law. Plaintiffs also sought 
a declaratory judgment directing that Town Supervisor Veteran 
reject the allegedly discriminatory incorporation petition, 
contending that such a result would be consistent with the proper 
execution of his oath of office. The COUP defendants moved to 
dismiss that action on various grounds (among them ripeness and 
standing). The motion was adjourned sine die pending determination 
of the instant matter, which had been removed to this court during 
the interim.

Town Supervisor Veteran, apparently not in need of a federal
court order controlling his actions, issued a decision on December
1, 1988 rejecting COUP'S incorporation petition (the "December 1
Decision"). In a carefully worded opinion, six specific grounds* •

were enumerated as the bases for the decision:
(1) the proposed boundaries are not described with "common 

certainty," as required by section 2-202 of the Village Law;
(2) the proposed boundaries, where ascertainable, evidence an 

intent to discriminate and are gerrymandered to exclude black 
residents, rendering the petition violative of "rights granted by 
the federal and state constitutions";

(3) the petition was prepared for the invidious purpose of 
"preventing the construction of transitional housing for homeless 
families," rendering it violative of "rights granted by the federal 
and state constitutions";

(4) substantial petition signatures were obtained under false 
pretenses;

5



(5) substantial petition signatures are irregular; and
(6) numerous Town residents (particularly newer residents) 

are not identified as would-be inhabitants of the proposed village, 
as required by section 2—202 of the Village Law.

Under the express provision of section 2-210 of the Village
Law, review of a town supervisor's decision on an incorporation
petition may be had only through an Article 78 proceeding on
grounds that the decision "is illegal, based on insufficient
evidence, or contrary to the weight of evidence." Eleven days
after Town Supervisor Veteran issued his decision on the COUP
petition, two COUP members instituted an Article 78 proceeding in
New York Supreme Court challenging that decision. On January 30
of this year, the respondents in that proceeding filed a petition* * «
for removal in the Southern District of New York, designating the 
matter as related to the pending Deutsch action.

Urging that the December 1 Decision be reversed and the 
petition to incorporate the Village of Mayfair Knollwood be 
sustained, the Article 78 petition sets forth five specific bases 
allegedly supporting the relief requested:

(1) since section 2-206(3) of the Village Law requires that 
testimony offered at a petition hearing "must be in writing" and 
that the "burden of proof shall be on objectors," and since only 
oral testimony was taken at the November 1 hearing, Veteran's 3

3 Principally as a result of that action, an̂  amended 
complaint was filed in the Deutsch action which, inter alia, drops 
defendant Veteran as a member of the alleged civil rights
conspiracy.

6



actions were contrary to the requirements of the Village Law and 
thus illegal or, alternatively, his decision was not supported by 
sufficient evidence?

(2) since a town supervisor's authority under section 2-206 
of the Village Law to review incorporation petitions allegedly is 
strictly ministerial (i.e., limited to assessing the validity of 
only those objections related to petition requirements set forth 
by the statute), and because the statute does not provide for an 
examination of or inquiry into the petitioners' intent, Veteran's 
decision is illegal because it went beyond the scope of his 
ministerial authority or, alternatively, his perceptions of 
discriminatory intent are not supported by sufficient evidence;

(3) since under section 2-206 of the Village Law the sole* •

evidence Veteran purportedly was allowed to consider was that 
adduced at the November 1 public hearing and reduced to writing, 
his reliance on material received during the period he allowed for 
further written comment between November 1 through 21 renders his 
decision illegal or, alternatively, contrary to the weight of the 
objecting evidence received at the November 1 hearing;

(4) since no objections allegedly were filed with respect to 
the means by which petition signatures were gathered or as to the 
sufficiency of the list of regular inhabitants, Veteran's decision 
is illegal or is unsupported by sufficient evidence; and

(5) since the petitioners' opinions, motives, or intentions 
are matters allegedly protected by the First Amendment of the

7



United States Constitution, Veteran's decision violates those 
rights.4

Freely expressing our doubt as to the propriety of removal in 
this case, a conference in chambers was scheduled to discuss, inter 
alia. (i) whether, as a general proposition, Article 78 proceedings 
may be removed to federal court, (ii) if so, whether removal in 
this case is justified under either of the pertinent statutory 
provisions invoked, to be discussed infra. and (iii) whether, 
assuming the instant proceeding can be removed, principles of 
abstention dictate that we stay our hand or dismiss in deference 
to a state proceeding addressing some or all of the issues raised.

Memoranda and letters on these subjects were submitted to the 
court prior and subsequent to tĥ e. scheduled conference. Generally, 
all parties are of the belief that the Article 78 proceeding at bar 
could be and properly was removed, and only counsel for the Article 
78 petitioners expressed any concern as to possible abstention 
implications. In sum, it is readily apparent that the parties are 
content to be before this court and believe that this court is the 
proper forum in which to address the Article 78 matter; no motion 
to remand is contemplated. Notwithstanding this state of affairs, 
but consistent with the primacy of this court's obligation to 
protect its jurisdiction, the court has engaged in its own research

4 As discussed infra, we add only that it appears certain 
of the questions bearing on the legality of the procedures employed 
and whether Veteran exceeded the scope of his authority under the 
Village Law are unsettled questions of New York law (indeed, from 
what we are told by petitioners' counsel, certain of the state 
questions may be matters of first impression).

8



on the matter. See Railway Co. v. Ramsey. 89 U.S. (22 Wall.) 322,
328 (1874) (noting court's authority to remand sua sponte if 
jurisdiction is found lacking); Cutler v. Rae, 48 U.S. (7 How.) 
729, 731 (1849) (holding consent of parties does not confer federal 
jurisdiction; it remains "duty of this court to take notice of the 
want of jurisdiction, without waiting for an objection from either 
party"). Finding that, even if this proceeding properly was 
removed, we should abstain pursuant to familiar jurisprudential 
considerations, we now remand this proceeding sua sponte. See 
Corcoran v. Ardra Ins. Co.. 842 F.2d 31, 36-37 (2d Cir. 1988) 
(holding "that when the district court may properly abstain from 
adjudicating a removed case, it has the power to remand the case 
to state court"). * II.

II. DISCUSSION
The right to remove a state case to federal court is, of 

course, a unique incident to our federalist system with no 
antecedent at common law. Consequently, removal must be founded 
upon one of the statutory bases provided by Congress. Gold-Washing 
and Water Co. v. Keves. 96 U.S. 199, 201 (1877) . The instant 
petition invokes two such statutory provisions. First, the Article 
78 respondents contend that removal is warranted under the 
infrequently utilized "refusal clause" of the civil rights removal 
statute, 28 U.S.C. § 1443(2). Second, it is contended that the 
assertion of the First Amendment challenge to the December 1 
Decision presents a federal question and warrants removal under the

9



general federal removal statute, 28 U.S.C. § 1441(b). We
consider each of these provisions in turn.

a. 28 U.S.C. $ 1443(2 )

Respondents devote the lion's share of their argument to the 
propriety of removal in this case under the refusal clause of the 
civil rights removal statute. The refusal clause permits removal 
in those cases where a person acting "under color of authority" is 
"refusing to do any act on the ground that it would be inconsistent 
with [federal law providing for equal rights]." Of the precedent 
that exists construing this awkwardly worded statute, perhaps the 
two leading decisions were rendered by two of this circuit's most 
learned and respected jurists.^.

Certainly, the most complete analysis of the statute provided 
to date in any circuit is then District Judge Newman's opinion in 
Bridgeport Edu. Ass'n v. Zinner. 415 F. Supp. 715 (D. Conn. 1976), 
which sets out the criteria to be employed in a refusal clause 
analysis. Generally adopting what he termed Judge Newman's 
"exhaustive and scholarly review of the subject," now Chief Judge 
Brieant, sitting by designation and writing for the two-member 
majority in White v. Wellington. 627 F.2d 582 (2d Cir. 1980),
succinctly summarized the relevant inquiry: the refusal clause
"may be invoked when the removing defendants [state or municipal 
officials] make a colorable claim that they are being sued for not 
acting 'pursuant to a state law which, though facially neutral, 
would produce or perpetuate a racially discriminatory result as

10



applied.'" Id. at 586 (quoting Zinner. 415 F. Supp. at 722). The 
statute is exceptional in that it allows the presence of a federal 
defense to control the question of jurisdiction. Zinner. 415 F. 
Supp. at 723 n. 7 (citing Louisville & Nashville R.R. v. Mottlev. 
211 U.S. 149 (1908)).

Recognizing, we think, that the statute, if left open-ended,
could lead to the "federalization" of standard state cases
involving challenges to official state or municipal action, an
important limitation (consistent with the existing legislative
history) has been read into the law's meaning. To state a
"colorable claim" under the statute, the removal petition must
contain a good faith allegation that there exists a conflict
between the state law in issue and a federal law protecting equal* «
rights. As Chief Judge Brieant put it, the removal petition must 
allege "a colorable claim of inconsistent state/federal
requirements." Wellington. 627 F.2d at 587. See also Armeno v. 
Bridgeport Civil Serv. Comm'n. 446 F. Supp. 553, 557 (D. Conn. 
1978) (Newman, J.) (noting refusal clause permits removal when 
official "declined to observe state requirements that he believes 
are inconsistent with the obligations imposed on him by a federal 
law protecting equal rights"). The basis of the conflict 
requirement seems self-evident: without a colorable federal-state
conflict, the need to remove to federal court to ensure the proper 
vindication of superior federal mandates is not manifested. When 
federal and state interests are compatible, the state court is 
poised to assure that the defendant's parallel justification for

11



action under state law is given proper consideration. cf.
ington, 627 F.2d at 590 (Kaufman, J. , concurring) (state

officials will seek "extraordinary" option of removal under the 
refusal clause and forego the familiar confines of a state forum 
"because the federal issue they seek to litigate is so 
substantial").

Indeed, Judge Meskill, dissenting in Wellington, characterized
the colorable conflict requirement as the "jurisdictional
touchstone" under the refusal clause. Wellington, 627 F.2d at 592.
The Wellington majority concurred with that assessment:

We agree fully with Judge Meskill's 
description of the "jurisdictional touchstone" 
as "a colorable conflict between state and 
federal law" leading to the removing 
defendant's refusal .to follow plaintiff's 
interpretation of st&te law because of a good 
faith belief that to do so would violate 
federal law. That good faith belief is tested 
objectively, in that the claim to that effect 
of the removing defendant must be "colorable."

Id- at 586-87. Where the majority and dissent parted ways was on
what would constitute a "colorable conflict." In that case, the
defendants had phrased their removal petition in the alternative;
i.e., they contended that they had not violated the applicable
state statute or, if it were found that they had, then they actedl
as they did for to do otherwise would have been inconsistent with 
the requirements of federal law protecting equal rights. Judge 
Meskill felt that alternative allegations of this nature did not 
justify removal under the exceptional provisions of the refusal 
clause. Id. at 591. The majority, however, found "no reason why

12



a removal petition cannot contain inconsistent allegations in the 
nature, here, of a traditional plea of confession and avoidance 
without confession," so long as the petition contains "a colorable 
claim of inconsistent state/federal requirements." id. at 587. 
Put differently, the contrary nature of state law need not be a 
matter definitively resolved, so long as the defendant 
alternatively can assert in good faith a colorable claim of 
conflict with federal law. Id^ at 590 (Kaufman, J., concurring).

Guided by these holdings, we find that a colorable conflict 
between federal and state law is neither asserted in the instant 
petition nor can such a conflict in good faith be found to exist.

As outlined supra. Town Supervisor Veteran denied the 
incorporation petition on six enumerated grounds. Only grounds (2) 
and (3) implicate federal concerns relating to equal rights; the 
remaining grounds for denial are largely ministerial in nature, 
based entirely on the filing requirements of New York's Village 
Law. Grounds (2) and (3), however, each conclude that even though 
the Village Law "does not specifically address itself to the 
'intent' of the petitioners, I firmly believe that the rights 
granted by the federal and state constitutions transcend the 
procedural technicalities set forth in the Village Law." December 
1 Decision 5 2, at 4; id. 3, at 6. The referenced constitutional 
protections are not identified in either the December 1 Decision 
or the removal petition, but it seems plain that the allusions are

13



to the Fourteenth Amendment's command of equal protection.5 Thus, 
respondents conclude, the Village Law, though neutral on its face, 
would produce a discriminatory result if applied in ignorance of 
federal constitutional proscriptions, and therein rests the

Citing only Gomillion v. Liahtfoot. 364 U.S. 339 (1960), 
respondents' memorandum notes simply that "Supervisor Veteran 
relied on  ̂ federal constitutional protections against race 
discrimination . . . [and] [t]here can be no genuine doubt that 
these provisions are laws 'providing for equal civil rights.'" 
Respondents' Conference Memorandum at 9. See also Town of 
Greenburgh's Memorandum at 4 (same). Gomillion struck down a 
gerrymandered plan redefining the boundaries of the City of 
Tuskegee, Alabama as violative of the Fifteenth Amendment. That 
amendment provides that the right of citizens to vote shall not be 
denied on account of race or color. Justice Whittaker, noting that 
"the Gomillion plaintiffs were not being denied their right to vote 
"in the Fifteenth Amendment sense" (i.e., they could still vote, 
albeit not within the newly defined city limits), concurred in the 
decision but on grounds that the "fencing out" of black citizens 
"is an unlawful segregation of* races of citizens, in violation of 
the Equal Protection Clause of the Fourteenth Amendment . . . ."
Id̂ . at 349. Although of no moment, we think Justice Whittaker 
makes a cogent point. More importantly, however, it has been 
suggested that the Supreme Court has come ultimately to embrace 
Justice Whittaker's analysis. See Karcher v. Daggett. 462 U.S. 
725, 748 (1983) (Stevens, J., concurring) (noting "the Court has
subsequently treated Gomillion as though it had been decided on 
equal protection grounds") (citing Whitcomb v.Chavis. 403 U.S. 124, 
149 (1971)). Accord City of Mobile v. Bolden. 446 U.S. 55, 86-87 
& n .7 (1980) (Stevens, J., concurring). We will not belabor the 
reader with citation to a number of Court cases, both majority and 
concurring opinions, which have cited Gomillion in the Fourteenth 
Amendment context. Suffice it to say that gerrymandering by race, 
although a Fifteenth Amendment violation under Gomillion. certainly 
falls within the reach of the Equal Protection Clause as well. 
That additional support could be especially pertinent here since 
those who would be excluded from the allegedly gerrymandered 
boundaries of the Village of Mayfair Knollwood would not, unlike 
the plaintiffs in Gomillion. be deprived of their pre-existing 
right to vote (here, in the Town of Greenburgh) . See especially 
Caserta v. V illage of Dickinson. 491 F. Supp. 500, 506 n.14 (S.D. 
'̂’eX- _ 1980) (distinguishing Gomillion since excluded plaintiffs 
retained their pre-existing right to vote; "[t]hose not within the 

°f Dickinson boundaries have merely maintained their status 
quo as members of Galveston County"), aff'd in relevant part. 672 
F.2d 431, 432-33 (5th Cir. 1982).

14



colorable conflict. Respondents' Conference Memorandum at 8-9. 
Whether or not this is so, however, we believe respondents' 
argument misses a crucial point.

Wellington repeatedly references and requires a conflict 
between federal and "state law," not a state law or statute. The 
corpus of pertinent "state law" under Wellington, it seems to us, 
must necessarily include state constitutional law, for it is a 
fundamental maxim of any constitutional society, as New York is, 
that constitutional mandates govern and delimit legislative and 
regulatory enactments of the majority. Thus, at least one New York 
court has noted that incorporation petitions, even if in compliance 
with the ministerial requirements of the Village Law, will not be 
sustained if their end is that^of advancing facial discrimination. 
In re Rose, 61 Misc.2d 377, 305 N.Y.S.2d 721, 723 (Sup. Ct. 1969), 
aff'd mem. , 36 A.D.2d 1025, 322 N.Y.S.2d 1000 (2d Dep' t 1981) .6 
Although state law in such a case may be found by resort to the 
State Constitution, as opposed to the Village Law, it is "state 
law" nonetheless which forbids the invidious result.

As is made plain by the December 1 Decision, Town Supervisor 
Veteran relied on both the Federal and State Constitutions in 
rejecting the petition. No conflict between the pertinent federal 
and state constitutional provisions was perceived by Supervisor 
Veteran; he acted at the command of both. See especially

Whether a town supervisor, as opposed to the courts, has 
authority to make that determination was not discussed in Rose and 
is not addressed here.

15



Wellington. 627 F.2d at 587 (central inquiry is whether official 
subjectively believed an actual conflict between federal and state 
law existed); id. at 590 (Kaufman, J., concurring) (same). Nor is 
any such conflict to be found by reference to existing state law; 
federal and New York constitutional law governing equal protection 
are in harmony. See Seaman v. Fedourich. 16 N.Y.2d 94, 262
N.Y.S.2d 444, 450 (1965) (noting New York's equal protection
clause, embodied in N.Y. Const, art. 1, § 11, "is as broad in its 
coverage as that of the Fourteenth Amendment"); Dorsey v. 
Stuyvesant Town Corp.. 299 N.Y. 512, 530 (1949) (holding protection 
afforded by New York's equal protection clause is coextensive with 
that granted by Fourteenth Amendment), cert, denied. 339 U.S. 981 
(1950).' 7 * «

The case at bar, therefore, is readily distinguishable from
Cavanagh v. Brock. 577 F. Supp. 176 (E.D.N.C. 1983) (three-judge
panel) , a case cited by respondents. Removal in that case was 
permitted under the refusal clause because the removing defendants 
argued that the relevant provisions of the North Carolina 
Constitution. which were alleged to be in conflict with the 
Fourteenth Amendment, either had been rescinded or, if in effect, 
could not be complied with due to the contrary dictates of the 
Federal Constitution. Id. at 179-80. Here, the Equal Protection 
Clause will embrace whatever discrimination allegedly would have 
occurred, supra note 5, and Seaman and Dorsey make plain that the 
corollary state constitutional provision is at least as broad as 
its federal counterpart. Thus, if Town Supervisor Veteran was

16



required by the Equal Protection Clause of the Fourteenth Amendment 
to act as he did, he similarly would be required to so act by the 
equal protection clause of the New York Constitution since the 
latter is to be read in pari materia with its federal relation.

Certainly, notwithstanding Supervisor Veteran's belief that
he was complying with state constitutional law, respondents'
ability to remove this case under the refusal clause is not lost
if the removal petition contains an allegation based on that
belief. Such is the teaching of Wellington. Respondents, however,
must in good faith be able to plead alternatively that if they were
not acting in accordance with state law, then their refusal to so
act was the product of conflict between federal and state mandates.
Wellington, 627 F.2d at 587. Ng such good faith assertion can be♦ «
made here. Federal and state law are coextensive in this area. 
See also Fed. R. Civ. P. 11 (requiring that any "pleading, motion, 
or other paper" submitted to the court and signed by an attorney 
be grounded in good faith belief that its substance is warranted 
by facts, law, or good faith argument for the law's modification).

The jurisdictional paragraph of the removal petition 
acknowledges this reality. See Verified Petition for Removal f 1 1 , 
at 4-5 ("proposed village petition was rejected in part on the 
basis of federal and state Constitutional and statutory provisions 
providing for equal rights . . . [and,] [accordingly, this action 
may be removed to this Court by respondents pursuant to 28 U.S.C.
§ 1443(2)") (emphasis added). The petition's conclusion, however, 
does not state the law. If it did, then in every case challenging

17



state or municipal action relying on federal authority parallelling 
cited state law, the case could be removed to federal court. This 
is not the conundrum contemplated by the refusal clause; indeed, 
it is no conundrum at all. Federal and state law must not merely 
parallel one another; they must be in conflict (or, more 
accurately, there must be a good faith allegation of conflict). 
See especially In re Quirk, 549 F. Supp. 1236, 1241 (S.D.N.Y. 1982) 
(refusal clause satisfied since colorable conflict existed between 
federal court order and New York civil service law); In re Buffalo 
Teachers— Fed 1 n , 477 F. Supp. 691, 694 (W.D.N.Y. 1979) (removal
under refusal clause appropriate since "state defendant caught 
between the conflicting requirements of a Federal [court] order and 
of state law"); Zinner, 415 F.^Supp. at 718 {noting refusal clause 
"'intended to enable state officers, who shall refuse to enforce 
state laws discriminating in reference to [civil rights] on account 
of race or color, to remove these cases to the United States courts 
when prosecuted for refusing to enforce those laws'") (quoting 
Cong. Globe, 39th Cong., 1st Sess. 1115 (1863) (statement of Rep. 
Wilson)). Contrasted with those scenarios, respondents here are 
being prosecuted for having acted as they saw fit under the State's 
equal protection clause, not for having failed to do so, and that 
provision tracks its federal namesake.

Consequently, we find that there is no colorable conflict 
between federal and state law in this case, and that removal, if

18



justified here, must be found for reasons other than those provided 
under the refusal clause.7

b. 28 U.S.C. 5 1441f
Under 28 U.S.C. § 1441(b), »[a]ny civil action of which the 

district courts have original jurisdiction founded on a claim or 
right arising under the Constitution, treaties or laws of the 
United States shall be removable without regard to the citizenship 
or residence of the parties." Clearly, the assertion of the First 
Amendment claim in the petition presents a federal question. We 
are not so sure, however, that an Article 78 proceeding 
automatically qualifies as a "civil action" under the removal 
statute. ** «

The term "civil action" (or the predecessor term "civil suit")
has been capaciously defined. Thus, the Supreme Court has opined
that appeals from state or municipal administrative action via writ
of prohibition or mandamus may qualify for removal:

The principle to be deduced from [our] cases 
is, that a proceeding, not in a court of 
justice, but carried on by executive officers 
in the exercise of their proper functions, as

Our decision on the refusal clause might appear 
gratuitous in light of our holding infra that, even if this case 
was properly removed, principles of abstention warrant a remand. 
Our ruling on the abstention/remand, however, might be different 
were we to find that the case could be removed under the refusal 
clause. Congress's explicit determination that state officials 
facing the type of federal-state conflict outlined above should be 

the option of a Federal forum would inevitably color an 
abstention analysis. Respect for the state interests outlined 
infra might very well have to give way in such a circumstance to 
the overarching federal concern. Federalism (and respect for it) 
does, after all, have a federal as well as state component.

19



i-1} the valuation of property for the just 
distribution of taxes or assessments, is 
purely administrative in its character, and 
cannot, in any just sense, be called a suit; 
and that an appeal in such a case, to a board 
of assessors or commissioners having no 
judicial powers, and only authorized to 
determine questions of quantity, proportion 
and value, is not a suit; but that such an 
appeal may become a suit, if made to a court 
or tribunal having power to determine 
questions of law and fact, either with or 
without a jury, and there are parties litigant 
to contest the case on the one side and the other.

Upshur County v.__Rich, 135 U.S. 467, 475 (1890). Accord
Commissioners_of Road Improvement Dist. No. 2 v. St. Louis S.W.
Ry_:— COi, 257 U.S. 547, 557, 559 (1922) . Cf. Weston v. City Council 
.of— £-har~leston/ 27 U.S. (2 Pet.) 449, 464 (1829) (the term "civil
suif/" in defining Supreme Court's appellate jurisdiction over 
state cases, is a comprehensive one including various modes of 
proceeding; so long as an adversary proceeding inter partes. it 
qualifies as a "civil suit").

That said, it is beyond cavil that a statutory appeal of 
administrative state action, whether or not it involves diverse 
parties or a federal question, may not be filed in federal court. 
Department of Transp . and Dev, of Louisiana v. Beaird-Poulan. Inc.. 
449 U.S. 971, 973-74 (1980) (Rhenquist, J., dissenting from denial 
of certiorari) (citing Stude, 346 U.S. at 581). Following from 
that principle, we doubt that Congress intended the term "civil 
action" under the removal statute to be so sponge-like as to allow 
its absorption of every conceivable type of proceeding involving 
appeal from state or municipal administrative action which touches

20



upon a federal question. To believe otherwise is to suggest that 
Congress was ignorant of notions of comity and federalism that are 
such an important part of our constitutional and jurisprudential 
fabric. Cf. St. Louis S.W. Rv.. 257 U.S. at 554 ("[a]n
administrative proceeding transferred to a court usually becomes 
judicial, although not necessarily so") (emphasis added).8

In New York, an Article 78 proceeding, although admittedly
civil in nature, is manifestly circumscribed by the terms of the
statute, and it possesses numerous indicia distinguishing it from
a typical inter partes civil action. It is a self-styled "special
proceeding," NYCPLR § 7804(a), designed to supplant the previous
writs of certiorari, mandamus, and prohibition, id. at § 7801.
Consequently, and consistent with the predecessor writs, the scope♦ •

of review in an Article 78 proceeding is narrowly confined, id. at 
§ 7803, and the relief recoverable is limited, id. at § 7806. A 
number of other substantive and procedural irregularities are 
unique to this form of proceeding. See especially NYCPLR § 103 
(expressly noting distinction between "civil action" and "special

Indeed, the proper application in the modern context of 
19th-Century Court precedent defining "civil action" is a matter 
not free from doubt. Those Courts could not possibly have 
envisioned the rise of populism, the demise of economic due 
process, and ultimately the advent of the New Deal, all of which 
radically changed economic life and governance in this society. 
Mirroring the federal model produced by the New Deal, a multitude 
of administrative agencies now permeate the ranks of state 
decisionmaking. In that context, we think it a legitimate question 
to wonder whether the Supreme Court and/or the Congress believe it 
appropriate to define expansively the term "civil action" so as to 
allow the universal removal of garden-variety appeals from state 
administrative action.

21



proceeding," and vesting courts with authority to convert a special 
proceeding into a civil action if nature of claim or relief sought 
goes beyond confines of the former); j. Weinstein, H. Korn, & a . 
Mlller' ~  York Civil Practice §§ 7801-06 (1988 & Supp. Dec. 1988) 
(discussing nature of Article 78 proceeding); D. Siegel, Handbook 
on. New York Civil Practice §§ 557-70 (1978 & Supp. 1988) (same).9

Given the unique nature of the action, the fingerprints of
federalism inevitably will be so spread upon an Article 78
proceeding that we doubt the proceeding ordinarily can be wiped
clean of its essential state administrative character by the mere
presence of a federal question, no matter how insignificant, and
be rendered removable thereby. Therefore, to permit generally the
removal of Article 78 proceedings under 28 U.S.C. § 1441 is, we* «
think, to invite disruption with well-settled notions of comity 
and federalism. See, e ^ ,  Crivello y. Board of Adjustment i83 
F. Supp. 826, 828 (D.N.J. i960) (holding appeal of state 
administrative action via writ of certiorari, although nominally 
denominated a "civil action at law," did not constitute a "civil 
action" as that term is used under the general removal statute); 
Collins v. Public Serv. Com m 'n of Missourir 129 F. Supp. 722, 725

9
4- ^hus' for example, an Article 78 proceeding is f a r

Libfrt^MutifaT x hG ^dministrative "appeal" at issue in Horton~v. 
th^t a ’ U,S- 348 (1961)- The Court there heldworker's a Texas administrative determination on a
"civil Ltfon" o C°Uld bS filed in Federal court as anrovtde! ? on grounds of diversity, but only because Texas law
?i?t ?! ^ t  * ?USh 9 challen9e "is not an appellate proceeding[;]
been decide? hv t I D S t S  ~ l l y  with°dt reference to Shat may hav!«d f d\d b-Y thS [Texas Industrial Accident] Board." id. at 354-55 (emphasis added) .

22



(W.D. Mo. 1955) (finding appeal of state administrative action by 
writ of certiorari to county court "was a mere continuation of the 
administrative proceeding" and, thus, could not be removed). But 

— t y  of Owatonna v. Chicago. Rock Island & Pacific r .r . co. 
298 F. Supp. 919, 922 (D. Minn. 1969) (and cases cited therein).10

Despite our misgivings, we assume for present purposes that 
an Article 78 proceeding may be removed under the general removal 
statute, for our concerns and respect for federalism can be 
accommodated in this case by the law of this circuit relating to

10
Our conclusion would by necessity be different when

ctlZi1o?f2fnu T j Cl1 ™ ? ^ eedi ng iS s°^htyunder the^refuSl?5 28 u -s *c : § 1443(2), the civil rights removal statute discussed supra. Since an Article 78 proceeding is the prescribed 
avenue of challenge to administrative action in this State such
a proceeding must be removable under the refusal clause if that clause is to be given effect in New York. clause if that
ArHrlp ™ 1S°' theJ e may be times when the federal interest in an Article 78 proceeding may so predominate as to warrant the 
proceeding s removal under 28 U.S.C. § 1441. Thus, in a series Sf 
cases involving appeals to state courts from tobacco quotas imposed
rLoval ufdi"1S?HratiVe reV1leW federal coSts p e S ? “ dremoval under the general removal statute. In those cases
however, the local committees were authorised by federal iSJand
AaJt^m temberS aPPointed bY the United States Secretary of
th e  ' manifest;Ln9 the obvious federal interest in regulating
(E D ^ C  — yis y- Joyner, 240 F. Supp. 689, 690-91
c l ™  V ,cases Clted therein)* Cf, Yonkers Racinggprp. v. city of Yonkers, 858 F.2d 855, 863-64 (2d Cir. 1988?
ifiswi?9 r®moval authorized under All Writs Act, 28 U.S.C. § )/ where real possibility that underlying Article 78
cou??eoirt9 C°Uld be. used to frustrate implementation of federal
cert dentp/e^ 9Hec to remedy racial discrimination in Yonkers) , £ert •— denied, 57 U.S.L.W. 3619 (1989). '

Absent special circumstances, however, we remain dubious 
Articl 7s *l s d o m °f a general rule permitting the removal of 
h ™  k 78 proceedlngs - Although several Article 78 proceedings have boen removed to courts in this circuit, this specific question
abil?tve^  beSn addressed* Obviously, it could be argued that the
assirapH SUCh Proceedings heretofore simply has beenassumecJ without the need for extended discussion. We are not sosUic •

23



our remand authority. The Supreme Court has held that removed 
actions generally may not be remanded except within the narrow 
confines of the remand statute, 28 U.S.C. § 1447(c) (i.e., that the 
case was removed improvidently or without jurisdiction). Thermtron 
Prod., Inc, v. Hermansdorfer. 423 U.S. 336, 345 & n. 9 (1976). The 
Second Circuit, however, has found a practical exception to that 
rule, concluding "that when the district court may properly abstain 
from adjudicating a removed case, it has the power to remand the 
case to state court." Corcoran v. Ardra Ins. Co.. 842 F.2d 31, 36- 
37 (2d Cir. 1988). Accord Naylor v. Case and McGrath. Inc.. 585 
F.2d 557, 565 (2d Cir. 1978). The exception, among other things, 
is grounded in the reality that no purpose would be served by 
retaining a removed case and then dismissing it on abstention 
grounds, if applicable, rather than simply remanding the matter to 
the appropriate state forum. Because the fingerprints of 
federalism referenced earlier are so clearly discernible here, we 
find abstention to be appropriate and we thus remand the matter in 
accord with the remand exception outlined in Ardra Insurance.

c. Abstention
Jurisprudential limitations on our jurisdiction long ago»

announced in Burford v. Sun Oil Co.. 319 U.S. 315 (1943) largely 
control our view of this matter.

Burford, of course, involved a challenge to the validity of 
state administrative action permitting the drilling of certain 
wells in an east Texas oil field. The legal challenge was

24



initiated in federal court on grounds of diversity and federal 
question (due process) ; the case at bar was removed to federal 
court on the latter basis. In granting dismissal of the Burford
challenge in the exercise of its equity jurisdiction, the Court 
noted:

Although a federal equity court does have 
jurisdiction of a particular proceeding, it 
may, in its sound discretion, whether its 
jurisdiction is invoked on ground of diversity 
of citizenship or otherwise, "refuse to 
enforce or protect legal rights, the exercise 
of which may be prejudicial to the public 
interest" fUnited States ex rel. Greathouse v.
Dern, 289 U.S. 352, 360 (1933)]; for it "is in 
the public interest that federal courts of 
equity should exercise their discretionary 
power with proper regard for the rightful 
independence of state governments in carrying 
out their domestic policy." [Pennsylvania v.
Williams. 294 U.S. 176, 185 (1935).]» «

Burford, 319 U.S. at 317—18 (footnotes omitted). Those concerns 
were found to be present in Burford. which involved important state 
interests (the division of oil-drilling rights) that were the 
subject of comprehensive state regulation.

The Second Circuit has distilled the principles underlying 
Burford thusly:

[Burford] abstention is appropriate when a 
federal case presents a difficult issue of 
state law, the resolution of which will have 
a significant impact on important state 
policies and for which the state has provided 
a comprehensive regulatory system with 
channels for review by state courts or 
agencies. fBurford. 319 U.S.] at 333-34, 63
S. Ct. at 1107-08. In short, federal courts 
should "abstain from interfering with 
specialized, ongoing state regulatory schemes."

25



Alliance of American Insurers v. Cuomo. 854 F.2d 591, 599 (2d Cir.
1988) (quoting Levy v. Lewis. 635 U.S. 960, 963 (2d Cir. 1980)).

In the case at bar, petitioners seek the incorporation of the
Village of Mayfair Knollwood, which requires a grant of state
authority. N.Y. Const, art. 10, § 1; Village Law § 2-200; 1 E.
McQuillen, The Law of Municipal Corporations §§ 1.19 & 2.07b (3d
ed. 1987) ("McQuillen"). As Town Supervisor Veteran alluded to in
his December 1 Decision, the legal concept of village incorporation
was created to allow residents of a particular area the opportunity
to band together for the purposes of securing fire and police
protection and other public services, such as water and sewer.
December 1 Decision f 2, at 3-4. Given these uniquely local
interests, and particularly in an age of increasingly scarce

* •
resources (both natural and fiscal), it would seem beyond 
peradventure that the State of New York retains as profound an 
interest in certifying village incorporation petitions as does the 
State of Texas in certifying oil-drilling licenses. See especially 
Gomillion. 364 U.S. at 342 (recognizing "the breadth and
importance" of a State's power "to establish, destroy, or 
reorganize by contraction or expansion its political subdivisions, 
to wit, cities, counties, and other local units"); Hunter v. City 
of Pittsburgh. 207 U.S. 161, 176, 178-79 (1907) (noting creation
of municipal incorporations and definition of their size and nature 
are matters peculiarly within jurisdiction of the States). Accord 
1 McQuillen § 3.02, at 235; 2 McQuillen at §§ 4.03 & 7.03; C. 
Rhyne, Municipal Law §§ 2-2 & 2-26 (1957). Thus, that as a general

26



proposition federal courts should not be muddying the waters in 
which the village incorporation process swims seems to us an 
unremarkable and inevitable conclusion.

Further, and acting partly as confirmation of the above state 
interest, New York has established a "comprehensive regulatory 
system with channels for review by state courts or agencies," 
American— Insurers, 854 F.2d at 599, to assess the propriety of
village incorporation petitions:

the statute specifically identifies what geographic areas may
be incorporated as a village, section 2-200 of the VillageLaw; ^

it spells out in elaborate detail who may petition for 
incorporation and what the contents of the petition must comprise, section 2-202;
it establishes a public notice and hearing requirement once 
f is filed with, -a town supervisor, again setting 
forth in greatuietail the hearing requirements, section 2-204;
it specifically^ notes what objections may be lodged against 
^ village petition, and how and when these objections should be presented, section 2-206;
it sets forth a specific timetable for action on the petition 
following hearing, and outlines the prerequisites for the 
written decision that the town supervisor must issue on the matter, section 2-208;
^  specifically provides that review of a town supervisor's 
decision may be had only by resort to an Article 78 proceeding 
on grounds that the "decision is illegal, based on 
insufficient evidence, or contrary to the weight of the evidence," section 2-210(1);
it requires that appeal via the Article 78 route must be taken 
within 30 days from filing of the town supervisor's decision, 
section 2-210(2), and that such appeal shall have preference 
over all civil actions and proceedings, section 2-210(4) (e);
it goes on to delineate the right to and procedures for 
conducting^ an election to determine the question of 
incorporation, sections 2-212 to 2-222;

27



it sets forth the procedure for judicial review of an 
incorporation election, and provides for a new election if the 
original election is set aside, sections 2-224 to 2-230; and finally, '
it outlines the formalities of incorporating, the procedures 
for electing and appointing officers, the conduct of village 
meetings, the effect on public services, and the taxing 
authority possessed by the village, sections 2-232 to 2-258.

this does not constitute a comprehensive statutory scheme,
regulating in this case a matter within the fundamental
prerogatives of the state, then the court would be hard pressed to
identify such a scheme. Certainly, the scheme is as comprehensive
and the interest as strong as those existing in Levy, where the
Second Circuit directed abstention due to New York's "complex
administrative and judicial system for regulating and liquidating
domestic insurance companies." Levy. 635 F.2d at 963. To* «
paraphrase Burford, we think the regulation of village
incorporations so obviously involves a matter of uniquely state 
policy that wise judicial discretion counsels in favor of avoiding 
needless federal intervention in the state's affairs, especially 
since a comprehensive regulatory scheme to address this matter has 
been put in place. Burford. 319 U.S. at 332.

That this proceeding also implicates a federal question does 
not alter our conclusion. Burford. too, involved a federal 
question but, as the Supreme Court noted, ultimate review of that 
question before the Court was preserved fully by their action, id. 
at 334- Accord Levy. 635 F.2d at 964.

Moreover, the federal question here asserted may never need 
be reached. Four of the five challenges to the December 1 Decision

28



asserted in the Article 78 petition (claims (l)-(4), delineated
supra) involve challenges to the propriety of Veteran's actions
under the Village Law.11 Petitioners' counsel has represented that
certain of these questions —  particularly those involving the
nature of the local hearing to be held on these matters, how and
what evidence can be received and relied upon, and the scope of the
town supervisor's statutory authority —  appear to be matters of
unsettled state law. We have found little case law specifically
^dd^sssing the state issues here raised. If the December 1
Decision is reversed on any of these grounds, the First Amendment
assertion will not be reached. When unsettled questions of state
law are susceptible of an interpretation which may obviate the
federal constitutional question presented, the federal Court should

* «
defer on these questions —  at least in the first instance —  to 
a state tribunal. Orozco v. Sobol. 703 F. Supp. 1113, 1121
(S.D.N.Y. 1989) (cases collected, including Railroad Comm'n of
Texas v. Pullman, 312 U.S. 496 (1941)). See also L e w . 635 F.2d 
at 964 (since federal question was bound with state issues, best 
left in the first instance to state courts with review available *

We add that the existence of these purely state 
administrative issues places this case in a posture far different 
from that found in Gomillion and cases like it, which constitute 
straight constitutional challenges to gerrymandered municipal 
boundary plans devised upon conclusion of the legislative or 
administrative drafting processes. Had the instant incorporation 
petition been approved under the Village Law, and the Deutsch 
defendants (assuming they had standing) then challenged that action 
in federal court on Fourteenth Amendment grounds, we have little 
doubt that we properly would have jurisdiction over the subject 
matter and that plaintiffs' choice of a federal forum would be 
respected. That is not the posture of this case.

29



These concerns militate
further in support of abstention.12

As Levy concludes, in words equally applicable here:
The claims [in Burford] amounted to an attack 

. ^he reasonableness of the state 
administrative action. Thus federal review 
while involving decision of a federal 
question, would have entailed a 
reconsideration of the state administrative 
decision, carrying with it the potential for 
creating inequities in the administration of 
the state scheme. Burford thus suggests that
p^2pe^ resPect for the expertise of state officials and the expeditious and evenhanded

ultimately before the Supreme Court).

"rb*? s P  ̂  uhoatKh?/h sss-cSk:
s o o t h e  “ nsion^iS^rent P/ranel judicia! processes. ■

this case Is ^ 26 n '9 <M 8 7 > • Thus, althoughexistence of 9 largely -Burford considerations, theexistence of Pullman concerns certainly is relevant
Notwithstanding Pennzoil's footnote 9, however, there do exist 
important procedural differences between the "various types of 

Pjrtinent here, we note that the product of Burfo?d abstention is dismissal, while under Pullman fod^r-ai ~
issues nay be bifurcated, with the — federal court retain!^
ifrl«turai£a OVtor thatf°?"er anr the liti,3ants allowed the option - . , eturning to that forum to address the federal con ce rn s
following state review. Enqland v. Louisiana state Bd. of Medical
Examiners, 375 U.S. 411, 421-22 (1964).---ait see Harris S !
ggmm rs Court v. Moore, 420 U.S. 77, 88 & n.14 (19751 (dismissal
state- courtCiurisd?ot^rifte H  necessarV to remove obstacles to federal and iL-*.1 diCtl°n) .* ItT makes no sense to bifurcate the ?nd ?tate issues in this case, especially since to do so
for como^ettla11/  frustrate the Village Law's scheme of providing FnJth^nPl t aild exPe.dlti°us review of incorporation petitions9
210 M W b )  of Sthe ev niWalth Tthe *arvice requirements of section 2- ■7Q i, Village Law, the costs of bringing a new Article
(gi^e^th^nuiiler^?633 State issues ”°uld be substantial"lolutiM" ine^i taSf Parctles evolved) , arguably rendering that instant nrnpo bl Since Burford concerns predominate in the
remand th^ e n ? ? ^ 9 ' ? ?  Ch°OSe to keep the proceeding whole and 
in both Burford anH T 6r to state court which, as was emphasized Fir-gt ~ rfo^d .and bevy, is entirely competent to address the First Amendment issue asserted here (if it need be reached).

30



administration of state programs counsels 
restraint on the part of federal courts.

Levy, 635 F.2d at 964. Here, Article 78 review under the Village 
Law is designed to provide the aggrieved party with the opportunity 
for expedited and confined judicial review of state administrative 
action. That review is, in essence, largely an extension of the 
administrative process itself given the reviewing court's limited 
scope and remedial authority, and it is that forum which should be 
deciding the state issues which predominate in this matter. If 
federal questions are implicated in that process and improperly are 
decided, ultimate review before the Supreme Court is preserved. 
Abstention, therefore, is warranted here.

Assuming the general removability of Article 78 proceedings, 
the instant matter involves a federal question and may be removed 
pursuant to 28 U.S.C. § 1441(b). Consistent with Ardra Insurance, 
however, and because we would abstain from deciding the issues here 
presented under familiar jurisprudential considerations, the 
instant proceeding is remanded to the court from whence it was 
removed, the New York Supreme Court for Westchester County.

Cor»clusion

SO ORDERED
Dated: White Plains, N.Y

April /o , 1989April f*i

GERARD L. GOETTEL 
U.S.D.J.

31



Exhibit 2



UNITED STATES DISTRICT 
SOUTHERN DISTRICT OF NEW YORK m m

YVONNE JONES, ANITA JORDAN, APRIL 
JORDAN, LATOYA JORDAN, ANNA RAMOS, 
LIZETTE RAMOS, VANESSA RAMOS, 
GABRIEL RAMOS, THOMAS MYERS,
LISA MYERS, THOMAS MYERS, JR., 
LINDA MYERS, SHAWN MYERS,
ODELL A. JONES, MELVIN DIXON,
GERI BACON, MARY WILLIAMS,
JAMES HODGES, NATIONAL ASSOCIATION 
FOR THE ADVANCEMENT OF COLORED 
PEOPLE, INC., WHITE PLAINS/ 
GREENBURGH BRANCH, AND NATIONAL 
COALITION FOR THE HOMELESS,

88 n vVi I • "( i a  C ?

Plaintiffs,
-against-

LAURENCE DEUTSCH, COLIN EDWIN 
KAUFMAN, STEVEN NEIL GOLDRICH,t 
MICHAEL JAMES TONE, COALITION*OF 
UNITED PEOFLES, INC., and 
ANTHONY F. VETERAN, as Supervisor 
of the Town of Greenburgh,

Defendants.

1 |« .
U
it*--

NOV 1 t993 1

- - -1'- C-, £ P i
■svl

88 Civ.

COMPLAINT

Plaintiffs, by their attorneys, for their con- 
plaint, allege (on information and belief except as to 
paragraphs 3-5, 8, and 39-50):

Nature of the Action and Background
1. This action is brought by a number of black 

citizens of Greenburgh, parents of homeless families in



Westchester County, the National Association for the Advance­
ment of Colored People, White Plains/Greenburgh Branch 
("NAACP") and the National Coalition for the Homeless (the 
"National Coalition") to obtain redress against a racially 
motivated conspiracy formed by the defendants other than 
Anthony Veteran (hereinafter the "Conspiring Defendants") for 
the purpose of depriving racial minorities and homeless 
persons of constitutional and statutory rights. The 
Conspiring Defendants are residents of Westchester County who 
have banded together to seek incorporation of a new, almost 
totally segregated village. Their declared purpose is to
defeat a project to build housing for homeless families, most* «
of whom belong td racial minorities, by using the new 
village's zoning power. In furtherance of this scheme, they 
have drawn the village boundaries in a grotesque shape, 
thereby attempting to ensure its all-white composition and to 
guarantee attaining their racially exclusionary objective. 
Defendants' conduct constitutes a conspiracy in violation of 
42 U.S.C. § 1985 that should be declared unlawful, enjoined, 
and remedied, as against the Conspiring Defendants but not 
defendant Veteran, by an appropriate award of monetary 
damages.

2. This conspiracy is a direct attack on a 
coordinated effort by state, county and municipal government 
-- aided by a non-profit, charitable organization —  to

2



establish safe and decent temporary housing for homeless 
families with children in Westchester County. Westchester 
County currently shelters approximately 957 families with 
1978 children in a number of sub-standard facilities includ­
ing motels in New York City and certain Hudson Valley coun­
ties. Homeless persons, particularly children, are irrevoca­
bly damaged by living conditions in those motels.
Westchester County is suffering from an unprecedented housing 
crisis with a higher proportion of homeless families to its 
population than even New York City.

Jurisdiction
3. This Court has jurisdiction pursuant to 28 

U.s.c. §§ 1331, 1337, and 1343. This action arises under the 
Fourteenth and Fifteenth Amendments to the Constitution of 
the United States, the Voting Rights Act, 42 U.S.C. § 1973, 
the Civil Rights Act, 42 U.S.C. § 1985, the Fair Housing Act, 
42 U.S.C. § 3604, the Social Security Act, 42 U.S.C. §§ 301 
et sea., Article I, §§ 1 and 11, and Article XVII, § 1 of the 
Constitution of the State of New York, §§ 40-c(l) and (2) of 
the Civil Rights Law of the State of New York, S 291(2) of 
the Executive Law of the State of New York, and §§ 62 and 131 
of the Social Services Law of the State of New York, and 
regulations promulgated thereunder. Declaratory relief is 
authorized pursuant to 28 U.S.C. §§ 2201 and 2202.

3



Venue
4. Venue is proper under 28 U.S.C. § 1391(b).

All defendants reside in the Southern District of New York, 
and the claim arose in that District.

Parties
5. The plaintiffs are the following:

a. Plaintiff Anita Jordan is a homeless 
black woman who lives with her two children, April (age 18 
months) and Latoya (age two and a half), in a single room at 
the Elmsford Motor Lodge, 290 Tarrytown Road, Elmsford, New 
York. The Jordan family was*]51aced in the. motel by 
Westchester County.

b. Plaintiff Anna Ramos is a homeless white 
woman who lives with her three children, Lizette (age 
eleven), Vanessa (age five) and Gabriel (age one), in a 
single room at the Coachman Hotel, 123 East Post Road, White 
Plains, New York. The Ramos family was placed in the motel 
by Westchester County.

c. Plaintiffs Thomas and Lisa Myers are a 
homeless, black married couple who live with their three 
children, Thomas, Jr. (age four), Linda (age three) and Shawn 
(age two), in two small rooms at the Elmsford Motor Lodge,

4



290 Tarrytown Road, Elmsford, New York. The Myers family was 
placed in the motel by Westchester County.

d. Plaintiff Yvonne Jones is a black home- 
owner who has resided in the vicinity of the proposed village 
boundary in the unincorporated part of Greenburgh at 118 
North Evarts Avenue, Elmsford, New York for 35 years.

e. Plaintiff Odell A. Jones is a black 
homeowner who has resided in the vicinity of the proposed 
village boundary in the unincorporated part of Greenburgh at 
19 Van Buren Place, White Plains, New York for 27 years.

f. Plaintiff Geri Bacon is a black homeowner 
who has resided in the vicinity of the proposed village
boundary in the unincorporated part of Greenburgh at 16 Adams 
Place, White Plains, New York for 33 years.

g. Plaintiff James Hodges is a black home- 
owner who has resided in the vicinity of the proposed village 
boundary in the unincorporated part of Greenburgh at 51 Cabot 
Avenue, Elmsford, New York for two years.

h. Plaintiff Mary Williams is a black
homeowner who has resided in the vicinity of the proposed

»

village boundary in the unincorporated part of Greenburgh at 
179 Sears Avenue, Elmsford, New York for 28 years.

i. Melvin Dixon is a black homeowner who has 
resided inside the proposed village boundary at 15 North 
Lawrence Street, Elmsford, New York for 25 years.

5



j . Plaintiff NAACP is a branch of a 
nonprofit membership association representing the interests 
of approximately 500,000 members in 1,800 branches throughout 
the United States. Since 1909, the association has sought 
through the courts to establish and protect the civil rights 
of minority citizens. NAACP's address is One Prospect 
Avenue, White Plains, New York 10607.

k. Plaintiff National Coalition is a 
not-for-profit organization incorporated under New York law. 
Its primary purpose is to advocate responsible solutions to 
end homelessness with an emphasis on establishing decent 
housing for homeless persons^. The National Coalition also

•w.provides direct assistance in the form of rent subsidies, 
food and legal counsel to homeless people. Its address is 
105 East 22nd Street, New York, New York 10010.

6. The Conspiring Defendants are natural persons, 
and each has the following address:

Laurence Deutsch 211 Wood Hampton Drive 
White Plains, New York 10603

Colin Edwin Kaufman 8 Hartford Road
(a/k/a/ Hartford Lane) 
White Plains, New York 10603

Steven Neil Goldrich 128 North Hampton Drive 
White Plains, New York 10603

Michael James Tone 19 Chelsea Road 
White Plains, New York 10607

6



7. Defendant Coalition of United Peoples, Inc. 
("COUP") is a not-for-profit corporation that purports to 
have been organized under the laws of the State of New York. 
Its members are real property owners who reside in the 
vicinity of the proposed homeless housing site.

8. Defendant Anthony F. Veteran is the Town 
Supervisor of the Town of Greenburgh and is named as a 
defendant in that capacity.

Co-Conspirators
9. Various other persons not made defendants in

this action participated as co-conspirators with defendants* «
in the violation’s set forth below, and performed acts and 
made statements in furtherance thereof.

Factual Background 
The West HELP Development

10. West H.E.L.P., Inc. (Homeless Emergency 
Leverage Program, Inc.) ("West HELP") is a not-for-profit 
corporation organized under the laws of the State of New 
York. One of West HELP'S purposes is the construction of 
housing for homeless persons in the State of New York.

11. The County of Westchester (the "County") is a 
municipal corporation existing pursuant to the laws of the 
State of New York. The County is located in the Southern 
District of New York.

7



12. The Town of Greenburgh (the "Town") is a 
municipal corporation existing pursuant to the laws of the 
State of New York. The Town is located within the County.

13. Homeless families in Westchester County 
presently are quartered at great public expense in often 
squalid motel rooms. A parent with a number of children 
typically is allotted a single room.

14. A number of homeless families in the County 
are sheltered in motels that are far from their communities 
of origin. This aggravates the devastating impact of 
homelessness by disrupting relationships with schools, 
neighbors, relatives and other social and economic supports.

15. In or about October 1987, the County and West 
HELP jointly proposed the establishment of several housing 
developments for homeless families with children in the 
County.

16. In or about January 1988, the Town offered to 
have established within its boundaries one of those develop­
ments (the "West HELP Development"). The Town, together with 
West HELP, proposed as the site for the housing approximately 
30 acres of land, presently owned by the County, situated in 
the Town (the "Development Site"). In April 1988, the Town, 
by unanimous resolution of its supervisor and council 
members, expressed support for the West HELP Development and

8



requested that the County conduct the required environmental 
review.

17. The West HELP Development is intended to 
provide safe, economical and humane emergency shelter to 
homeless families with children.

18. The West HELP Development would provide 
"transitional" housing for homeless families pending their 
establishment of more permanent homes. As planned, it would 
consist of six two-story buildings with approximately 18 
housing units in each. A seventh building would be con­
structed to house day care, counseling, and selected social 
services for the benefit of those lodged at the Development 
Site. The West HELP Development is widely regarded as a 
model in the provision of cost-effective, decent transitional 
housing to homeless families with children.

19. The West HELP Development also includes the 
following proposals, among others:

a. The County would lease the site to West 
HELP for the period of construction plus ten years.

b. West HELP would secure construction and 
permanent financing for the West HELP Development from the 
sale of tax exempt bonds issued by a public benefit agency 
created under New York law. The bonds would be amortized 
over a 10 year period, after which control of the Development

9



Site would revert to the government subject to a requirement 
that it continue to have a housing-related use.

c. The County would enter into an agreement 
with West HELP for the placement of homeless families with 
children in the West HELP Development. Under this agreement, 
West HELP would receive a funding stream sufficient to cover 
operating costs as well as amortization and debt service of 
the bonds used to finance the West HELP Development.

20. A majority of the homeless persons in the
County are members of racial minorities. Such persons are 
among the intended and expected beneficiaries of the West 
HELP Development. ,•

Form,at ion of the Conspiracy
2 1 . in early 1988, defendant Deutsch, together 

with others presently unknown to plaintiffs, formed COUP. 
Defendant COUP'S purpose is to stop the West HELP 
Development. Defendant Deutsch is COUP'S president.

22. On or about February 11, 1988, Defendant 
Deutsch participated in a meeting held at the Valhalla High 
School in the County, at which there was discussion of means 
to oppose the West HELP Development. Later that same month, 
Defendant Deutsch publicly announced that he and other Town 
residents intended to prepare a petition, pursuant to the 
Village Law of the State of New York, to incorporate a new

10



village —  to be called "Mayfair Knollwood" —  within the 
Town. As envisioned, the geographic boundaries of Mayfair 
Knollwood were to include the Development Site.

23. Defendant Deutsch and his co-conspirators 
intend to use the incorporation of Mayfair Knollwood to block 
the West HELP Development. As Defendant Deutsch reportedly 
has put it:

We'll go ahead with secession and take a nice piece of 
taxable property with us.

The "secession" plan was and is racially motivated. As 
Defendant Deutsch was quoted as stating in opposing the West 
HELP Development:

You're taking a piece ef a ghetto and dumping it some­
where else "to get another ghetto started.

24. Thereafter in 1988, a petition for incorpora­
tion of the proposed Village of Mayfair Knollwood was pre­
pared and the process of circulating the petition for signa­
ture, pursuant to the Village Law of the State of New York, 
began (the "Petition"). As charted in the Petition, the 
proposed Village of Mayfair Knollwood includes the Develop­
ment Site. I

25. Defendant Deutsch participated in preparing 
the Petition, approved it, and assisted in its circulation. 
Defendants Kaufman, Goldrich and Tone agreed, in the 
Petition, to accept service of all papers in connection with 
a proceeding for incorporation.

11



26. The proposed boundary for Mayfair Knollwood is 
an irregular, multi-sided configuration designed by the 
Conspiring Defendants and their co-conspirators for the 
manifest purpose of excluding minority residents of the Town. 
The shape of the proposed Village and its purpose and effect 
to exclude racial minorities are shown on the map attached as 
Exhibit 1.

27. Just as the proposed boundary of Mayfair 
Knollwood was drawn in an effort to exclude racial minori­
ties, so too was it drawn in an effort to secure for Mayfair 
Knollwood a disproportionate part of the tax base and recrea­
tional and undeveloped land area of the Town.

28. Defendant COUP, the Conspiring Defendants and 
their co-conspirators seek unlawfully to gerrymander the 
proposed boundaries of Mayfair Knollwood so as to (a) exclude 
racial minorities from the proposed village, (b) appropriate, 
to the detriment of Town residents not within the proposed 
Mayfair Knollwood boundary, essential municipal resources, 
facilities, and amenities, and (c) appropriate a major 
proportion of the Town's undeveloped land with the purpose 
and effect of fostering racial segregation in housing.

29. Prior to September 14, 1988, hundreds of Town 
residents signed the Petition, thereby evidencing their 
support of the conspiracy to violate plaintiffs' rights.

12



30. On or about September 14, 1988, defendant 
Deutsch and other co-conspirators formally presented the 
Petition to the Town. A contemporaneous news report stated 
the following:

"The incorporation is a fact," Coalition ri.e. COUP] 
President Laurence Deutsch said. "The town may delay 
us, but it won't stop us. There is nothing that the 
town or county could do which could divert us from the 
incorporation."

The Position of Defendant Veteran
31. Defendant Veteran, as Town Supervisor of the 

Town of Greenburgh, is governed in the performance of his 
duties by the Constitutions and laws of the United States and 
the State of New^York.

32. The procedure that Defendant Veteran must 
follow in the processing of the COUP Petition is set forth in 
the Village Law of New York. That statute provides, in 
summary, for:

a. a hearing on the Petition at which its 
compliance with statutorily specified technical requirements 
is examined; the statute does not expressly direct Defendant 
Veteran to consider whether the Petition is consistent with 
the Constitutions of the United States or New York, or their 
laws ;

b. within a specified time, a decision on
the Petition;

13



c. thereafter, in the event the decision is 
favorable, a vote on the proposed incorporation by those 
within the boundaries set forth in the Petition; and

d. in the event of a majority vote in favor, 
incorporation of the new village as proposed in the Petition.

33. Following presentation of the Petition to the 
Town on or about September 14, 1988, Defendant Veteran 
initiated the procedures described in paragraph 32 above by 
scheduling a hearing for November 1, 1988.

34. Defendant Veteran is and has been an outspoken
supporter of the West HELP Development and has consistently
opposed the plan of COUP and the Conspiring Defendants to

»* «incorporate the -village of Mayfair Knollwood for the purpose 
of blocking the West HELP Development.

35. Defendant Veteran swore an oath in taking the 
office of Town Supervisor, pursuant to Article XIII, § 1 of 
the New York Constitution and section 25 of the New York Town 
Law, as follows:

I do solemnly swear (or affirm) that I will support the 
constitution of the United States and the constitution 
of the State of New York . . . .

Approval by Defendant Veteran of the Petition, with its
racially discriminatory purpose and effect and its breach of
the numerous constitutional and statutory provisions set
forth in paragraphs 39 through 48 below, would constitute a
breach of Defendant Veteran's oath of office.

14



36. Notwithstanding the foregoing, COUP and the 
Conspiring Defendants assert that Defendant Veteran has no 
authority to deny the Petition on any ground other than 
technical non-compliance with the specific mandates of the 
Village Law, and Defendant Veteran has initiated the proce­
dures thereunder for consideration of the Petition.

37. Plaintiffs assert that Defendant Veteran may 
not, consistent with his oath of office, proceed with the 
Petition in any manner whatsoever.

38. There exists a justiciable case or controversy 
between the parties concerning their rights and obligations 
as set forth above.

Constitutional and Statutory Background
39. In pertinent part, the Fourteenth Amendment of

the Constitution of the United States provides that:
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States? nor shall any State deprive any person of 
life, liberty or property without due process of law? 
nor deny to any person within its jurisdiction the equal 
protection of the laws.

40. In pertinent part, the Fifteenth Amendment of
the Constitution of the United States provides that:

The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition 
of servitude.

15



41. In pertinent part, 42 U.S.C. § 1973 provides
that:

No voting qualification or prerequisite to voting or 
standard, practice, or procedure shall be imposed or 
applied by any state or political subdivision in a 
manner which results in a denial or abridgement of the 
right of any citizen of the United States to vote on 
account of race or color . . . .

42. In pertinent part, 42 U.S.C. 6 3604(a) pro­
vides that it shall be unlawful "to refuse to . . . otherwise
make available or deny a dwelling to any person because of 
race, [or] color. . . . "

43. In pertinent part, Article I, § 1 of the
Constitution of the State of flew York provides that:

* *

No member of this state shall be disfranchised, or 
deprived of any of the rights or privileges secured to 
any citizen thereof, . . . unless by law of the land, or 
the judgment of his peers. . . .

44. In pertinent part, Article I, § 11 of the
Constitution of the State of New York provides that:

No person shall be denied the equal protection of the 
laws of this state or any subdivision thereof. No 
person shall, because of race, color, creed or religion, 
be subjected to any discrimination in his civil rights 
by any other person or by any firm, corporation, or 
institution, or by the state or any agency or subdivi­
sion of the state.

45. Section 40-c(l) of the New York Civil Rights 
Law provides that:

All persons within the jurisdiction of the state shall 
be entitled to the equal protection of the laws of this 
state or any subdivision thereof.

16



46. In pertinent part, Section 40-c(2) of the New
York Civil Rights Law provides that:

No person shall, because of race, . . .  be subjected to 
any discrimination in his civil rights, . . .  by any 
other persons or by any firm, corporation or institu­
tion, or by the state or any agency or subdivision of 
the state.

47. In pertinent part, Section 291(2) of the
New York Executive Law (Human Rights Law) provides that:

The opportunity to obtain education, the use of places 
of public accommodation and the ownership, use and 
occupancy of housing accommodations and commercial space 
without discrimination because of . . . race . . .  is 
hereby recognized as and declared to be a civil right.

48. The Federal Social Security Act, 42 U.S.C.
§§ 301 et sea. . guarantees 1̂*1 homeless families in the State 
of New York safe and decent emergency housing.

49. Article XVII, § 1 of the Constitution of the
State of New York provides as follows:

The aid, care and support of the needy are public 
concerns and shall be provided by the state and by such 
of its subdivisions, and in such manner and by such 
means, as the legislature may from time to time deter­
mine .

Thus, in New York State, the provision of assistance to the 
needy is not a matter of legislative grace; rather, it is 
specifically mandated by the State Constitution.
Sections 62(1) and 131 of the New York Social Services Law 
charge social service districts, such as the County, with the 
responsibility to provide public assistance and care for 
persons unable to provide for themselves.

17



50. Plaintiffs are persons protected by and having 
enforceable rights under the provisions set out in paragraphs 
39 through 49 above.

The Violation of Plaintiffs1 Rights and Injury
51. Beginning in or about February 1988 and 

continuing thereafter to the present, the Conspiring 
Defendants and their co-conspirators engaged in a conspiracy 
in violation of 42 U.S.C. § 1985(3); defendant Veteran is a 
participant in the conspiracy because he has initiated the 
procedure on the Petition called for by the Village Law. The 
conspiracy includes a continuing agreement, understanding and 
concert of action for the purpose of:

a. Depriving, either directly or indirectly, 
a person or class of persons -- racial minority citizens -- 
of the equal protection of the laws or of equal privileges 
and immunities under the laws set forth above;

b. Preventing or hindering duly constituted 
authorities of the State of New York —  the County and the 
Town —  from giving or securing to all persons, including 
racial minorities, in such State the equal protection of the 
laws.

52. As set forth in paragraphs 21 through 30 
above, the Conspiring Defendants did, or caused to be done, 
acts in furtherance of the conspiracy alleged; as set forth

18



in paragraph 33 above, defendant Veteran did, or caused to be 
done, an act in furtherance of the conspiracy alleged.

53. Plaintiffs have been injured in their person 
or property or deprived of having and exercising rights and 
privileges of a citizen of the United States, and have 
thereby suffered and are threatened with irreparable injury, 
including but not limited to the injury to homeless adults 
and children caused by the denial of safe and decent emer­
gency shelter.

54. Plaintiffs have sustained monetary damages in 
amounts presently unknown.

** a
CLAIMS FOR RELIEF 

Count I
55. Plaintiffs repeat paragraphs one through 54.
56. Defendants, by their acts, have conspired and 

are continuing to conspire, in breach of 42 U.S.C. § 1985(3), 
to abridge the voting rights of plaintiffs Yvonne Jones,
Odell A, Jones, Melvin Dixon, Geri Bacon, Mary Williams and 
James Hodges in violation of the Fifteenth Amendment to the 
Constitution of the United States, the Voting Rights Act of 
1965, 42 U.S.C. § 1973, Article I, §§ 1 and 11 of the
New York Constitution, and §§ 40-c(l) and (2) of the New York 
Civil Rights Law.

19



Count II
57. Plaintiffs repeat paragraphs one through 54.
58. Defendants, by their acts, have conspired and 

are continuing to conspire, in breach of 42 U.S.C. $ 1985(3)-, 
to violate and have violated the housing rights of plaintiffs 
Anita Jordan, April Jordan, Latoya Jordan, Anna Ramos,
Lizette Ramos, Vanessa Ramos, Gabriel Ramos, Thomas Myers, 
Thomas Myers, Jr., Linda Myers and Shawn Myers in violation 
of the Fourteenth Amendment to the Constitution of the United 
States, the Fair Housing Act, 42 U.S.C. § 3604, Article I,
§ 11 and Article XVII, § 1 of the New York Constitution,
§§ 40-c(1) and (2) of the N^r York Civil lights Law, and 
§ 291(2) of the Executive Law of the State of New York.

Count III
59. Plaintiffs repeat paragraphs one through 54.
60. Defendants, by their acts, have conspired and 

are continuing to conspire, in breach of 42 U.S.C. § 1985(3), 
to abridge the rights of plaintiffs Anita Jordan, April 
Jordan, Latoya Jordan, Anna Ramos, Lizette Ramos, Vanessa 
Ramos, Gabriel Ramos, Thomas Myers, Thomas Myers, Jr., Linda 
Myers and Shawn Myers to safe and lawful emergency shelter in 
violation of the Fourteenth Amendment to the Constitution of 
the United States, the Social Security Act, 42 U.S.C. § 301 
et seg., Article I, § 11 and Article XVII, § 1 of the New

20



York Constitution, and §§ 62(1) and 131 of the New York 
Social Services Law and the regulations promulgated 
thereunder.

Count IV
61. Plaintiffs repeat paragraphs one through 54.
62. a. Article VI, Clause 2 of the Constitution

of the United States provides as follows:
This Constitution, and the Laws of the United States 
which shall be made in Pursuance thereof . . . shall be 
the supreme Law of the Land . . . any Thing in the
Constitution or Laws of any State to the Contrary 
notwithstanding.

b. Article XIII, § 1 of the Constitution of
»* «the State of New-York provides as follows:

[A]11 officers, executive and judicial . . . shall . . . 
take and subscribe the following oath or affirmation: "I 
do solemnly swear (or affirm) that I will support the 
constitution of the United States and the constitution 
of the State of New York . . . "

c. Section 25 of the New York Town Law
provides as follows: "[E]very town officer shall take and
subscribe . . . the constitutional oath of office. . . . "

63. Under the constitutional provisions set forth 
above, defendant Veteran has a duty to uphold federal and 
state law. Moreover, in assuming his office as Town Super­
visor, defendant Veteran swore an oath to uphold the 
Constitution and laws of the United States and of the State 
of New York.

21



64. Pursuant to New York Village Law §§ 2-204,
206, 208, defendant Veteran has certain duties to hold a 
hearing and to render a decision with respect to the 
Petition, either favorably (in which case the Petition would 
be submitted for a vote by the electorate) or adversely (in 
which case there would be no vote). Thus far, he has not 
rendered that decision.

65. As set forth in paragraphs 31 through 38 
above, there is a justiciable controversy between plaintiffs 
and defendants as to their respective rights and obligations 
under the foregoing Constitutional and statutory provisions.

* «
- Relief Sought

Accordingly, plaintiffs demand judgment as follows:
1. As to Counts I through III:

a. Declaring that defendants have conspired 
in violation of 42 U.S.C. § 1985(3);

b. Directing entry of a permanent injunction 
restraining defendants from continuing their unlawful con­
spiracy, including, but not limited to, pursuing any further 
proceedings with respect to the Petition to incorporate the 
proposed Village of Mayfair Knollwood;

c. Awarding plaintiffs monetary damages in 
such amount as may be proven at trial;

22



d. Awarding plaintiffs their reasonable 
attorneys' fees, costs, and disbursements incurred in the 
prosecution of this action.

2. As to Count IV, declaring that defendant 
Veteran has the right and obligation, under the Constitution 
and laws of the United States and the State of New York, to 
deny or to refuse to proceed further with the Petition.

3. As to all Counts, directing such other and 
further relief as the Court may deem just and proper.
Dated: Greenburgh, N.Y.

November 1, 1988
PAUL, WEISS, RIFKIND, WHARTON & GARRISON

By. Cameron Clark
Attorneys for Plaintiffs 
1285 Avenue of the Americas 
New York, N.Y. 10019 
(212) 373-3000

Of Counsel,
Robert M. Hayes 
Virginia G. Schubert 
COALITION FOR THE HOMELESS 
105 East 22nd Street 
New York, N.Y. 10010 
(212) 460-8110
Andrew M. Cuomo 
2 Park Avenue 
Suite 1415
New York, N.Y. 10016 
(212) 686-1000

Edward Hailes, Jr. 
NAACP, Inc.
260 Fifth Avenue 
New York, N.Y.
(212) 481-410p
Julius L. Chambers 
John Charles Boger 
Sherrilyn Ifill 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

23



PFODOSFD 
BOUNDARY OF 
VILLAGE

MULTI-RACIAL
HOUSING

TOJTN OF GREEK BUR
Weucieaer Ctunrj, Nn» Y f*





In the Matter 
ofthe Proposed Incorporation of 

the Village of Mayfair Knollwood

A petition for the incorporation of certain territory 
in the Town of Greenburgh c» the Village of Mayfair 
K n v llw v v /J  h e v i u g  J u l y  L « « ii iw w e iv w J  b y  turn u u  Swpl«*ub«J. 14, 
1988, end after due posting and publication of notice in 
accordance with Section 2-204 of the Village Law, a hearing 
to consider the legal sufficV.>ncy of euch petition having 
been held on November 1, W 4 ,  at the Greenburgh Sown Hall, 
Knollwood and Tarrytovm Roads, Elmsford, New York, and said 
hearing having been adjourned until November 21, 1988 for 
the receipt of written testimony, in accordance with Section 
2-206 of the Village Law,»and all testimony and objections 
having been heard;

Now, therefore, I hereby determine that the aforesaid 
petition does not comply with the requirements of Article 2 

of the Village Law, does not comply with the requirements of 
the Constitution of the United States of America, and does 
not comply with the requirements of the Constitution of the 
State of New York, for the following reasons:

1. The boundary description submitted with the 
petition did not describe the boundaries of the proposed 
village with "common certainty" thereby making it impossible 
to locate the boundaries with the precision that is 
necessary. Numerous gaps in the proposed boundaries were 
discovered making the description defective.



The memorandum in opposition aubmitted by the Town 
Engineer clearly details the deficiencies in the boundary 
description.

At least 15 voids in the description were discovered 
rendering it impossible to accurately define the village 
boundaries.

The description does not even begin at a known point on 
a filed map which is the fundamental criteria of all 
property descriptions.

The description uses the centerline of Grasslands Road 
yet fails to note that Grasslands Road has been relocated 
and that the centerline at many points lies within the Town 
of Mount Pleasant. # •

For these reasons and the other reasons stated in the 
memo of the Town Engineer the boundary description is 
clearly defective and does not describe the proposed village
with "common certainty".

2. The boundaries, where ascertainable, were 
gerrymandered in a manner to exclude black persons from the 
proposed village. Such gerrymandering constitutes a blatant 
attempt at racial discrimination and violates the rights 
granted to all cititens by the Constitution of the United 
States of America and the Constitution of the State of New 
York.

In the entire 30 years during which I have held 
elective office I have never seen such a blatant and 
calculated attempt to discriminate. The boundaries

2 -



repeatedly deviate from a natural course solely to exclude 
individual properties where blacks live. Within the 
boundaries of the proposed village there is not a single 
unit of multi-family housing, housing which historically has 
been more accessible to minority groups because of its lower 
cost.

The boundary tigs and sags approximately 1000 feet 
along Route 9A to exclude a scatter site public housing 
project populated by 25 black families. The boundary carves 
around the Granada Condominium development on three sides to 
exclude its approximately 90 black families. The boundary 
carves around the Old Tarrytown Road School property, now 
owned by a black developer, on three sides to exclude its 
future population of 87 families, the minority of which are 
anticipated to be black families. The boundary carves 
through the neighborhood of North Elmsford, a neighborhood 
which has stood cohesively as a unified area since the 
1880's, including its predominantly white area in the 
village but excluding its predominantly black area. The 
boundary carefully excludes the black families of the River 
Park Apartments, Parkway Homes, Parkway Gardens, 
Hillside-Wyndover, and of course, the public housing and low 
and moderate income housing areas of predominantly black 
Fairview.

Included in the proposed village is all the available 
undeveloped lands bordering black areas. These undeveloped 
lands are the only natural expansion areas for the black

3 -



neighborhoods. By taking these lands it is clear that the 
petitioners intend to stop the growth of the black 
neighborhoods in an attempt to exclude future generations of 
blacks from Greenburgh.

While Article 2 of the Village Law does not 
specifically address itself to the "intent* of the 
petitioners, I firmly believe that the rights granted by the 
federal and state constitutions transcend the procedural 
technicalities set forth in the Village Law.

The proceedures for the formation of a new village 
cannot be used to accomplish an unlawful end. Therefore, it 
is my obligation as a public official to defend the 
constitution and to reject .the petition on the grounds thatft «
its purpose is" to discriminate against black persons, to 
segregate them from whites by the imposition of political 
barriers, and to prevent the natural expansion of the black 
population in the Town of Greenburgh.

3. The new village was proposed for the sole purpose 
of preventing the construction of transitional housing for 
homeless families near the neighborhood of Mayfair 
Xnollwood. Such an invidious purpose is not what was 
contemplated by the Legislature when the statutes governing 
the incorporation of villages were drawn and cannot be 
permitted to succeed.

Historically, the legal concept of incorporated 
villages was created to afford residents of an area an 
opportunity to create a multipurpose special district to

- 4 -



secure fire or police protection or other public eervices. 
Typically, clusters of people in an otherwise sparsely 
settled town joined together to provide services that would 
not be of benefit to the Town as a whole.

After World War II, the rapid population growth of 
suburban towns led to the creation of town improvement 
districts to provide needed services and the incorporation 
of new villages virtually ceased and several existing 
villages were dissolved.

The petitioners do not seek to incorporate to provide 
themselves with services. The neighborhoods in question are 
already serviced by town water, sewer, police and fire 
protection.

*o «Rather, the petitioners seek to incorporate for another 
purpose. Their stated purpose for forming the village is to 
prevent the proposed construction of transitional housing 
for 108 homeless families near their neighborhoods.

Before agreeing to consider the homeless project, now 
known as Westhelp, the Town Board insisted that various 
safeguards be made a part of the proposal to adequately 
mitigate against any possible adverse impacts.

The Westhelp project includes a land set-aside of 
approximately 34 wooded acres, the majority of which would 
remain as a natural woodland buffer around all sides of the 
housing with a minimum of 400 feet of woodlands between all 
buildings and existing homes. The predominantly black 
homeless residents would be provided on-site day cere,

5 -



counseling* social services* recreation* transportation/ and 
24 hour security. Visitation would be restricted to a 
single visitor's room in full view of a security guard.
Only homeless families would be housed on the premises 
including only young mothers* their babies and other small 
children. There would be no derelicts, drug addicts, 
alcoholics* or bums. Children of school age would be bused 
back to their school district of origin thereby providing 
continuity of education. In summary, the project would 
provide a clean* efficient, cost effective, and humane 
alternative to welfare motels. The 108 families that would 
be housed for an average stay of six months each represent 
only a fraction of the ov^r 4500 homeless persons now 
present in Westchester County.

Yet, given all the safeguards and the high purpose of 
the Westhelp project, the petitioners have organised to stop 
the project by any means possible solely because of the 
irrational argument that it is to be located in their 
"back-yard".

While Article 2 of the Village law does not 
specifically address itself to the "intent" of the 
petitioners, I firmly belie/e that the rights granted by the 
federal and state constitutions transcend the procedural 
technicalities set forth in the Village taw.

The proceedures for the formation of a new village 
cannot be used to accomplish an unlawful end.

- 6 -



Therefore/ it is my obligation as a public official to 
defend the constitution and to reject the petition on the 
grounds that its purpose is to deny homeless persons needed 
services/ to exclude homeless persons, and to racially 
discriminate against homeless persons vho are predominantly 
black.

4. The petition is defective in that a substantial 
number of signatures were obtained under false pretenses. 1 
have received numerous objections from persons vho signed 
the petition stating that they were told that the petition 
was only to ask for a straw poll of the residents on their 
opinion as to whether a village should be formed, not a 
petition to formally commehce the incorporation procedure.

5. The petition is defective in that a substantial 
number of the signatures contain irregularities and do not 
match the known signatures of the persons alleged to have 
signed.

6. The petition is defective in that numerous 
residents were omitted from the list of "regular 
inhabitants". In particular, many of the newer residents 
were omitted.
Datedt Elmsford, N.Y.

ANTHONY F.
Supervisor 

Town of Greenburgh
i. F. VETERAN 
arvisor

7 -



(212) 373-3234 June 8, 1989

Paul Agresta, Esq.
Town Hall, Town of Greenburgh 
Tarrytown & Norwood Roads 
Elmsford, New York 10523

Greenberg v. Veteran
Dear Paul:

I enclose for your review a draft petition for a 
writ of mandamus. I am simultaneously circulating this draft 
to my co-counsel for their comments as well.

We also are preparing an appendix of supporting 
papers for the petition.

If you or Karen have any thoughts, please call me 
(373-3234) or Bill Gerson (373-3416).

Sincerely,

Jay L. Himes
Enclosure
FEDERAL EXPRESS
cc: Joyce Knox

Jack Boger 
Robert M. Hayes 
Andrew M. Cuomo



Rev
ued

 9/8
6

No. 39-7476
m •
0Q

UNITED STATES COURT OF APPEALS 
‘ FOR THE SECOND CIRCUIT

In the Matter of the Applica­
tion of MYLES GREENBERG and 
FRANCES M. MULLIGAN,

Petitioners-Appellees,
-against-

ANTHONY F. VETERAN and 
SUSAN TOLCHIN,

Respondents-Appellants.

NOTICE OF MOTION

Paul Agresta, Esq. 
Town Attorney 
Town of Greenburgh 
P. 0. Box 205 
Elmsford, New York 
(914) 993-1546

» 10523