The plaintiff, Windy Ridge Corp. is the owner of forty-two undeveloped residential lots in a phased real estate development located in the Town of Windham, Greene County, New York ^[FN1]. The [*2]defendant homeowners association represents the owners of one hundred fourteen existing (fully constructed) residences erected in an earlier phase of the project. The defendant owns and controls a communal waste water treatment facility, which provides waste water sewage disposal for the one hundred fourteen existing dwellings. The plaintiff maintains that under a Declaration of Covenants, Restrictions, Easements, Charges and Liens (hereinafter "Declaration") filed in the Greene County Clerk's Office in 1982, it is entitled to connect into the communal waste water treatment facility, in order to provide sewage disposal to the forty-two undeveloped residential units. The defendant takes the position that the plaintiff is not entitled to do so. In the instant action the plaintiff seeks, inter alia, a declaratory judgment that it is entitled to membership in the defendant homeowners association and full rights to use the existing waste treatment facility.

The original developer, WNCC Associates, acquired the land in 1982. In 1983 WNCC Associates created the defendant homeowner's association, and filed the Declaration which states, inter alia, that members of the homeowners association have the right to utilize the water and sewer facilities owned by the homeowners association. The Declaration, which is limited to Section I of the development, contains a recital that the developer may bring additional property into the defendant homeowners association by filing a Supplemental Declaration in the Greene County Clerk's office. The parties are in sharp disagreement with regard to whether certain homeowners owning lots outside of Section I of the development are members of the defendant homeowners association.^[FN2]

The land was subsequently conveyed to an entity known as Windham Ridge Club, Inc. In 1990, Windham Ridge Club, Inc. conveyed approximately 5.6 acres thereof to the defendant. The lands conveyed were intended to be the common areas of the development. The forty-two residential lots currently owned by the plaintiff were expressly excluded from the conveyance. The deed contains language indicating that it was intended that the undeveloped residential lots retained by the Windham Ridge Club, Inc. would be subject to the 1982 Declaration. Said property was subsequently the subject of a mortgage foreclosure action brought by Dime Savings Bank. Ultimately, the undeveloped lots were conveyed to the plaintiff by a court-appointed referee in February of 1996.

Prior to March of 2002, plaintiff attempted to obtain easements necessary to construct a wastewater treatment system and leach field for the twelve un-constructed townhouse units in Section III. When negotiations failed, plaintiff commenced the instant action seeking a declaratory judgment that the townhouse parcels located in Section III of the development [*3]were entitled to connect to defendant's existing waste water sewage treatment system.

In 2005, defendant's existing wastewater treatment facility was found to be seriously inadequate by the New York State Department of Environmental Conservation (hereinafter "NYSDEC").^[FN3] As a consequence, defendant entered into a consent-order with NYSDEC, which imposed fines upon the defendant, and which included a compliance schedule requiring inter alia, closure of the current facility. In order to address the inadequacy of the current waste treatment facility the defendant, NYSDEC, the New York City Department of Environmental Protection (hereinafter "NYCDEP") and the Town of Windham (hereinafter "Town") entered into negotiations to permit the defendant to connect defendant's sewer system to the Town of Windham's sewer system. The foregoing was to be accomplished through the construction of a sewer connection line between the two systems. As a consequence, in July 2007 a proposed sewer connection contract was drafted and circulated among defendant, NYCDEP and the Town of Windham. The proposal, as currently written, provides that the Town of Windham will construct the connection line, with the defendant paying a total of $570,000.00 ^[FN4] to the Town. NYCDEP will contribute $1,500.00 per residential unit to the project, for a total of $171,000.00. The agreement expressly limits the sewage flow allocation (a total discharge of 33,060 gallons of sewage per day) to the one hundred fourteen residential units owned by the defendant. It prohibits the defendant from providing sewer service to additional residential units. There is no evidence, however, that the agreement has been signed.

During the course of the foregoing negotiations plaintiff corresponded with NYSDEC in an unsuccessful attempt to be included in the proposed sewer connection agreement. The plaintiff also submitted an application to the Town for a permit to do so. The Town declined to consider plaintiff's permit application, based upon the pendency of the instant action: specifically, concerns about plaintiff's right to utilize defendant's waste water treatment facility.

Plaintiff has moved by order to show cause for a variety of relief including: (1) an order converting this special proceeding into an action; (2) an order granting leave to serve [*4]an amended complaint which, inter alia, adds NYSDEC, NYCDEP, the Town of Windham and the law firm of Young, Sommer, LLC. (attorneys for the Town of Windham) as defendants; (3) an order granting a preliminary injunction preventing the defendant from decommissioning its current waste water treatment facility, and preventing the defendant from entering into the sewer connection contract; and an order extending the time to file a note of issue. Defendants have submitted papers in opposition to most of the relief requested by the plaintiff, and have cross-moved to dismiss the action for failure to comply with a discovery order under CPLR 3126 and neglect to prosecute under CPLR 3216.

Addressing the motion for leave to amend first, Plaintiff proposes an amended complaint which will expand the requested relief to include a declaration of the rights of the parties in relation to thirty single family residence parcels in Section IV, and to include a cause of action arising out of the proposed sewer connection contract.

In general, the decision to grant leave to amend pleadings lies within the trial court's discretion and shall be granted freely (see CPLR 3025 [b]; Edenwald Contracting Co., Inc. v City of New York, 959 60 NY2d 957, [1983]). However, leave must be denied where the proposed amendment prejudices the other party or is wholly devoid of merit (see Trupia ex rel. Trupia v Lake George Central School Dist., ___AD3d___,___, 2009 NY Slip Op. 01571 [3 Dept., March 5, 2009]; Fort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [3 Dept., 2008]). The cause of action against defendant derived from the proposed sewer connection contract has merit on its face. It is conceivable that waste water sewage disposal with respect to plaintiff's property will be more difficult and costly if the plaintiff is not permitted to participate in the proposed sewer connection project. It does not appear, and defendant has not argued, that allowing this cause of action will prejudice defendant. Therefore leave will be granted for plaintiff to amend its complaint to include the cause of action based on the sewer connection contract and to expand the scope of this action to include the thirty parcels in Section IV.

Turning to the question of joinder of additional parties, plaintiff argues that the Town, NYSDEC, and NYCDEP ought to be joined in this litigation because their presence is necessary for full relief to be accorded between the parties. In support of this argument, plaintiff points out that they are all parties to the proposed sewer connection contract. Under CPLR 1001(a) a party shall be joined where its presence is necessary if "complete relief is to be accorded between the persons who are parties to the action" or where the party might be inequitably affected by a judgment in the action." However in order for an entity to be a necessary, or even proper party, it must be one against whom plaintiff can assert a right to relief (see Stevens v Eaton, 267 AD2d 450, 451 [2nd Dept., 1999]; Joanne S. v Carey, 115 AD2d 4, 8 [1st Dept., 1986]). Plaintiff's cause of action against defendant is for a declaratory judgment establishing its rights under the Declaration. Plaintiff's claim against the government entities is for an unconstitutional taking of its property. Plaintiff argues that because this contract expressly prevents it from acquiring access to defendant's waste water treatment facility, these government entities are, in effect, confiscating plaintiff's property [*5]rights.

In the Court's view, however, the issue is not yet ripe.In assessing the ripeness of an action against a government body, a court must first determine whether the issues are appropriate for judicial resolution and then assess the harm to the parties if such a resolution is not forthcoming. (see Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 518-519 [1986]). An issue is appropriate for judicial resolution when the government action is final and the questions presented are purely legal in nature (id.) An action is final when " the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue' and has arrived at a definitive position on the issue that inflicts an actual, concrete injury." (Matter of Ward v Bennett, 79 NY2d 394, 400 [1992], quoting Williamson Planning Commn. v Hamilton Bank, 473 US 172, 186, 193 [1985]; see Schmitt v Skovira, 53 AD3d 918, 920 [3 Dept., 2008]). The second part of the analysis, the inquiry into the potential hardship to the parties, requires the court to assess the certainty and the effect of the harm (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 518-519 [1986]). Notably, for an action to be ripe the harm "may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'" (Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998], quoting Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520 [1986], accord Gordon v Rush, 100 NY2d 236, 242 [2003]; see State v International Asset Recovery Corp., 56 AD3d 849, 853 [3 Dept., 2008]).

Assuming, without deciding, that the likelihood of these entities entering into the contract with defendant is high enough that it could be considered a final decision, the evidence submitted by plaintiff indicates that further action on the part of the Town and NYSDEC could ameliorate the harm. Plaintiff has submitted the minutes from a Town Board meeting held on August 14, 2008 in which the Town Supervisor indicates that the Town would be willing to consider plaintiff's application to connect into the proposed sewer line between the defendant and the Town's waste treatment facility once plaintiff's rights to connect into defendant's the sewage disposal system are established in the instant lawsuit. In addition, in a letter dated March 10, 2008 from NYSDEC, it is indicated that the SPDES permit to authorize the proposed sewer line connection between the defendant and the Town sewer system would be revised to remove any impediment to a future modification to add plaintiff's forty-two lots.

Therefore because further action by these government entities can ameliorate the harm plaintiff will suffer, if a harm would be suffered at all,^[FN5] the dispute between plaintiff, [*6]NYSDEC, NYCDEP and the Town is not ripe for adjudication (see Church of St. Paul & St. Andrew v. Barwick, 67 NY2d 510, 520 [1986]; State v International Asset Recovery Corp., 56 AD3d 849, 853 [3 Dept., 2008]; Schmitt v Skovira, 53 AD3d 918, 920 [3 Dept., 2008]). Because the claim is not ripe, these entities are not proper parties and it would be premature to join them as defendants at this time.^[FN6]

As noted, plaintiff also seeks to join the law firm of Young, Sommer, LLC as a party defendant, and seeks $4.2 Million in damages from this entity. The basis for the claim arises out of the fact that the instant action was commenced on behalf of the plaintiff by the law firm of Young, Sommer, Ward, Ritzenberg, Wooley, Baker and Moore, LLC, predecessor to Young Sommer, LLC. At some point the Young, Sommer Law Firm (for reasons not readily apparent) stopped acting as plaintiff's attorney, and commenced providing legal services to the Town of Windham. It is indicated that Young, Sommer, LLC has since taken positions adverse to those of the plaintiff with respect to the plaintiff's attempts to obtain rights to be included in the proposed sewer line connection between the defendant and the Town sewer system. Specifically, it is indicated that Young, Sommer , LLC. participated in the drafting of the proposed Sewer Connection Agreement which excludes plaintiff's building lots.

In the Court's view, plaintiff's dispute with Young, Sommer, LLC. has no material relation to the parties' dispute here. The joinder of Young, Sommer, LLC. as a defendant in the instant action is not necessary to accord complete relief between the parties, and there is no demonstration that any party will be inequitably affected by Young, Sommer's absence (see CPLR 1001 [a]). Phrased differently, Young, Sommer, LLC is not necessary to declare the rights of the plaintiff to utilize defendant's waste water treatment facility. The Court finds that Young, Sommer, LLC. is not a proper party to the action.

Turning to plaintiff's request for a preliminary injunction, in order to obtain a preliminary injunction, a party must establish a likelihood of success on the merits, irreparable injury in the absence of an injunction, and a balancing of the equities in its favor (see Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d 839, 840 [2005] Lew Beach Co. v Carlson, 57 AD3d 1153, ___, [3d Dept., 2008]; Town of Elmira v Hutchison, 53 AD3d 939, 940 [3d Dept., 2008]; Kings Mall, LLC. v Wenk, 42 AD3d 623, 624 [3d Dept., 2007]).

Plaintiff has not established that a failure to grant the injunction will result in [*7]irreparable harm (see Robinson v Robinson, 11 AD3d 853, 855 [3 Dept., 2004]). The affidavit of Frederick Grober, the principal engineer of this project indicates that, were it determined that plaintiff has water and sewer rights under the 1982 Declaration, it would be a simple matter to connect plaintiff's properties with the sewer system. The Town and other involved agencies have not indicated that they will prevent such a connection from occurring. Nor, for that matter, has plaintiff indicated that it would be impossible to alter its development plan to, for example, provide each unit with its own individual septic system. While such a contingency may cause economic injury to the plaintiff, either by requiring the plaintiff to incur additional costs, or by diminishing the value of the property, harm of this nature can be remedied by money damages. In fact, plaintiff has requested alternative relief in the form of money damages for $ 4.2 million, suggesting that whatever harm it sustains is reparable.

As the harm that plaintiff would suffer in the absence of an injunction has not been shown to be greater than the harm the injunction would cause, the balancing of the equities does not favor granting the injunction (see Kings Mall, LLC. v. Wenk, 42 AD3d 623, 625 [3rd Dept., 2007]). Plaintiff has offered no evidence to contradict the opinion of Mr. Grober that the construction of a sewer line connection would be a simple task were the plaintiff to prevail. In addition, Grober's affidavit estimates the cost of delaying this project at approximately $5,000 per month.

Because the plaintiff has not demonstrated irreparable harm and the balance of equities does not favor the granting of the injunction, it is not necessary to address whether plaintiff has established a likelihood of success on the merits. The Court concludes that the motion to grant a preliminary injunction must be denied.

The defendant has cross-moved to dismiss the complaint under CPLR 3126 and CPLR 3216. Under CPLR 3216, this court may not dismiss a claim for failure to prosecute unless the following requirements have been met; one year has elapsed since the joinder of issue, the plaintiff has been served with a written demand to file and serve a note of issue within 90 days, and plaintiff has failed to do so (see CPLR 3216 [b]; Baczkowski v D.A. Collins Const. Co., Inc., 89 NY2d 499, 503 [1997]). If these requirements have been met, a plaintiff may still avoid dismissal by providing a justifiable excuse for the delay and an affidavit of merit (Baczkowski v D.A. Collins Const. Co., Inc., 89 NY2d 499, 503 [1997]; Burchard v City of Elmira, 52 AD3d 881, 881 [3 Dept.,2008]; Mrva v Yavorski, 17 AD3d 918, 919 [3 Dept., 2005]).

Although the defendant has not served plaintiff with a demand to file a note of issue, defendant argues that this requirement is satisfied by the preliminary conference order, which required plaintiff to file and serve a note of issue by August 1, 2007. While the Second Department has found that a compliance conference order requiring a plaintiff to file and serve the note of issue has, for the purposes of CPLR 3216, the same effect as a demand for a note of issue by a defendant (see Benitez v Mutual of America Life Ins. Co., 24 AD3d 708, 708-709 [2nd Dept., 2005]; Vinikour v Jamaica Hosp., 2 AD3d 518, 519 [2nd Dept., 2003]; [*8]Aguilar v Knutson, 296 AD2d 562, 562-563 [2nd Dept., 2003]), that Court has generally required the order to specify that failure in this regard will subject the plaintiff to a dismissal (see e.g. Huger v Cushman & Wakefield, Inc., 58 AD3d 682, 684 [2nd Dept., 2009]; Ovchinnikov v Joyce Owners Corp., 43 AD3d 1124, 1126 [2nd Dept., 2007]; Vinikour v Jamaica Hosp., 2 AD3d 518, 519 [2nd Dept., 2003]. This requirement is in harmony with Chase v Scavuzzo, in which the Court of Appeals stated that an order by a trial court to file and serve a note of issue did not relieve a defendant of the burden of serving the ninety day demand (see Chase v Scavuzzo 87 NY2d 228, 230-231 [1995]). The order at issue in that decision did not state that failure to comply would result in dismissal (see id. at 229-230). In the matter at hand, the preliminary conference order issued by this Court stated that the note of issue was to be filed and served by August 1, 2007 and that failure to do so might result in sanctions. However this order did not specify that failure to comply would subject plaintiff to dismissal. Therefore, the requirements of CPLR 3216 (b) have not been satisfied and dismissal is not authorized by CPLR 3216 (e).

Defendants also move to dismiss the complaint under CPLR 3126, which commits to this Court's discretion the authority to determine the nature and severity of sanctions for failing to comply with discovery order, including the authority to dismiss the complaint. However " the drastic sanction of dismissal of an answer should only be imposed where the moving party makes a clear showing that the defendant willfully or contumaciously failed to comply with an order for disclosure'" (Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [3rd Dept., 2008], quoting Fraracci v Lasouska, 283 AD2d 735, 736 [2001]). Absent a showing that the party engaged in a " deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay that would be deserving of the most vehement condemnation,'" dismissal is inappropriate (Altu v Clark, 20 AD3d 749, 750 [2005], quoting Forman v Jamesway Corp., 175 AD2d 514, 515-516 [1991]). Willfulness of this sort may be inferred from the party's course of conduct (see Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 53 AD3d 924, 926 [3d Dept., 2008]; Myers v Community General Hosp. of Sullivan County, 51 AD3d 1359, 1360 [3d Dept., 2008]).

In May of 2006 defendant served plaintiff with demands for discovery and depositions. The plaintiff never responded to the demands. Subsequently, this Court issued a scheduling order under which discovery would be completed and a note of issue filed by August of 2007. It is undisputed that the plaintiff has failed to comply with defendant's discovery demands to date.While it is true that plaintiff is delinquent in complying with defendant's discovery demands, the Court cannot ignore the fact that the defendant did not seek to compel enforcement of the discovery demands prior to the instant motion. In this respect it appears that both parties have put the action on the "back-burner". Under such circumstances, the Court finds that the severity of plaintiff's non-compliance is insufficient to infer willfulness. This does not however, remove the discretion of this court to fashion some other appropriate remedy for non-compliance (see CPLR 3126). Conditional orders of preclusion giving plaintiff 30 days to satisfy defendant's remaining discovery demands, [*9]90 days to submit to defendant's deposition demand, and 120 days to file and serve a note of issue will be sufficient.

Accordingly, it is

ORDERED, that plaintiff's motion to convert this special proceeding to an action for declaratory judgment is granted; and it is further

ORDERED, that plaintiff's motion for leave to file and serve an amended complaint is granted in keeping with this decision-order; and it is

ORDERED, that the plaintiff serve and file an amended complaint within twenty (20) days of the date hereof; and it is further

ORDERED, that the defendant serve and file an answer to the amended complaint within twenty (20) days thereafter; and it is further

ORDERED, that plaintiff's motion to join the Town of Windham, the New York State Department of Environmental Conservation, the New York City Department of Environmental Protection, and the law firm of Young, Sommer, LLC. as parties is denied; and it is further

ORDERED, that plaintiff's motion for a preliminary injunction is denied; and it is further

ORDERED,that defendant's cross-motion for dismissal of the complaint is denied; and it is further

ORDERED, that plaintiff is directed to serve responses to defendant's discovery demands within thirty (30) days of the date hereof, or else be precluded from offering into evidence any of the materials sought; and it is further

ORDERED, that plaintiff submit to defendant for deposition within ninety (90) days of the date hereof, or else be precluded from testifying at trial; and it is further

ORDERED, that plaintiff file and serve a note of issue within one hundred twenty (120) days of the date hereof.

This shall constitute the decision and order of the Court. All papers are returned to the attorney for the defendant, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated:Troy, New York

April 9, 2009/s/ George B. Ceresia, Jr.

George B. Ceresia, Jr.

Supreme Court Justice