Greenberg v. Veteran Opinion

    UHITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

X

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

Petitioners,
-against-

ANTHONY F. VETERAN, et al.,
Respondents.

89 Civ. 0591 (GLG) 
O P I N I O N

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, G e n  Bacon, Mary 
Williams, James Hodges and National 
Association for the Advancement of 
Colored People, Inc.White Plains/Greenburgh Branch:

PAUL, WEISS, RIFKIND, WILTON & 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. Gerson, 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



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 beli|ve lt
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 faderal^ 
court. To that thinking, the retort is quite simple: "federal
courts are courts of limited Jurisdiction.-’ 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 majoritarian 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. A R.
("NYCPLR") §§ 7801-06 (McKinney 1981 t Supp. 1989), the so-called
Article 78 proceeding. Judicial review under these provisions

(1978) .
Owen Fm,i o . 6 mention CO. V. Kroger, 437 U.S. 365, 374

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. Id̂ . at § 7803. 
Although an Article 78 proceeding cannot be initiated in federal 
court, Chicago. Rock Island & Pacific R.R. Co. v. Stude, 346 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. 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



mmunity 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 -fiot 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 

qualify 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



follwood.1 On September 14, 1988, pursuant to section 2-202 of 
the Village Law, COUP presented an incorporation petition to 
Creenburgh Town Supervisor Tony Veteran, whose responsibility it 
is in the first instance to determine whether the petition comp 
with the requirements of the Village Law. In accord with section 
2-204 o f 1 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 number 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.
V. neutsch. No. 88 Civ. 7738 (GLG). The complaint alleges, 

inter alia, a civil rights conspiracy amongst the named defendants 
pursuant to 42 U.S.C. S 1985, the ostensible purpose of which is 
to deprive plaintiffs of voting, housing, and emergency-shelter

2 Just how incorporation of the proposed viliage would
obstruct construction o ?  housing for « » "So u "  
admittedly County-owned I . the newly formed village
Presumably, COUP believes thf  “ tlofnecessary zoningwould be able to so bog down and delay approval or n r become
and other permits that pursuit of the prelect 
undesirable.

4



ights 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 file 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 Torn residents (particularly newer re
are not identified as would-be inhabitants of tbe proposed village,

as required by section 2-202 of tbe Village Lav.»
.Cnder tbe express provision of section 2-210 of tbe Village 

review of a town supervisor’s decision on an incorporation 

petition may be bad only through an Article 78 proceeding on 
grounds that tbe 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 pr 
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 peutsch action.
s Decision be reversed and the Urging that the December 1 Decision

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

5 principally as * r.eS? ‘ c°[onThich,C i S l  alia, drops
complaint was filed in the Bja£||!l act „u  a civil rights
defendant Veteran as a member
conspiracy.

6



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

sufficient evidence; F -- x
(2) since a town supervisor's authority under section 2-206

Jf'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



%
i
k

states constitution. Veteran's decision violates those

rights/
Freely expressing our doubt as to the propriety of removal 

this case, a conference in chanters was scheduled to discuss, inter 
a u r ' i i ,  Whether, as g e n e r a l  proposition. Article 78 proceedings 

nay be renoved to federal court, (ii) if 80' “hether renoval 
this case is justified under either of the pertinent statutory

provisions invoked, to be discussed into. '<hether'
assuming the instant proceeding can be renoved, Principles of 
abstention dictate that we stay our hand or disniss in deference 

to a state proceeding addressing sone or all of the issues raised.
Memoranda and letters on these subjects were submitted to the 

court prior and subsequent to the scheduled conference. Generally, 

all parties are of the belief that the Article 78 proceeding at bar 

could be and properly was renoved, 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

I “ 7  a infra we add only that it appears certain4 As discussed into, 1we ^  the procedures employed
of the questions bearing on the 1 g Y f his £uthority under the
and whether Veteran e*ceeded the sc of New York law (indeed, from
w h a t T e  ̂ e ^ r b ^  pefitTolfeVs' counsel, certain of the state 
quest Tons3 may be makers of first impression, .

8



r #»
the matter. See Railway Co. v. Ramsey. 89 D.S. (22 Wall.) 322, 

328 (1874) (noting court’s authority to remand §ua 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 JtciL 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



eral federal: removal statute, 28 U.S.C. 
consider each of these provisions in turn.

$ 1441(b) We

-t
i a. 28 P.S.C. S 1443(21

- 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



Led.'* Id,, at 586 (quoting tinner, <15 F. Supp. at 722). The 
statute is exceptional in that it allows the presence of a federal 

defense to control the question of jurisdiction, tinner, <15 P. 

Supp. at 723 n. 7 (citing IflulffifUl* iNashville P-P- v- X°ttleY ,
v*211 U.3 ^ 1 4 9  (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 537. £en also Armeno v,. 

nridcenort 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



/

ion under state law is given proper consideration. ££- 
■eiUnoton. 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

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:

f n 1 with Judge Meskill*s

iS«s
of^the removing defendant must be -colorable, 

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 acted 
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



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." 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. IcL, 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 ! 2 , at 4; ^  ! 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



r 5 ,the Fourteenth Amendment's command of equal protection. Thus,

respondents conclude, the Village Lav, though neutral on its face,

would produce a discriminatory result if applied in ignorance of
federal constitutional proscriptions* and therein rests the

5 Citing only Gomillion v Liahtfoot. 364 U.S. 339 (I960), 
respondents' memorandum notes simply that "Supervisor Veteran 
relied on federal constitutional protections against race 
discrimination . . . [and] [t]here can be no genuine 
these provisions are lavs 'providing for equal civil rights. 
Respondents' Conference Memorandum at 9. S S S . also T° ™ V  Z 
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 . . . • 
Id. 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, iplifce 
the plaintiffs in Gomillion. be deprived of their pre-existing 
right to vote (here, in the Town of Greenburgh). See especially 
Caserta v. Village of Dickinson, 491 F. Supp. 500, 506 n.14 (S.D. 
Tex. 1980) (distinguishing Gomil1ion since excluded plaintiffs 
retained their pre-existing right to vote; "[t]hose not within the 
Village of 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



!

jKrable 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. 11 seems to us' 
must necessarily include state constitutional law, for it is a 

fundamental m ucim of any constitutional society, as New 
that constitutional mandates govern and delimit legislative 

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 racial discrimination. 

Tn re Rose. 61 Hisc.2d 377, 305 N.Y.S.2d 721, 723 (Sup. Ct. 1969), 

a f f M j - , .  36 A. D. 2d 1025, 322 N.Y.S.2d 1000 (2d Dep't 1981, .‘ 

Although state law in such a case may be found by resort to the 

State Constitution, as opposed to the Village Law, 

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 botji. SSS especially

6 Whether a town supervisor, as °PP°s^  ^°ssed inURos4 and 
authority to make that determination was not discussed ----
is not addressed here.

15



linciton. 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.f 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. Pedourich. 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 -
Stuwesant Town Coro. . 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) .
The case at bar, therefore, is readily distinguishable from 

Cavanaah 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. Id̂ . 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



^^«guired 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 la pari materia with its federal relation.
^Xertainly, 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. No 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 5 11, 

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



te or municipal action relying on federal authority parallelling 

cited state law, the case could be removed to federal court, m i s  

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'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 

M •intended tc 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



other than those providedr

^xstified here, must be found for reasons 
under the refusal clause.7

•' fr. 28 P.S-g. « 1441(bi

Urjder 28 V-p.C. S 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

7 Our decision on the refusal clause might appear 
aratuitous in light of our holding infra that, even if this case 
was^properly11 removed, principles of abstention warrant a remand 
Our ruling on the abstention/remand, however, might be d i f f e t
were we to find that the case could be removed under ref
clause Congress's explicit determination that state officials

Hfort^th^oV/on'ora1; ^  oStUnIS

does? al?er a?l, have a federal as well as state component.



in 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.

TTnshur Countv v. Rich. 135 U.S. 467, 475 (1890). Record
commissioners of Road Improvement Djst. No. ? v- St. Louis S.Wr_ 

Rv, Co.. 257 U.S. 547, 557, 559 (1922). CjU Weston v. City Council 

of Charleston. 27 U.S. (2 Pet.) 449, 464 (1829) (the term -civil 

suit," 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. 

npoartmenf 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



/

n 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. F+ T^nlm S.W. RV. . 257 D.S. at 554 ("[a]n 
administrative proceeding transferred to a court usually becomes 
judicial, although not necessarily so") (emphasis added).*

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 8

8 Indeed, the proper application in the modern context of
19th-Century Court precedent defining "civil action is a matter 
Jot free 7rom 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 De?l, all of whic 
r-adicallv chanqed economic life and governance in this society. 
Mirroring S e  federal model produced by the New Deal a multitude 
Of administrative agencies now permeate the ranks or state 
decisionmaking. In that context, we think it a J^itimate question
to wonder whether the Supreme Court and/or Action" so as to
appropriate to define expansively the term^ ci stateallow the universal removal of garden-variety appeals from state
administrative action.

21



eeding,- 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 for~r>; J. Weinstein, H. Korn, » A.

Miller, r-f s a a a  a s * * *  »  <1980 ‘ Supp- Dec’ 1988>
(discussing nature of Article 78 proceeding); D. Siegel^ Handboci
ga JteM very Civil rraciisa 55 557-70 (1978 8 supp. 1988) (saae, .

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. 5 1441 1S- we
think, to invite disruption with well-settled notions of comity

and federalism. See, Srivello y, poard of Adiustment, 183

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);

v onhl ic s e r v ^ o m l ^ u i i ^ i -  129 F - SUPP' 722' 725

7 7 7 ^ 7  example, an Article. 7 ^  P
different from the administrati »  ^  _ The court there held
Liberty Mutual Ins. Cô ., 367 U. .■ l ratiVe determination on a
that a challenge to a Texas federal court as a
worker’s compensation cla diversity but only because Texas law 
.•civil action" o n l e n a e  an proceeding [; ]
provides that such a c h a . without reference to what may have
£ln decided'by U.e^exas Industrial Accident] Board." M ,  at 
354-55 (emphasis added).

22



V

/
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). Eat 
see City Of ovatonna v. Chicago , Roc* Island jPacific F-R, S

298 F^Supp. 919, 922 (D. Minn. 1969) (and cases ci'fd therein).’0 
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 when
removal of an Article 78 p r o c s , c l v i f r l g h t r r e m o r a ?  statute
discussed ^  since an Article 78 proceeding Uthe^rescribed
avenue of challenge to administrative ac clause if thata proceeding must be removable under the refusal clause
clause is to be given effect ^ J ^ h e  federal interest in an
Article. 781 proceeding ^may so Predominate as to warrant^the
cases^nvolving^ppeals1*^^ state* PPVr^^ ^te“ t°^ecco quotas imposed

^moval1 Xn tho cases,
however, the local committees ^ere authorized by d l l
^ i c u ^ ^ s ^ ^ ^ f e » = ^ | r ^ - g
the tobacco crop. See pavis v. d°Yner  ̂ 2 Vi? PvnnVars Racinq

- 8C5n d 2tdhe8rl51r> 8 6 3 - ^  ft, Cir._ »5if
s i b i u t r  t ^ t

cert- denied.^ 7  however, we remain dubious
to the wisdom of a general rule permitting the removal of 

Article 78 proceedings. Although several Article 78 
have been removed to courts in this circuit, this specific question
has never been addressed. Obviously, it could be argued that the
ability to remove such proceedings heretofore simply
assumed without the need for extended discussion. We are not so
sure.

23



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 D.S.C. § 1447(c) (i.e., that the 
case was removed improvidently or without jurisdiction). Thermtrgn
Prod. . Inc, v. Hermansdorfer, 423 U.S. 336, 345 & n. 9 (1976). Th^ 
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.- gorcopan 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 Bur ford 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



ftiated 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

noteciJ" ____  _ _ ___ -
Although a federal equity court does have 
jurisdiction of a particular
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 nay be prejudicial to ^ e p u b i i c  
interest" rrmited States ex rel. Greathouse v_f_
^ 2 8 9  U.S. 352, 360 (1933)); for it "is In 
the public interest that federal courts of 
eouity should exercise their discretionary 
power with proper regard for the J^htful 
independence of state governments 
out their domestic policy." [Pennsylvania y^
Will jams. 294 U.S. 176, 185 (1935).]

Burford, 319 U.S. at 317-18 (footnotes omitted). Those concerns

were found to be present in Bufford, 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:
rBurford! abstention is appropriate when a 
federal case presents a difficult issue o_ 
state law, the resolution of which wiU have 
a significant impact on important state 
policies and for which the state has Prov^ ^  
a comprehensive regulatory system with 
channels for review by state courts

me rBurford, 319 U.S.] at 333-34, 63
l CX. at lioT^oir In short, federal courts 
should "abstain from interfering wi 
specialized, ongoing state regulatory
schemes."

25



(

1 lance of American Insurers v. Cuomo. 854 F.2d 591, 599 (2d Cir. 

1988) (quoting L e w  v. Lewis. 635 U.S. 960, 963 (2d Cir. 1980)).

In the case at bar, petitioners seek the incorporation of the 
Village of Mayfair Knollvood, which requires a grant of state 

authority. ^.Y. Const, art. 10, $ 3.; 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 1 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

V  ... . . . .....

26



oposition federal courts should not be 
which the village incorporation process 
unremarkable and inevitable conclusion.

muddying the 
swims seems

waters 
to us

in
an

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," 
amprican 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 Village 
Law;

* 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 
a petition is filed with a town supervisor, again setting 
forth in great detail the hearing requirements, section 2-204;

* it specifically notes what objections may be lodged
a 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;

* it 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 £<.1=1.1 jeview^ of
incorporation election, j and Prov .̂ ..<ons 2-224 to 2-230? and, original election is set aside, sections 2 224 to
finally,
it outlines the formalities of incorporating, the PJ°«Jures

, S S r H ^ ^ ^ c n s  “ d232thto S 3 *
If 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 Hew York's "complex 

administrative and judicial system for regulating and liquidating 

domestic insurance companies." levy- 635 F.2d at 
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. fiurfold, 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 
addressing 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 1 n— of 

Texas v. Pullman. 312 U.S. 496 (1941)). See also Levy, 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

11 We add that the existence of these purely state 
administrative issues places this case in a posture far different 
from that found in Gomil1ion 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 ltimately before the Supreme Court). The

further in support of abstention.12
M  concludes. In words equally applicable here:

The claims [in Buried] amounted to an attack 
on the reasonableness of the s^a^e

^  administrative action. Thus ^ e r a l

^ ^ 3 ^ S t e ^ t i ^
creating* i S S S S S s * ! ? t h .  ^ i K s ? ? a t i o / o f  
S e  state scheme • of % S ? e
officialseS«fd the expeditious and evenhanded

12 The Supreme Court has ob s ® \ n vh^ch federal courts
of abstention are not rigid Px9®° ^  reflect a complex of
must try to fit cases ™ £ ions inherent in a systemconsiderations designed to soften th esses>„ ppnn7,oii Co.
that contemplates parallei judi ‘ ^  P ^ 9 (1987). Thus, although
Texaco^ Inc^, 107 S. Ct. ±__ ^  Rurf0rd considerations, the
this case is governed largely Y P certainly is relevant.
existence of ^ l ^ n o t e  9 however, there do existNotwithstanding Pennzoxl s footno ' “ the "various types of
important procedural difference:s hent the product of Burfordabstention. " Pertinenthere w e n o ^  t h a ^  Pfederal ^
abstention is dismissal, ^ hl^e the federal court retaining
issues may be bifurcated ^ \ h^ it^ n t s  allowed the option 
jurisdiction over the former a _ddress the federal concernsif returning to that forum to ^ d r e s s . t n e^i^ ot Medical
following state review. -Fnq1an (1964)^ ^  Harris CountyE^miners, 375 U.S. 411, *21-22 (1964^. & _  ̂—  15) (dismissal
Comm1rs Court v. Moore, 420 U.£ . ' to remove obstacles to
in Pullman case appropriate if neces ry bifurcate the
state court jurisdiction) . ^  makes n o since to do so
federal and state issues in tbl* i n  ' Law's scheme of providing 
would potentially frustrate th® . 9 { incorp0ration petitions,
for complete and expeditious review ^ * T ° e ? e n t s  of section 2- 
Further, consistent with the s?™  bringing a new Article
210(4)(b) of the Village bh® t issues would be substantial
78 proceeding to address solely ,. arcruably rendering that
(given the number of parties in the
"solution" inequitable. Sinces Bu the proceeding whole and
instant proceeding, we choose to P ... was emphasized
remand the entire matter to _ state court whlch' as w * the
in both Burford and Levy, is entirely ®°mP ^ n£e reached) .First Amendment issue asserted here (if it need be re

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 
forj^xpedited 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.

Conclusion

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 froni whence it was 

removed, the New York Supreme Court for Westchester County.

SO ORDERED.

Dated: White Plains, N.Y.
April /O , 1989April !* )

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

31



(212) 373-3234 February 10, 1989

Hon. Gerard L. Goettel 
United States District Court for 
the Southern District of New York 

United States Courthouse 
101 East Post Road 
White Plains, New York 10601

Matter of Greenberg v. Veteran 
______89 Civ. 0591 (GLG^______

Dear Judge Goettel:
On behalf of all removing respondents, I am submit­

ting a copy of our additional memorandum in support of 
removal.

I also enclose a copy of the first amended and 
supplemental complaint in the related case of Jones v. 
Deutsch, 88 Civ. 7738 (GLG), served pursuant to Your Honor's 
instruction at the February 2, 1989 conference.

Respectfully,

Jay L. Himes
Enclosures
cc: All Counsel
BY HAND
bcc: Homeless Team and Counsel



(212) 373-3234 February 10, 1989

Jonathan Lovett, Esq. 
Lovett & Gould 
180 East Post Road 
White Plains, NY 10601
Timothy Quinn, Esq. 
Quinn & Suhr 
170 Hamilton Avenue 
White Plains, NY 10601

Paul Agresta, Esq. 
P.O. Box 205 
Elmsford, NY 10523

Jones v. Deutsch
Dear Counsel:

In accordance with the Court's instruction at the 
February 2, 1989 conference, I enclose a copy of our first 
amended and supplemental complaint. This pleading is identi­
cal in form to that submitted on our motion for leave to 
amend. The only changes are in paragraph 5, where two 
additional homeless families have been added as plaintiffs, 
and in the caption and paragraphs 57 and 59, where corre­
sponding additions are made.

Sincerely,

Jay L. Himes
Enclosure 
BY HAND
bcc: Homeless Team and Counsel