Doe v. Zucker et al
Filing
163
ORDER granting 120 Motion to Intervene IT IS SO ORDERED. Signed by Magistrate Judge Christian F. Hummel on 2/24/2020. (khr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN DOE,
Plaintiff,
v.
1:17-CV-1005
(GTS/CFH)
HOWARD ZUCKER, M.D.,
Defendant.
APPEARANCES:
OF COUNSEL:
O’CONNELL, ARONOWITZ LAW FIRM
54 State Street, 9 th Floor
Albany, New York 12207-2501
Attorneys for plaintiff
JEFFREY J. SHERRIN, ESQ.
CONSTANTINE, CANNON LAW FIRM
335 Madison Avenue, 9th Floor
New York, New York 10017-4611
Attorneys for defendants
ROBERT LOUIS BEGLEITER, ESQ.
ARNOLD & PORTER KAYE SCHOLER LLP ANGELA VICARI, ESQ.
250 West 55th Street
New York, New York 10019
Attorneys for proposed intervenor-respondents
MEMORANDUM-DECISION & ORDER
Presently pending before the Court is a Motion to Intervene filed pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 24(a)(2) on behalf of proposed
intervenor-respondents Lauren Berghorn and Diana Vila . Dkt. Nos. 120-122. For the
following reasons, the Motion to Intervene is granted.
I. Background
Before this matter was transferred from state court, three intervenor-respondents
– Ruth Rivera, Eric Scoff, and George Iwczenko (“original intervenors”) – were
permitted to intervene. On September 27, 2018, petitioner filed a motion to dismiss the
original intervenor-respondents from the action. Dkt. No. 64. On October 29, 2018, the
original intervenor-respondents opposed petitioner’s motion. Dkt. No. 75. On
November 12, 2018, petitioner filed a reply. Dkt. Nos. 78-81. On January 4, 2019, the
Court denied petitioner’s Motion to Dismiss the original intervenors, except that
intervenor-respondent Rivera was dismissed from the action by stipulation. Dkt. No. 81.
In so holding, the Court ruled, as relevant here, that the original intervenors could
intervene as of right under Rule 24(a) as (1) the motion to intervene was timely; (2) the
intervenors have an interest in the subject matter of the litigation as they “are persons
with serious mental illness who reside in transitional adult homes and therefore would
be impacted by implementation of the challenged regulations; and (3) if the intervenors
were not permitted to intervene, “they might be impaired from protecting their interests,
which the original parties to this action would not adequately represent.” Dkt. No. 81 at
22-24. Since the issuance of that Decision, intervenors Rivera and Scott withdrew from
this action as they transitioned from adult homes to supportive housing, and intervenor
Iwczenko was withdrawn from the action due to his failure to participate. Dkt. Nos. 103,
108, 110.
II. Legal Standard
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As this Court has previously set forth at length, motions to intervene are
governed by Fed. R. Civ. P. 24(a). In their motion to intervene, the proposed
intervenor-respondents specifically invoke Rule 24(a)(2) and seek to intervene as of
right.
Generally, intervention as of right under Fed. R. Civ. P. 24(a)
is granted when all four of the following conditions are met:
“(1) the motion is timely; (2) the applicant asserts an interest
relating to the property or transaction that is the subject of
the action; (3) the applicant is so situated that without
intervention, disposition of the action may, as a practical
matter, impair or impede the applicant’s ability to protect its
interest; and (4) the applicant’s interest is not adequately
represented by the other parties.” MasterCard Int’l Inc. v.
Visa Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006).
Generally, permissive intervention under Fed. R. Civ. P.
24(b) “may be granted when an applicant’s claim or defense
and the main action have a question of law or fact in
common,” and when intervention will not “unduly delay or
prejudice the adjudication of the original parties’ rights.”
AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561-62 (2d Cir.
2005); FED. R. CIV. P. 24(b)(3).
Dkt. No. 81 at 13. “The burden is on the individual seeking to intervene to show that
their interests are not adequately represented by the existing parties to the case.”
Hoblock v. Albany Cty. Bd. of Elections, 233 F.R.D. 95, 97 (N.D.N.Y. 2005) (citing
United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir.1994)).
Further,
The Second Circuit has instructed that, when determining
whether a motion to intervene was timely, courts should
consider (a) the length of time the movant knew or should
have known of his interest before making the motion, (b)
prejudice to the parties resulting from the movant’s delay, (c)
prejudice to the movant if the motion is denied, and (d) the
presence of any unusual circumstances mitigating for or
against a finding of timeliness. Farmland Dairies v. Comm’r
3
of N.Y. State Dep’t of Agric. & Markets, 847 F.2d 1038,
1043-44 (2d Cir. 1988).
Dkt. No. 81 at 21. “A district court of the United States is vested with broad discretion to
decide both the timeliness of a motion for intervention . . . .” Holblock, 233 F.R.D. at 98.
“Indeed, ‘[a] district court has broad discretion in assessing the timeliness of a motion to
intervene, which “defies precise definition.’ The Court also has considerable discretion
when considering a motion to intervene as of right, since the Second Circuit Court of
Appeals reviews determinations as to motions for intervention under the abuse of
discretion standard.” Holblock, 233 F.R.D. at 98 (quoting Union Switch & Signal, Inc. v.
St. Paul Fire and Marine Ins. Co., 226 F.R.D. 485, 488 (S.D.N.Y.2005) (additional
citations and internal quotation marks omitted)).
III. Discussion
A. Arguments
Proposed intervenor-respondents Berhorn and Vila argue that they must be
permitted to intervene “[t]o ensure that the interests of persons who reside in
transitional adult homes will continue to be protected[.]” Dkt. No. 122 at 3. T he
proposed intervenor-respondents provide that they currently reside in privately-owned
adult homes in Brooklyn and Queens, respectively. Id. at 5. They support the
regulations “because they prevent their transitional homes, as well as other similar adult
homes, from accepting new residents with serious mental illness so long as those
homes already have a sufficient high number of residents with mental illness, in
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violation of the ADA’s mandate of integration.” Id. The proposed intervenorrespondents aver that they “‘seek opportunities to socializ[e] with a diverse group of
residents, engage in productive activities, and participate more fully in an integrated
environment that reflects the community at large.’” Id. at 6. The proposed intervenorrespondents first argue that their motion to intervene is timely as it “is being filed in
accordance with the timeliness set by this Court. . . . [p]ursuant to an agreed-upon
extension . . . to add new parties[.]” Id. at 7. Further, proposed intervenor-respondents
argue that they timely submitted their motion in accordance with the deadlines set at
the pre-motion conference. Id. The proposed intervenor-respondents argue further
that their intervention would not cause petitioner prejudice. Id. Instead, they contend
that they “effectively seek to substitute for the Original Intervenors, two of whom could
no longer be intervenors because they moved from traditional adult homes to supported
housing.” Id. at 8. The proposed intervenor-respondents contend further that their
argument is supported by the status of the case at the time they filed their motion:
“[a]lthough document discovery is underway, no depositions have been taken or
scheduled to date and discovery is not set to close until January 31, 2020.” Id.
Next, the proposed intervenor-respondents assert that they have a sufficient
interest in the subject matter of the action and that their interest is the same as the
original intervenors, for whom the Court concluded there was a sufficient interest. Dkt.
No. 122 at 8-9. Specifically, they argue that because the challenged regulations “limit
the admission of persons with serious mental illness into impacted adult homes to avoid
worsening the degree to which adult homes are de facto psychiatric institutions . . . . As
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long as the [proposed intervenor-respondents] continue to resident in an adult hom e,
they have an interest in – and a right to – live and receive services in an integrated
setting.” Id. at 9.
Next, the proposed intervenor-respondents argue that the third factor applies as
well because this action may impair/impede their ability to protect their interests. Dkt.
No. 122 at 9. The proposed intervenor-respondents reference this Court’s conclusion
that “a ruling in this action that the challenged regulations are arbitrary and capricious
would impact [the Original Intervenors] and deprive them of any recourse to otherwise
challenge such a determination.” Id. (citing dkt. no. 81 at 23). The proposed
intervenor-respondents argue that any decision in this action could “severely diminish or
eliminate the Intervenors’ ability to defend the Regulations and to secure their rights
under the ADA to receive their public services in the most integrated setting appropriate
to their needs.” Id. at 10. Additionally, the proposed intervenor-respondents contend
that they “stand to be personally harmed if the Regulations are nullified” as that would
result in “the dismantling of a key component of Respondents’ apparatus for meeting
the Olmstead mandate, and the limitation on the unfettered admission of residents with
serious mental illness into adult homes will be swept away[.]” Id.
Next, the proposed intervenor-respondents contend that their interests are not
adequately represented by the existing parties. Dkt. No. 122 at 10. The proposed
intervenor-respondents again point to this Court’s January 4, 2019 decision noting that
it was “not wholly convinced” that the existing parties could adequately represent the
original intervenors’ interests” and argue that [n]othing has changed since the Court
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issued the Order.” Id. at 10-11. More specifically, proposed intervenor-respondents
note that respondents “did previously stipulate to a TRO that suspended the protections
of the Regulations – very much to the detriment of the Original and Proposed
intervenors.” Id. at 11. Further, they argue, “[t]here is no guarantee that,
notwithstanding their current efforts, Respondents will continue to take positions
intended to enforce the Regulations in a manner that effectively preserves the
Olmstead protections afforded to the residents of adult homes with serious mental
illness.” Id.
In response, petitioner contends that the f act that the state court granted the
original intervenors’ motion to intervene and that the Court denied the motion to dismiss
the original intervenors is not dispositive as to whether the proposed intervenorrespondents’ motion should be granted. Dkt. No. 127 at 11. Petitioner argues that
proposed intervenor-respondents’ motion is untimely. Whereas the original intervenors
joined the case in August 2017, when the matter was before the State Supreme Court,
the proposed intervenor-respondents sought to intervene in May 2019. Id. at 9-10.
Petitioner argues that, unlike with the original intervenor-respondents, who intervened
when “‘little ha[d] yet occurred in this litigation,’ the action has progressed and is now
well into active discovery.” Id. at 11 (citing dkt. no. 81 at 22). Petitioner contends that
the proposed intervenor-respondents knew or should have known of their interest long
before they moved to intervene – that proposed intervenor-respondent Berghorn knew
by July 2018, when she moved into an adult home, and Vila by September 2014, when
she sought to intervene in a related case. Id. at 13. Petitioner also contends that ev en
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if the proposed-intervenor respondents assert that they were unaware of the litigation,
knowledge can still be imputed. Id. at 14. Further, petitioner argues that there is no
good cause for the delay. Id.
Next, petitioner contends that he would be prejudiced by the intervention. Dkt.
No. 127 at 15. To grant the motion, petitioner argues, would result in additional
discovery and delay, as such is demonstrated by counsel’s past actions with the original
intervenors and the possibility that the proposed-intervenor respondents will eventually
withdraw should their circumstances change, which is likely due to the proposedintervenor respondents’ expressed desire to leave their adult home settings. Id. at 1718.
Petitioner further asserts that the proposed-intervenor respondents’ interests do
not justify intervention. Dkt. No. 127 at 18. Petitioner argues that the proposedintervenor respondents’ desires have “evolved” from seeking to move out of her adult
residence and newly assert that they have an issue with the ‘high number of residents
with serious mental illness’” in their adult homes. Id. at 19. Insofar as the proposedintervenor respondents express that this action could prevent them from moving out of
their adult homes under the terms of the Federal Settlement agreement, “those rights
are not implicated by this litigation” as the “Challenged Regulations are not needed to
give effect to the Federal Settlement.” Id. at 20-21. Further, the regulations “bar[]
certain persons from moving into adult homes, while the Federal Settlement aims to
benefit adult home residents who wish to move out.” Id. at 21. Thus, petitioner argues
that the State’s obligations under the federal settlement “are clearly unaffected by any
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outcome of this proceeding or other pending state actions challenging the Department
of Health regulations.” Id. Petitioner also argues that the proposed intervenorrespondents’ “purported interest consist mostly of nonspecific, conclusory language that
relies on a string of inferences based on negative stereotypes about persons with
serious mental illness” and that their allegations that the regulations “would protect their
right to live with ‘a more diverse group of residents who are not all equally challenged
with mental illness,’” the proposed intervenor-respondents ‘have been free to exercise
this right at any time by simply moving to a different adult home or into supportive
housing.” Dkt. No. 127 at 22. Thus, petitioner suggests, this “mismatch between
Proposed Intervenors’ purported interests and their action suggests that a litigation
agenda driven not by the intervenors, but by attorneys who sought out clients and
created boilerplate affidavits for the Proposed Intervenors to endorse.” Id. at 22-23.
Next, petitioner asserts that the proposed intervenor-respondents’ interests are
adequately represented as they “do not state what they could or would do differently
from, or in addition to, the State’s participation” and do not “ex plain why the
Respondent is not capable to defending the Challenged Regulations that the State has
promulgated.” Dkt. No. 127 at 23. Petitioner avers that differing motives or “litigation
tactics” between respondent and proposed intervenor-respondents does not mean
inadequately represented interests as the sought outcome is the same. Id. Further,
petitioner argues that any interest the proposed intervenor-respondents have in
protecting their rights under the federal settlement “are not implicated by this litigation”
and “fully protected by O’Toole and the measures already in place to ensure that the
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mandates of the Federal Settlement are carried out by the State.” Id. at 24.
Finally, petitioner urges the Court, if it were to grant the motion to intervene, to
first “order discovery and/or an evidentiary hearing to determine Proposed Intervenors’
actual interests in this litigation” as “there is reason to believe that this intervention is
being driven by counsel.” Dkt. No. 127 at 25. Petitioner contends that discov ery
“should be conducted to explore the veracity of Proposed Intervenors’ allegations
regarding their physical, medical, and mental health circumstances, their suitability for
transitioning to supported housing, and their reasons for continuing to reside in their
adult homes.” Id. In so urging, petitioner points to “the way that Proposed Intervenors’
asserted interests and participation in this litigation have apparently been shaped by
counsel[,]” and argue that such discovery would help to “avoid a repeat of the role
played by Original Intervenors” and “further waste of resources.” Id. at 26.
In reply, the proposed intervenor-respondents again argue that timeliness is not
an issue in this case because the motion was submitted within the confines set by the
Court. Dkt. No. 132 at 3. Proposed intervenor-respondents suggest an intent by
petitioner’s counsel “to leave the Proposed Intervenors’ interests unprotected and make
the voice of Mr. Doe, a former adult home resident, the only voice that is heard.” Id.
Further, the proposed intervenor-respondents repeat that petitioner would not be
prejudiced because of the early stages of discovery at the time they filed their motion.
Id. at 4-5. Finally, proposed intervenor-respondents argue against an evidentiary
hearing, contending that it would “put[] the proverbial cart before to horse” and if the
motion were granted, they will participate in discovery as required by the Federal Rules.
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Id. at 7.
B. Analysis
Petitioner repeats many of arguments that he presented in his motion to dismiss
the original intervenors: (1) because the regulations do not prevent the original
intervenors to move from transitional adult homes to supported housing, they will not
suffer an injury-in-fact if the challenged regulations are enjoined or declared
unconstitutional; (2) the motion was untimely because the original intervenors has long
known about their interests in this case as they had been residents in transitional adult
homes for years; (3) petitioner will be prejudiced due to delay caused by an intervention
of new persons; (4) respondents can adequately represent the original intervenors’
interests; (5) the original intervenors do not have a sufficient interest in the litigation
because the regulations do not impact their right to move into supported housing; and
(6) the original intervenors’ changing theories in the case since originally seeking to
intervene suggest it is the interest of the original intervenors’ lawyers, not the
intervenors, to pursue this litigation. See Dkt. No. 81 at 4-5, 8; Dkt. No. 122; Dkt. No.
132.
In the January 4, 2019 Decision & Order, the Court held that the original
intervenor-respondents could be said to have known, or that they should have known,
about their interest in this litigation in November 2016, when the current challenge to
these regulations occurred, or in February 2017, when the temporary restraining order
“TRO”) was issued enjoining the regulations. Dkt. No. 81 at 22. As the original
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intervenors sought to intervene in June 2017, the Court held that the req uest to
intervene “was not filed an excessive time after when [the original intervenors] knew or
should have known of their interest in this case.” Id. Proposed intervenor-respondents
now argue, as noted above, that because they filed their motion within the deadline set
by the Court and agreed upon by petitioner, it cannot be said that the motion is
untimely. Dkt. No. 132 at 3 (Arguing that petitioner “cannot[] dispute the timeliness of
this Motion under the schedule for this action.”). Further, they point out that, at the time
the filed the motion to intervene, discovery was at its early stages. See Dkt. No. 120.
Here, the proposed intervenor-respondents filed the motion to intervene on June
3, 2019, two years and seven months after the petition was filed in state court, and two
years and four months after the TRO was issued. This is a far greater period of time
than with the original intervenor-respondents, who sought to intervene approximately
seven months after the action was commenced and just four months after the TRO was
issued. See Dkt. No. 81 at 22. Further, as petitioner arg ues, proposed intervenorrespondent Vila “unquestionably had knowledge of her interests due to her participation
in the Residents & Families litigation in which she was represented by the same
counsel who represent Original & Proposed Intervenors in this case.” Dkt. No. 127 at
14. That the motion to intervene was filed within the Court’s deadline for joinder of
parties does not, alone, warrant a conclusion that the motion is timely. See, e.g., Beam
v. HSBC Band USA, No. 02-CV-0682E(SR), 2004 WL 944522, at *1 (W.D.N.Y. Mar.
30, 2004) (“Determining whether a motion to intervene is timely is determined from the
totality of the circumstances and is within the sound discretion of the trial judge.”)
12
(citation omitted).
Applying the standard previously applied by this Court in its January 2019
Decision, the proposed intervenor-respondents knew, or can be presumed to know, of
the action at the time it was commenced in November 2016, or, at the latest by
February 2017, at the time the TRO was entered. Both proposed intervenorrespondents were living in their current residences by that time, and proposed
intervenor-respondent Villa was long-engaged in related litigation. Thus, although
proposed-intervenor respondents’ motion to intervene was filed within the deadlines set
by this Court, it cannot be said the motion is truly timely given the long history of this
case and the proposed intervenor-respondents’ knowledge (or imputed knowledge) of
their interest in this litigation. Consequently, this factor weighs largely in favor of denial.
See, e.g., Beam, 2004 WL 944522, at *1 (finding the motion to intervene to be untimely
where the party seeking to intervene had notice of the action the months before filing
the motion to intervene, and the matter was highly publicized, leading the Court to
conclude that the proposed intervenor had constructive notice fifteen months before
seeking to intervene) (citing Jones v. Richter, 97-CV-0291E(M), 2001 WL 392079, at *1
(W.D.N.Y. 2001) (affirming denial of motion to intervene as untimely where it was filed
more than two years after the action was commenced) and United States v. Pitney
Bowes Inc., 25 F.3d 66, 70 (2d Cir.1994) (affirming denial of motion to intervene on
ground of untimeliness where intervenor filed motion for intervention eight months after
becoming aware of the action and fifteen months after having constructive notice of the
action) (additional citation omitted)).
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Proposed intervenor-respondents next contend that petitioner has no basis to
conclude that intervention would cause him prejudice. Dkt. No. 122 at 7; Dkt. No. 132
at 4-5. However, unlike at the time the Court granted the motion of the original
intervenors, this case has progressed significantly. Although, at the time the motion
was filed, the discovery deadline was seven months away and depositions had yet to
occur, discovery was still underway. Furthermore, discovery in this matter is now
closed. It is likely that petitioner will suffer some prejudice due to greater delay in this
action due potential that the proposed intervenor-respondents will seek to re-open
discovery or, similarly, the need for petitioner to depose them. The Court cannot agree
with the characterization of the proposed intervenor-respondents that they are simply
“substitut[ing]” for the original intervenors. Dkt. No. 122 at 8; see also dkt. no. 132 at 4
(contending that “[t]he particular identity or medical condition of the Intervenors is
irrelevant to the interests of adult home residents to live and receive services in an
integrated setting that is not a de facto psychiatric institution.”). The new proposed
intervenor-respondents will require separate and additional discovery and will have at
least some interests that differ from the original intervenors’ interests.
Balancing the prejudice to petitioner due to delay should the motion be granted
is the Court’s acknowledgment that it recently granted petitioner’s Motion to Amend,
dkt. no. 160, which necessarily will cause some delay resulting from additional, albeit
limited, discovery. It is also the case that, should this Court deny the motion to
intervene, as the Court found in its January 2019 Decision & Order, a
ruling striking down the challenged regulations as arbitrary
and capricious would impact not only Petitioner’s rights but
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the rights of all persons with a serious mental illness who
live in a transitional adult home, including the
Intervener-Respondents. By allowing them to remain in this
action, the Court ensures that their demonstrated rights and
interests are represented where the outcome may have such
far-reaching effects.
Dkt. No. 81 at 22. Accordingly, although there would be some prejudice to petitioner
should the potential intervenor-respondents’ motion be granted, it cannot be said that
prejudice to petitioner would outweigh the potential prejudice to the proposed
intervenor-respondents should the outcome of this litigation result in a conclusion that
results in a conclusion that the challenged regulations cannot stand.
The Court further finds that the proposed intervenor-respondents have an
interest in the subject of this litigation for the same reasons as found in the January
2019 Decision & Order. Dkt. No. 81. Although the proposed intervenor-respondents are
individuals with a serious mental illness –and, as petitioner suggests, could potentially
be barred from their current living situations should the regulations be permitted and the
injunction be repealed – it does not necessarily follow that their interest in preventing a
greater number of other individuals with serious mental illness from residing in their
adult homes is not a significant interest. The proposed intervenor-respondents
expressed a desire to prevent their chosen living environments from becoming “de facto
mental institutions” and prevent them from “receiv[ing] their public service in the most
integrated setting appropriate to their needs.” Dkt No. 122 at 10. Sim ilarly, the Court
finds that declining the proposed intervenor-respondents the right to intervene may
impair them from adequately protecting their interests. As indicated, should this Court
conclude that the regulations are arbitrary and capricious, additional persons with
15
serious mental illness could presumably move into the proposed intervenorrespondents’ homes, resulting in the more limiting environment that the proposed
intervenor-respondents indicate they seek to avoid. Further, like the Court noted in its
January 2019 Decision & Order, a conclusion by this Court could “deprive them of any
recourse to otherwise challenge such a determination.” Dkt. No. 81 at 23.
Lastly, the Court cannot currently conclude that respondent will adequately
represent the proposed intervenor-respondents’ interests for the same reasons
expressed in the Court’s January 2019 Decision & Order. Dkt. No. 81 at 24. Although
respondent seeks to uphold the regulations – an interest also reflective of the proposed
intervenor-respondents – as proposed intervenor-respondents note, respondent agreed
to the TRO which allows adult homes with a high concentration of individuals with
serious mental illness to continue admitting such individuals. The Court acknowledges
respondent’s statement that the “decision to consent to the T RO on February 16, 2017,
does not demonstrate that it is forever unwilling to defend the Challenged Regulations”
and that it “is engaged in active litigation in multiple courts defending the Challenged
Regulations,” dkt. no. 127 at 24, but the Court still f inds that “their interests remain
different enough that Respondent[] might not adequately represent their unique
interests.” Dkt. No. 81 at 24. Further, the fact that the proposed intervenorrespondents can move out of their current adult homes and into other living
environments, dkt. no. 127 at 18, 20-21, does not f ully address the Court’s concern as it
does not protect their interests should they choose to remain in their current living
sitautions. Based on the totality of the circumstances and careful consideration of all of
16
the required factors, the Court finds that these proposed intervenor-respondents meet
the standard for intervention as of right under Rule 24(a)(2).
Therefore, the Court declines to hold an evidentiary hearing at this time to
determine the “actual interests” of the proposed intervenor-respondents. Dkt. No. 127
at 25-27. The intervenor-respondents have expressed their desires through signed and
sworn affidavits. Dkt. No. 121-1; Dkt. No. 121-2. Further, the Court has reviewed, and,
thus, is cognizant, of the sealed submissions provided to the Court. This question of
the proposed intervenor-respondents’ credibility is one that can be explored at the
appropriate juncture if needed.
Finally, although the Court finds that the motion to intervene cannot be said to
have been timely – despite being filed within the Court’s deadline for joinder – it is
within the Court’s discretion to balance the question of timeliness against the remaining
factors. Following full consideration of all factors, for the reasons discussed herein, the
balance weighs more heavily in permitting intervention. In so doing, the Court seeks to
make clear that it does not intend to allow this litigation to act as a revolving door for
intervenors. Allowing the current motion to intervene to proceed should not been seen
as indicative of the Court’s flexibility to permit further intervenors in the future should the
current proposed intervenor-respondents choose to withdraw. Indeed, any future
proposed intervenors would be hard-pressed to get beyond the timeliness hurdle, which
would be an even more significant impediment going forward. The deadline for joinder
of parties is long past expired, discovery is closed, and this action is now over three
years old. Thus, questions of timeliness and prejudice to petitioner would likely be
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significantly more difficult to overcome in any potential attempts at intervention.
III. Conclusion
After carefully reviewing the entire record in this matter, the parties' submissions
and the applicable law, and for the above-stated reasons, it is hereby
ORDERED, that the motion of proposed intervenor-respondents to intervene in
this action, dkt. no. 120, is GRANTED; and it is further
ORDERED, that the Clerk of the Court serve this Memorandum-Decision &
Order on the parties in accordance with Local Rules.
IT IS SO ORDERED.
Dated: February 24, 2020
Albany, New York
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