Greenberg v. Veteran Verified Petition for Removal of Action from State Court

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
------------------------------------- X
In the Matter of the Application of 
Myles Greenberg and Frances M. Mulligan, 
proponents of a petition to incorporate 
the yillage of Mayfair Knollwood,

Petitioners,
For a Judgment pursuant to 
New York CPLR Article 78,

INDEX NO. 
89 Civ.

Verified Petition 
For Removal Of 
Action From 
State Court

- against -
Anthony F. Veteran, Supervisor of the 
Town of Greenburgh, New York, Susan Tolchin, 
Town Clerk of the Town of Greenburgh,
New York, and (See annexed list of 
additional Respondents, Exhibit A),

Respondents.
X

TO THE HONORABLE JUDGES OF THE
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK:

Respondents Anthony F. Veteran, Supervisor of the Town 
of Greenburgh, and Susan Tolchin, Town Clerk of the Town of 
Greenburgh, respectfully allege as follows:

1. This proceeding was commenced in the Supreme Court 
of the State of New York, County of Westchester, by service 
of a copy of the Notice of Petition signed December x4,
1988, Verified Petition and Petitioners' Memorandum of Law 
signed December 13, 1988 on the Town Clerk of the Town of 
Greenburgh at the Greenburgh Town Hall, Town of Greenburgh, 
Elmsford, New York on December 29, 1988. Upon information 
and belief all additional respondents listed were, according



to Village Law Section 2-210(4), served with copies of same 
by certified mail and are parties to the proceeding.

2. This Verified Petition for Removal of Action from 
State Court is being filed within 30 days after service of 
the Notice of Petition and Verified Petition upon the 
respondents to this proceeding. Thus, this removal petition 
is timely filed pursuant to 28 U.S.C. Section 1446(b).
Copies of the Notice of Petition, Verified Petition, and 
Petitioners' Memorandum of Law are annexed in accordance 
with 28 U.S.C. Section 1446(a), as Exhibit B. These papers 
are the only papers served upon the respondents in this 
proceeding.

3. Petitioners Myles Greenberg and Frances M.
Mulligan allege in paragraph two of the Verified Petition 
that they are residents of the Town of Greenburgh, New York, 
in the Southern District of New York, and reside in the 
territory sought to be incorporated as the proposed village 
of Mayfair Knollwood.

4. Respondent Anthony F. Veteran is the duly elected 
Supervisor of the Town of Greenburgh, New York.

5. Respondent Susan Tolchin is the duly elected Town 
Clerk of the Town of Greenburgh, New York.

6. Upon information and belief, all of the additional 
respondents are objectors to the petition to form the 
proposed village.

7. Pursuant to Village Law Section 2-202, a petition 
proposing the incorporation of the Village of Mayfair

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Knollwood within the Town of Greenburgh was filed with the 
Town of Greenburgh on or about September 14, 1988. Pursuant 
to Village Law Sections 2-204 and 2-206, a public hearing 
was held on the proposed village where objectors had an 
opportunity to and did submit both oral and written 
objections to the petition proposing the new village.

8. Pursuant to Village Law Section 2-208, the 
Supervisor is required to render a decision as to the legal 
sufficiency of the petition.

9. Respondent Veteran, in a decision dated December
1, 1988, rejected the petition proposing the incorporation
of the proposed village of Mayfair Knollwood. Supervisor 
Veteran rejected the petition on the basis both that is was 
not legally sufficient according to several grounds 
enumerated in Village Law Section 2-206, and was not legally 
sufficient in that the proposed village would result in 
racial discrimination and the violation of civil rights 
under the Constitution and laws of the United States of 
America and the Constitution of the State of New York. 
Supervisor Veteran's decision states that the boundaries of 
the proposed village are gerrymandered in such a way as to 
constitute a blatant attempt at racial discrimination, and 
that the intent of those seeking the incorporation of the 
proposed village is to prevent the construction of 
transitional housing for homeless families, the majority of 
which would be made up of blacks and other racial 
minorities. A copy of the Supervisor's decision appears as

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an exhibit to the Verified Petition annexed hereto as 
Exhibit B.

10. Pursuant to Village Law Section 2-210, a resident 
of the area encompassing the proposed village may seek 
review of a supervisor's decision adverse to a village 
petition by means of a special proceeding pursuant to 
Article 78 of the Civil Practice Law and Rules of the State 
of New York. Petitioners Myles Greenberg and Frances M. 
Mulligan in paragraph 1 of the Verified Petition allege that 
they seek such a review in the instant proceeding.

11. This action may be removed to this Court by 
respondents pursuant to 28 U.S.C. Section 1443(2) and 28 
U.S.C. Section 1441(b).

(a) U.S.C. §1443(2) authorizes removal, in any civil 
action:

"(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."

As summarized above and as more fully set forth in 
Supervisor Veteran’s decision, the proposed village petition 
was rejected in part on the basis of Federal and State 
Constitutional and statutory provisions providing for equal 
rights. Petitioners Myles Greenberg and Francis M. Mulligan 
thus have brought this Article 78 proceeding for acts or 
refusals to act by respondents that fall within §1443(2).

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Accordingly, this action may be removed to this Court by 
respondents pursuant to 28 U.S.C. §1443(2).

(b) This action also may be removed by respondents, 
pursuant to 28 U.S.C. 51441(b). Petitioners Myles Greenberg 
and Francis M. Mulligan, in their Article 78 proceeding, 
purport to assert a claim against respondents under 42 
U.S.C. §§1983 and 1988 on the ground that Supervisor 
Veteran's decision allegedly violated their rights under the 
First Amendment of the Constitution of the United States. 
This cause of action is one of which the district court has 
original jurisdiction, pursuant to 28 U.S.C. §1343, founded 
on a claim or right under the Constitution or laws of the 
United States. Thus, removal also is proper under 28 U.S.C. 
§1441(b) without regard to the citizenship or residence of 
the parties.

12. There is currently pending in United States 
District Court for the Southern District of New York a 
related civil action before Judge Goettel, Case number 88 
Civ 7738 (GLG) , entitled Yvonne Jones, et al. v. Lawrence 
Deutsch, et al., brought by the National Association for the 
Advancement of Colored People, the National Coalition for 
the Homeless, and other plaintiffs, against the proposed 
village incorporators and Supervisor Veteran seeking 
declaratory and injunctive relief and monetary damages to 
prevent the incorporation of the proposed village on the 
grounds that the incorporation sought is for the purposes of 
racial discrimination and discrimination against homeless

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persons and is part of a conspiracy to abridge the voting 
rights, housing rights, and emergency shelter rights of 
black and homeless persons. Plaintiffs in that action seek 
a ruling 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 the petition for 
the proposed incorporation on those grounds. Plaintiffs in 
that federal action are named as Respondents in this 
proceeding and are joining in removal.

13. Respondents Robert Martin Company, Keren 
Developments, Inc., and Ruth E. Roth are also joining in 
removal.

14. Pursuant to 28 U.S.C. 1446(d), respondents are 
filing herewith and present to this Court a bond with good 
and sufficient surety conditioned that they will pay all 
costs and disbursements incurred by reason of this removal 
proceeding ^..ould it be determined that this action is not 
removable or is improperly removed.

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Accordingly, respondents respectfully request that this 
action, now pending against them in Supreme Court of the 
State of New York, County of Westchester, be removed to this 
Court.
Dated: Elmsford, New York

January 25, 1989

J  i f  - s

ANTHONY F. VETERAN 
Supervisor '

tsCi'4-SUSAN TOLCHIN 
Town Clerk

Cuddy & Feder 
90 Maple Avenue 
White Plains, N.Y. 10601 
(914) 761-1300

By:
/ O  •
f C  X r ' f u
RUTH E. ROTH
Attorneys for Respondent: 
Keren Developments, Inc.
ROBERT MARTIN COMPANY

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, New York 10019 
(212) 373-3000

Attorneys for Respondents:
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, 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

and
Grover G. Hankins, Esq.
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, Maryland 21215-3297 
(301) 486-9191
Attorney 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

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I, Anthony F. Veteran being duly sworn, deposes and 
says: that I an the Town Supervisor of the Town of 
Greenburgh a respondent in the within action; I have read 
the foregoing Verified Petition for Removal of Action from 
State Court and know the contents thereof; the same is true 
to my own knowledge except as to matters therein stated to 
be alleged on information and belief, and to those matters I 
believe them to be true based on writings and other papers 
in my possession.

INDIVIDUAL VERIFICATION
STATE OF NEW YORK
COUNTY OF WESTCHESTER

ANTHONY F. VETERAN 
Supervisor

Sworn to before this
day of m

u u
1989

Notary Public

ANNA G  MATTHEWS
f Public, State of New Ybrte 

No. 604359880 
•d in Westchester County 
Expires August 31, i£



I, Susan Tolchin being duly sworn, deposes and says: 
that I am the Town Clerk of the Town of Greenburgh a 
respondent in the within action; I have read the foregoing 
Verified Petition for Removal of Action from State Court and 
know the contents thereof; the same is true to my own 
knowledge except as to matters therein stated to be alleged 
on information and belief, and to those matters I believe 
them to be true based on writings and other papers in my 
possession.

INDIVIDUAL VERIFICATION
STATE OF NEW YORK
COUNTY OF WESTCHESTER

SUSAN TOLCHIN 
Town Clerk

Sworn to before this
day of / 1989.

Notary Public
ANNA C. MATTHEWS

Notary Public. Stale erf New "folk 
No. 60-4359880 

OuaMed tn Westchester County 
Term Expires August 31, 1989

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I, RUTH E. ROTH being duly sworn, deposes and says: 
that I am a member of the firm of Cuddy & Fedder, attorneys 
for respondent, Keren Developments, Inc., in the within 
action; I have read the foregoing Verified Petition for 
Removal of Action from State Court and know the contents 
thereof; the same is true to my own knowledge except as to 
matters therein stated to be alleged on information and 
belief, and as to those matters I believe them to be true 
based on writings and other papers provided to me by 
respondent. The reason why this verification is made by me 
is that my office is in a different county than that of the 
respondent.

INDIVIDUAL VERIFICATION
STATE OF NEW YORK
COUNTY OF WESTCHESTER

/
RUTH E,

r .V  A  A  ZE­
ROTH

Sworn to before this
is  ̂ d a y  of *tv, .. •--3 , 1989

J
J ?

/

S  N o t a r y  P u h l d c

LAWRENCE J. REISS 
Notary Public, State of Now Ybrfc

No 4838072
Qualified in Westcnester County > 

Commission Expires September 30, 19_i

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I,’ _____ lco l 0 £• R being duly sworn, deposes
and says: that I am an Attorney-in-fact of the Robert Martin 
Company, a partnership, and a respondent in the within 
action; I have read the foregoing Verified Petition for 
Removal of Action from State Court and know the contents 
thereof; the same is true to my own knowledge except as to 
matters therein stated to be alleged on information and 
belief, and to those matters I believe them to be true based 
on writings and other papers in my possession.

PARTNERSHIP VERIFICATION
STATE OF NEW YORK
COUNTY OF WESTCHESTER

Sworn to before-Hihis 
day of

-  cr
Notary Public

ANNA C. MATTHEWS 
Notary Public, Stale at New IM l 

No. 60-4359880 
OuaRfled in Westchester County 
Term Expiree August 31, 1989

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i 1<J87
- _ lt -̂i 3  £LjG bj 3 Power of Attorney

KNOW ALL MEN BY THESE PRESENTS, which are intended to 
constitute a GENERAL POWER OF ATTORNEY, pursuant to Article 
5, Title 15 of the New York General Obligations Law:

That we, MARTIN S. BERGER and ROBERT F. WEINBERG, 
individually and as general partners of ROBERT MARTIN 
COMPANY, each with an office and place of business at 100 
Clearbrook Road, Elmsford, New York 10523, do hereby appoint 
BRAD W. BERGER, LEE S. NEIBART and LLOYD I. ROOS, each with 
an office and place of business at 100 Clearbrook Road, 
Elmsford, New York 10523, our attorneys-in-fact TO ACT 
SEVERALLY, in our names, places and stead in any way which 
we ourselves could do, if wo were personally present, to thn extent permitted by law to act through an agent.

We will not question the sufficiency of any instrument 
executed by our said attorneys-in-fact pursuant to this 
power notwithstanding that the instrument fails to recite 
the consideration therefor or recites merely a nominal 
consideration; any person dealing with the subject matter of 
such instrument may do so as if full consideration therefor 
had been expressed therein.

To induce any third party to act hereunder, we hereby 
agree that any third party receiving a duly executed copy or 
facsimile of this instrument may act hereunder, and that 
revocation or termination hereof shall be ineffective as to 
such third party unless and until actual notice or knowledge 
of such revocation or termination shall have been received 
by such third party, and each of us, for ourselves and our 
heirs, executors, legal representatives and assigns, hereby 
agree to indemnify and hold harmless any such third party 
from and against any and all claims that may arise against 
such third party by reason of such third party having relied 
on the provisions of this instrument.

• . ■ l. ->n 'M-H . +

This Power of Attorney shall not be affected by the 
subsequent disability or incompetence of either of the 
principals.

IN WITNESS WHEREOF, we have hereunto signed our names 
this /o™ day of November, 1987. 7 , >

-Martin s . Ber&er
I c_

ROBERT F. WEINBERG

STATE OF NEW YORK )
: ss

COUNTY OF WESTCHESTER)
On the 10 —  day of November, 1987, before me 

personally came MARTIN S. BERGER and ROBERT F. WEINBERG, to 
me known, and known by me to be the individuals described in 
and who executed the foregoing Power of Attorney, and they 
acknowledged to me that they executed same in their 
individual capacities and as general partners of Robert 
Martin Company.

AT*u (t nit'-_
Notary Public

Record t Return To:
Lloyd I. Roos, Esq.
Vice President & General Counsel 
100 Clearbrook Road 
Elmsford, New York 10523

—A- jrr-i. M l '• °i | ■» 7



INDIVIDUAL VERIFICATION

I, RUTH E. ROTH being duly sworn, deposes and says: 
that I am a respondent in the within action; I have read the 
foregoing Verified Petition for Removal of Action from State 
Court and know the contents thereof; the same is true to my 
own knowledge except as to matters therein stated to be 
alleged on information and belief, and to those matters I 
believe them to be true based on writings and other papers 
in my possession.

STATE OF NEW YORK
COUNTY OF WESTCHESTER

Sworn,to before this 
, day of 1989 .

■C- j
Notary Public'’

Uusirfied in Westchester County
Commission E sp ,r„  S e p ^ U r  30^ ^

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Attorney's Verification

Jay L. Himes, an attorney admitted to practice in the courts 
of the State of New York affirms under the penalties of perjury 
that he is the attorney for the respondent Yvonne Jones and 
others aforesaid in this proceeding; that the foregoing petition 
is true to his own knowledge except as to matters stated to be 
upon information and belief; that as to those matters he believes 
them to be true based on writings and other papers furnished to 
him by respondents; and that the reason why the verification is 
made by him is that his office is in a differrent county than 
•'espondents .

STATE OF NEW YORK
COUNTY OF NEW YORK

L
/ JAY L. HIMES

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