Westchester Supreme Court Judge Susan Cacace dismissed April 26 an Article 78 lawsuit filed against Greenburgh Town Supervisor Paul Feiner’s decision to deny a petition from the Edgemont Incorporation Committee for a referendum on Edgemont Incorporation.

The lawsuit, filed by retired Greenburgh police officer Keith Guerra, current police officer Robert Gramaglia and Edgemont resident Don Siegel, claimed Feiner denied the petition for the wrong reasons.

According to Feiner, the petition was invalid because the EIC did not have enough signatures on the petition, some of the signatures they had were invalid and the petition did not clearly state the boundaries of the proposed village of Edgemont.

Siegel, Guerra, and Gramaglia — legally referred to as the Guerra petitioners — believed the petition was actually invalid because it was not correctly fastened together. This, according to the petitioners, meant everyone who signed the petition did not see all the papers associated with the petition.

From the moment the Guerra petitioners filed the lawsuit, Robert Bernstein, an attorney representing the EIC in its Article 78 suit challenging Feiner’s decision, called the suit collusive, meaning it was designed to, in essence, back up Feiner’s decision to deny the EIC petition if the judge sided with the EIC on the matter. In a motion to dismiss the Guerra Article 78, the EIC argued, if Cacace ruled in favor of Feiner in the EIC’s appeal, the Guerra petition would have been moot.

In other words, Feiner’s reason to deny the EIC petition would stand.

Bernstein denounced the lawsuit because both sides in the second Article 78, the Guerra petitioners and Feiner, wanted the same thing, the invalidation of the petition.

According to Cornell Law School, a collusive lawsuit is one in which “the parties are not actually in disagreement, but are cooperating to steer the court toward some agreed-upon conclusion.”

A collusive lawsuit is illegal.

The questions surrounding the Guerra lawsuit only grew after Cacace ruled in favor of the EIC, vacating and annulling Feiner’s decision.

In their lawsuit, the Guerra petitioners asked Cacace render a decision “annulling the decision of Supervisor Feiner determining that all copies of the petition for incorporation circulated for signature had all attachments and certifications ‘securely fastened together’ when presented to residents for their signatures.”

Since Cacace annulled Feiner’s denial of the petition in her decision on the EIC Article 78, she felt there was no need for the Guerra lawsuit to continue.

In fact, in a Feb. 13 meeting with the Guerra petitioners, town officials and EIC representatives, Cacace asked the Guerra petitioners to stop the lawsuit.

White Plains-based attorney Thomas Troetti, the attorney representing the Guerra petitioners, notified Cacace Feb. 20 his clients would not be dropping the suit.

Later that day, Cacace sent out an order allowing the EIC to file a second motion to dismiss on the argument the Guerra lawsuit was now moot. This means the EIC would be allowed to argue the Guerra lawsuit should be dismissed since Cacace’s Feb. 1 decision, which annulled Feiner’s denial of the petition, rendered the Guerra lawsuit moot.

The order also instructed the Guerra petitioners to file a reply to the EIC’s motion to dismiss.On a related note, Hugh Schwartz and Janet Linn, Edgemont residents who do not favor incorporation, filed a brief challenging the EIC’s first motion to dismiss the Guerra lawsuit.

In an interview with The Inquirer, they pointed out incorporation opponents originally brought the fastening argument to Feiner during a May 2017 public hearing on the petition.

Feiner decided to officially reject that argument in his decision to deny the petition.

Schwartz and Linn argued the Guerra petitioners have the right to challenge that rejection in court.

Judge Cacace did not agree.

“In sum, this court is not in the business of expanding limited judicial resources to satisfy the unreasonable desires of parties who got what they wanted, but did not get it the way that they wanted it,” Cacace wrote in her decision.

Schwartz and Linn released a joint statement to The Inquirer on the decision.

“We are disappointed in the decision, which we think is clearly wrong, but we are not surprised,” they said. “As you may recall, the Judge’s [principal law] clerk George Hlapatsos had discussed the decision with the Scarsdale Inquirer even before the court conference, at which the court invited the intervenors to file this second motion to dismiss.”

The Inquirer conducted an interview with Hlapatsos in early February in which he alluded to the court’s belief the Guerra petitioners should not continue their case.

Hlapatsos told The Inquirer, Cacace already annulled Feiner’s entire decision in her Feb. 1 judgment.

“Why would you continue to consider that action if you already got what you want,” Hlapatsos said.

In statement to the Inquirer, Bernstein expressed his pleasure with Cacace’s dismissal.

“This is yet another important milestone along Edgemont’s march toward incorporation,” he said. “The second collusive lawsuit, which should never have been brought in the first place, has at long last been dismissed.”The Inquirer attempted to reach out to Troetti but the number listed for his law practice was not in service at press time.

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