Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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25 WANSER LLC, and

40 BAYVIEW LLC,

ORDER

Plaintiffs, 25-CV-5824(JS)(AYS)

‑against‑

THE TOWN OF HEMPSTEAD,

THE TOWN BOARD OF THE

TOWN OF HEMPSTEAD, and

JOHN/JANE DOE #1 through

JOHN/JANE DOE # 10,

Defendants.

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APPEARANCES

For Proposed

Intervenor Martin

Oliner: Stephen Wagner, Esq.

M. David Possick, Esq.

Cohen Tauber Spievack & Wagner P.C.

420 Lexington Avenue, Suite 2400

New York, New York 10170

For Defendants

Town of Hempstead

and the Town

Board of the Town

of Hempstead: Stanley A. Camhi

Jaspan Schlesinger Narendran LLP

300 Garden City Plaza, 5th Floor

Garden City, New York 11530

SEYBERT, District Judge:

Pursuant to Rule 72(b) of the Federal Rules of Civil

Procedure, Proposed Intervenor Martin Oliner (“Proposed

Intervenor”) objects to Magistrate Judge Anne Y. Shields’s May 26,

2026 Report and Recommendations (“R&R,” ECF No. 41), which

recommends denying Proposed Intervenor’s Motion to Intervene. (See

Obj., ECF No. 43; see also Motion, ECF No. 26; Support Memo, ECF

No. 26-1.) Plaintiffs 25 Wanser LLC and 40 Bayview LLC

(“Plaintiffs”) and Defendants Town of Hempstead and Town Board of

the Town of Hempstead (“Defendants,” collectively with Plaintiffs,

the “Parties”) oppose the Motion and have filed separate replies

to Proposed Intervenor’s Objection.1 (See Opp’n, ECF No. 42;

Defs.’ Reply, ECF No. 44.) Because Proposed Intervenor has not

identified a protectable interest warranting intervention as of

right or a persuasive basis for permissive intervention, the Court

OVERRULES his Objection and DENIES the Motion.

BACKGROUND

I. Facts

As Judge Shields provided in the R&R:

Plaintiffs, 25 Wanser LLC and 40 Bayview LLC

(“Plaintiffs”), are real estate developers who

seek to build a 300-plus unit mixed-use

residential building in North Lawrence, New

York (the “Project”). (Compl. ¶ 29.) On May

27, 2019, Defendant Town of Hempstead (the

“Town”), through Defendant The Town Board of

the Town of Hempstead (the “Board”), adopted

1 On June 23, 2026, Plaintiffs filed a Reply. (See ECF No. 45.)

The Reply was filed by Attorney Colleen P. Collins, the Chief

Legal Officer of Plaintiffs, who has not filed a Notice of

Appearance in this Action. Plaintiffs have counsel of record,

who did not file a Reply. Accordingly, Plaintiffs’ Reply has

not been considered by the Court.

legislation entitled “Transit Oriented

Development and Related Districts for North

Lawrence and Inwood[”] (the “TOD Ordinance”),

which established a Transit Oriented

Development District (“TOD District”)

permitting mixed-use, high density

residential developments in a 73.2-acre area

in the overlay district of North Lawrence and

Inwood. (Id. ¶¶ 26-27, 45.) The TOD Ordinance

provided for an expedited approval process for

applicant developers, which was intended to

reduce project time and costs. (Id. ¶ 56.)

Over the next three years, and in reliance on

the TOD Ordinance, Plaintiffs sought to

advance their development plans in the TOD

District, ultimately submitting their project

application with the Town on February 18,

2022. (Id. ¶¶ 60-74.) During that time,

however, it became apparent to the Town that

the review procedure set forth in the TOD

Ordinance was insufficient to ensure that a

“hard look” was taken regarding the

environmental impacts that the high-density,

mixed-use development would have on the local

community and surrounding areas. (Def. Mem. of

Law 5.) On September 20, 2022, the Town

enacted a moratorium on development in the TOD

District and retained the services of Nelson

Pope Voorhis, an environmental planning firm,

to conduct a further review and analysis of

the TOD Ordinance. (Compl. ¶¶ 91, 110.)

The moratorium was set to expire on June 18,

2024. Prior to its expiration, on June 2,

2024, the Board scheduled a public hearing on

a proposed action to repeal the TOD Ordinance

while allowing previously submitted project

applications, such as Plaintiffs’, to still be

considered (the “Grandfathered-In Clause”).

(Id. ¶ 109.) On November 19, 2024, the Board

voted unanimously to repeal the TOD Ordinance

without the Grandfathered-In Clause.

(Id. ¶ 142.)

In June 2025, Plaintiffs initiated two Article

78 proceedings against the Town in New York

Supreme Court. (Id. ¶ 158.) The first sought

to compel the Town to review and act upon

Plaintiffs’ permit application in accordance

with the TOD Ordinance. The State Court found

in Plaintiffs’ favor in that action. (Id. ¶¶

159-61.) The Town timely filed a Notice of

Appeal and asserted its right to a stay of the

State Court’s directives pending appeal. (Def.

Mem. of Law 6.)

The second Article 78 proceeding sought an

order declaring the repeal of the TOD

Ordinance null and void for failure to comply

with New York General Municipal Law § 239-m

prior to its adoption. (Compl. ¶ 162.) Again,

the State Court decided in Plaintiffs’ favor

and again, the Town appealed. (Id.; Def. Mem.

of Law 7.)

Plaintiffs commenced the within action on

October 17, 2025, pursuant to 42 U.S.C Section

1983, asserting claims for violations of the

Takings Clause and the Equal Protection Clause

under the Fourteenth Amendment, as well as

both substantive and procedural due process

violations and First Amendment retaliation.

Plaintiffs seek solely money damages and do

not request any declaratory or injunctive

relief.

On January 13, 2026, Proposed Intervenor

Oliner filed the within motion to intervene

herein as a defendant, pursuant to Rule 24 of

the Federal Rules of Civil Procedure. (Docket

Entry (“DE”) [26].) Oliner is the former Mayor

of Lawrence, New York as well as a resident

who lives in close proximity to Plaintiffs’

proposed project site. (Oliner’s Mem. of Law

1.) Oliner asserts as grounds for his motion

that he has a significant, protectable

interest in preventing the Project from moving

forward and that the Town and the Board are

not adequately representing this vital

interest. (Id. 2.) Plaintiffs and Defendants

oppose Oliner’s motion.

(R&R at 1-3.) Proposed Intervenor’s Objection adopts the above

factual summary by reference, but also adds the state court denial

of the TOD Ordinance was “on purely procedural grounds arising

from the Town’s failure to comply with New York General Municipal

Law § 239-m’s referral requirements.” (Obj. at 2.)

II. The R&R

On May 26, 2026, Judge Shields issued the R&R. (See

Generally R&R.) Judge Shields first explained Rule 24(a)(2)

requires a court to permit intervention where a proposed

intervenor:

(1) files a timely motion, (2) claims ‘an

interest relating to the property or

transaction that is the subject of the

action,’ and (3) ‘is so situated that

disposing of the action may as a practical

matter impair or impede the movant’s ability

to protect its interest,’ [and] (4) ‘unless

existing parties adequately represent that

interest.’

(R&R at 4 (quoting FED. R. CIV. P. 24(a)(2); SEC v. Xia Yue, No.

21-CV-5350, 2026 WL 872956, at *2 (E.D.N.Y. Mar. 30, 2026).)

Applying these factors, Judge Shields determined

Proposed Intervenor lacked a cognizable interest required for

mandatory intervention under Rule 24(a)(2). (R&R at 5–6.)

Emphasizing that Plaintiffs seek only money damages—and not

declaratory or injunctive relief needed to resume development of

the project—Judge Shields explained Proposed Intervenor’s asserted

interests in “zoning, land use, traffic patterns, environmental

quality, and character of his community” were insufficient under

the Rule. (Id.) Judge Shields further found Proposed Intervenor

failed to demonstrate any entitlement to money damages, the sole

relief sought in this Action. (Id.)

Judge Shields also recommended denying permissive

intervention under Rule 24(b), which allows intervention where the

proposed intervenor’s claim or defense shares a common question of

law or fact with the main action. (Id. at 7.) Proposed

Intervenor’s stated concerns—including “support[ing the] voice of

the residents of Lawrence and Inwood” and “restor[ing] public faith

in democracy”—were deemed “extraneous.” (Id. (quoting United

States v. City of N.Y., 198 F.3d 360, 367 (2d Cir. 1999)).)

Accordingly, Judge Shields determined permitting intervention on

this basis would unduly delay adjudication of the Parties’ rights,

the principal discretionary consideration under Rule 24(b). (Id.

at 7-8.)

III. Objection and Opposition

On June 9, 2026, Proposed Intervenor filed a timely

Objection to Judge Shields’s R&R, continuing to assert interests

in “zoning, land use, traffic, environmental quality, and

community character.” (Obj. at 3.) He primarily contends Judge

Shields mischaracterized the Action as one for money damages, since

Plaintiffs’ Complaint also seeks “such other, further, or

different relief as this Court deems just and proper.” (Id. at 1,

3–4.) He additionally argues that the true objective of Plaintiffs’

Action is not “money damages for purported constitutional

violations,” but rather to use “constitutional litigation to

pressure the Town into permitting a 300-plus unit high-density

development that the Town’s own expert found environmentally

deficient and that thousands of residents have opposed.” (Id. at

1, 4.) Proposed Intervenor also objects to Judge Shields’s

recommendation regarding permissive intervention under Rule 24(b),

principally arguing that the R&R adopts an overly technical reading

of the phrase “claim or defense.” (Id. at 6.)

On June 18, 2026, Defendants filed their response to

Proposed Intervenor’s Objection, and on June 23, 2026, Plaintiffs

filed a separate response. (See generally Defs.’ Reply and Pls.’

Reply.) Both urge the Court to adopt the R&R in its entirety.

(Id.) As noted (see supra note 1), the Court declines to consider

Plaintiff’s response.

DISCUSSION

I. Applicable Law

A. Report and Recommendations

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED R. CIV. P. 72(b)(3).

A party objecting to an R&R “must lodge a specific objection to

some specific aspect of the R&R,” and “[w]hen a timely filed

objection raises and properly briefs arguments previously rejected

by the magistrate judge, the district judge must review those

arguments de novo.” Nambiar v. Cent. Orthopedic Grp., LLP, 158

F.4th 349, 361 (2d Cir. 2025). The Court need not review the

findings and conclusions to which no proper objection has been

made, and an objection “may not simply rest on the briefs

considered by the magistrate judge.” Id.; Thomas v. Arn, 474 U.S.

140, 150 (1985).

B. Intervention

As Judge Shields correctly stated:

Rule 24(a)(2) sets forth a four-part test for

intervention as of right, stating that the

Court “must permit anyone to intervene” who

(1) files a timely motion, (2) claims “an

interest relating to the property or

transaction that is the subject of the

action,” and (3) “is so situated that

disposing of the action may as a practical

matter impair or impede the movant’s ability

to protect its interest,” (4) “unless existing

parties adequately represent that interest.”

FED. R. CIV. P. 24(a)(2); see also SEC v. Xia

Yue, No. 21-CV-5350, 2026 WL 872956, at *2

(E.D.N.Y. Mar. 30, 2026). All four parts of

the foregoing test must be met for

intervention as of right. See John Wiley &

Sons, Inc. v. Book Dog Books, LLC, 315 F.R.D.

169, 175 (S.D.N.Y. 2016) (citing United States

v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir.

1994)).

Under Rule 24(b)(1)(B), which provides for

permissive intervention, a court “may permit

anyone to intervene who has a claim or defense

that shares with the main action a common

question of law or fact.” FED. R. CIV. P.

24(b)(1)(B). “A motion for permissive

intervention, like one for intervention of

right, must be timely.” SEC v. Euro Sec. Fund,

No. 98-CV-7347, 2006 WL 1461776, at *4

(S.D.N.Y. May 30, 2006) (quoting Catanzano By

Catanzano v. Wing, 103 F.3d 223, 224 (2d Cir.

1996)). “In exercising its broad discretion

under Rule 24(b), a court considers the same

factors that it considers for intervention as

of right.” Innovation Ventures LLC v.

Pittsburg Wholesale Grocers Inc., No. 13-CV-

6397, 2019 WL 4805041, at *2 (E.D.N.Y. Sept.

30, 2019) (quoting MASTR Adjustable Rate

Mortg. Tr. 2006-A3 v. UBS Real Estate Secs.,

No. 12-CV-7332, 2013 WL 139636, at *2

(S.D.N.Y. Jan. 11, 2013)) (additional citation

omitted).

Whether intervention is sought as of right or

by permission, Rule 24(c) further requires the

motion to “state the grounds for intervention

and be accompanied by a pleading that sets out

the claim or defense for which intervention is

sought.” FED. R. CIV. P. 24(c). Many courts,

however, have found that “a failure to attach

. . . a proposed pleading,” as required by

Rule 24(c), “is not fatal to the motion to

intervene.” Innovation Ventures, 2019 WL

4805041, at *2 (quoting N. Shore-Long Island

Jewish Health Sys., Inc. v. Multiplan, Inc.,

No. 12-CV-1633, 2015 WL 777248, at *18

(E.D.N.Y. Feb. 13, 2015)) (additional citation

omitted); see also Murray v. City of New York,

No. 21 Civ. 6892, 2023 WL 3984342, at *2 n.3

(E.D.N.Y. June 13, 2023) (“Courts in this

Circuit regularly excuse the failure to

include a pleading with a motion to

intervene.”) (collecting cases).

(R&R at 4-5.)

II. Application

A. Proposed Intervenor is Not Entitled to Mandatory

Intervention

Proposed Intervenor’s Objection does not establish a

protectable interest under Rule 24(a). In an attempt to

characterize this Action as anything other than a money-damages

case, Proposed Intervenor argues the Complaint’s boilerplate

request for “such other, further, or different relief as this Court

deems just and proper” demonstrates that Plaintiffs seek more than

monetary relief. (Obj. at 3 (citing Compl. pp. 48).) However,

Proposed Intervenor cites to no authority indicating such a brief,

boilerplate sentence included at the end of a money-damages

Complaint can transform an action into one for declaratory or

injunctive relief for purposes of an intervention motion. Nor

does a fair reading of the Complaint suggest this Action seeks

such relief. Rather, as is plain from its text, the causes of

action listed in Plaintiffs’ Complaint each include attempted

computations for monetary damages, thereby underscoring

Plaintiffs’ desire for money damages. (See Compl. ¶ ¶ 176-257.)

Proposed Intervenor’s argument that “[c]ourts have

recognized that the proper inquiry is not what remedy a plaintiff

has chosen but what the proceeding is actually about” is likewise

unavailing. (Obj. at 3-4.) This argument rests primarily on his

settlement-leverage theory and reliance upon Rent Stabilization

Association of New York City v. State Division of Housing &

Community Renewal, 252 A.D.2d 111, 115 (3d Dep’t 1998). Rent

Stabilization is a New York State case that did not arise under

the Federal Rules of Civil Procedure, wherein a New York State

court determined New York City was a necessary party in a case

where the validity of one of its ordinances was being litigated by

private parties. Id. Even setting aside that Rent Stabilization

addressed intervention under the C.P.L.R. rather than Rule 24(a),

the interest at issue there—a municipality’s interest in the

validity of its own ordinance—was far more direct and protectable

than Proposed Intervenor’s speculative concerns regarding

settlement leverage. As Defendants state in their Reply, Proposed

Intervenor “has not come forward with any evidence that the Town

is not vigorously defending this Action or the proceedings

Plaintiffs commenced in State court.” (Defs.’ Reply at 4.) Because

Proposed Intervenor’s asserted interest rests entirely upon

speculation, he is not entitled to intervention as of right under

Rule 24(a)(2).

B. Permissive Intervention is Also Not Warranted

As Proposed Intervenor’s cited interest is entirely

speculative, he is also not entitled to permissive intervention

under Rule 24(b). See Innovation Ventures LLC, 2019 WL 4805041,

at *2 (courts possess “broad discretion under Rule 24(b)”).

Proposed Intervenor’s reliance on Commack Self-Service Kosher

Meats, Incorporated v. Rubin, a case where several rabbis were

permitted to intervene in litigation concerning New York’s kosher

laws, is not availing. (Obj. at 5 (citing 170 F.R.D. 93, 106

(E.D.N.Y. 1996)).) In Commack Kosher, the Court found the rabbis

had “an interest in the enforcement and the constitutionality of

the Kosher Laws.” 170 F.R.D. at 106. As in Rent Stabilization,

the interest asserted in Commack Kosher did not depend upon

speculation about litigation theories or reading into the parties’

motivations. Rather, the intervenors had a direct stake in each

case, which respectively impacted their ordinance-making powers

and religious-practice interests. Such circumstances are not

present in Proposed Intervenor’s case.

Hence, upon de novo review, the Court finds the

Magistrate Judge’s thorough Report to be free of clear error.

Therefore, overruling Proposed Intervenor’s objections to said

Report, the Court adopts Judge Shields’s recommendation.

CONCLUSION

Accordingly, for the stated reasons, IT IS HEREBY

ORDERED that Proposed Intervenor’s Objection is OVERRULED and

the Magistrate Judge’s R&R is ADOPTED in its entirety;

therefore,

IT IS FURTHER ORDERED that Proposed Intervenor’s

Motion (ECF No. 26) is DENIED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: June 30, 2026

Central Islip, New York