Greenberg v. Veteran Memorandum of Respondents in Support of Their Motion to Dismiss the Amended Article 78 Petition or Alternatively for Summary Judgement

    UNITED 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 a l . ,

Respondents.

89 Civ. 0591 (GLG)

x

MEMORANDUM OF RESPONDENTS IN SUPPORT OF 
THEIR MOTION TO DISMISS THE AMENDED ARTICLE 78 
PETITION OR ALTERNATIVELY FOR SUMMARY JUDGMENT

PAUL AGRESTA, ESQ.
Town Attorney- 
Town of Greenburgh 
P.O. Box 205
Elmsford, New York 10523 
(914) 993-1546

Attorney for Respondents 
Anthony F. Veteran and 
Susan Tolchin

(Additional Counsel Listed on Signature Page)



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
------------------------------------------------------       X

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

Petitioners, : 89 Civ. 0591 (GLG)

-against- :

ANTHONY F . VETERAN. et a l .. :

Respondents. :

---------------------------------------------------------------         ' X

MEMORANDUM OF RESPONDENTS IN SUPPORT OF 
THEIR MOTION TO DISMISS THE AMENDED ARTICLE 78 
PETITION OR ALTERNATIVELY FOR SUMMARY JUDGMENT

Preliminary Statement

In December 1988, respondent Anthony F. Veteran 

(the "Town Supervisor") declined to approve for a vote by 

area residents a petition to incorporate a new village called 

"Mayfair Knollwood." Petitioners —  two Mayfair Knollwood 

proponents —  seek to overturn that decision. To prevail, 

they must invalidate all six grounds that the Town Supervisor 

relied on in his decision. Thus, the Court's role here is 

comparable to that of an appellate court reviewing a lower 

court's dismissal of a single count complaint for six 

different reasons. If any single reason was sound, that

suffices to affirm.



This motion for dismissal is directed to only one 

of the six grounds cited by the Town Supervisor: the failure

of the incorporation petition to set forth the boundary of 

the proposed village with "common certainty," as required by 

Village Law § 2-202(1)(c)(1). This basis for rejection of 

the incorporation petition is unassailable. Evidence pre­

sented to the Town Supervisor showed, among other things, 

that the boundary description had "15 voids along its course 

and a last series of unknown number of sides which was not 

even described rendering it unusable for a metes and bounds 

description, or any kind of description with 'common 

certainty.'" (Agresta A f f . , Ex. 3, p. 7)^ Thus, the Town 

Supervisor correctly found the description inadequate.

Petitioners' inability to mount a successful 

challenge to this ground for the Town Supervisor's decision 

ends this case. Respondents' motion should be granted, and 

the amended petition should be dismissed.

Statement of Facts

As the Court is familiar with this case, we only 

summarize the background facts.

1/ References to "Agresta Aff." are to the accompanying 
moving affidavit of Paul Agresta, sworn to January 17, 
1990.

-2



The West HELP Shelter

In January 1988, the Town of Greenburgh proposed to 

build housing for 108 homeless families with children on land 

within the Town owned by the County. The proposed developer 

is West H.E.L.P., Inc. ("West HELP"), a not-for-profit 

corporation that constructs housing for the homeless.

(Agresta Aff. 3-4)

Shortly thereafter, an organization called Coali­

tion of United Peoples, Inc. ("COUP") was formed to stop the 

West HELP shelter. COUP proponents publicly announced their 

intent to secede from the Town by incorporating a new village 

—  later named "Mayfair Knollwood" —  pursuant to the New 

York Village Lav/. COUP subsequently devised an irregularly 

shaped, roughly 30-sided, proposed village, which excludes 

all surrounding black and multi-racial housing, and 

circulated a petition to incorporate. (Agresta Aff. f 5 &

Ex. 5)

In September 1988, the secessionists presented the 

incorporation petition to the Town Supervisor. (Agresta Aff. 

IS 6 & Ex. 1) Under state law, the Town Supervisor then had 

to call a hearing, receive objections and render a decision 

on whether the incorporation could move ahead. A favorable 

decision would clear the way for a vote by only the Mayfair

-3-



Knollwood residents on whether to secede. N.Y. Village L.

§ 2-212 (McKinney 1973).

On November 1, 1988, the Town Supervisor convened 

the required hearing. Community residents spoke, both for 

and against the proposed incorporation, and they also submit­

ted signed written comments, mostly objections. (Agresta 

Aff. 1 7 ) ^  At the conclusion of the session, the Town 

Supervisor adjourned the hearing to November 21 to permit 

submission of additional written material. No oral hearing 

session was held on the 21st. (Agresta Aff. *S 7 & Tr. 68-69)

The Town Supervisor's Decision

On December 6, 1988, the Town Supervisor filed his 

decision rejecting the incorporation petition on six indepen­

dent grounds. (Agresta Aff., Ex. 2) On this motion, the 

relevant ground is the Town Supervisor's finding that the 

incorporation petition failed to satisfy Village Law 

§ 2-202(1)(c)(1), which requires that the village boundary be 

described with "common certainty." The Town Supervisor based 

this part of his decision on a detailed review of the Mayfair 

Knollwood boundary, performed by Larry J. Nardecchia, Jr., a

2J Separately bound copies of the transcript of hearing
("Tr.") and of the written matter submitted are being 
filed with this motion.

-4-



Greenburgh resident and Town Engineer. (See Agresta A f f .,

Exs. 1 [Ex. A] & 3)

By way of summary, Mr. Nardecchia reported the

following:

1. The Mayfair Knollwood boundary description 

does not begin from "a known point on a filed map.

Therefore, the whole description cannot be tied in, with 

certainty, to the entire land records system of Westchester 

County." (Id., p. 3)

2. The center line of Grasslands Road —  the 

point of beginning —  has been altered by the New York State 

Transportation Department. Whether the "center line" 

referred to in the description coincides with the Town 

boundary thus is uncertain. (Id., pp. 3-4)

3. The description has 15 different voids in 

its course, arising from failures to specify either suffi­

cient compass bearings or distances. (Id., pp. 4-6)

4. In one instance, the description refers to

"the following 14 courses and distances," but then lists only 

13. (Id., pp. 6-7)

5. Part of the boundary description consists of 

"a litany of towns, owners, and filed maps which cannot 

equate into a mathematical translation necessary to consti­

tute a metes and bound description." (Id., p. 7) Moreover, 

the Town itself does not have many of the maps referred to.

-5-



Thus, Mr. Nardecchia concluded, " [b]ased on my 27 

years of experience it is my opinion that the property 

description does not in fact describe an area of land with 

common certainty. . . . "  (Id., pp. 7-8) He therefore 

opposed the incorporation petition. The Town Supervisor 

relied on the Nardecchia review in rejecting the petition. 

(Agresta Aff., Ex. 2, pp. 1-2)

Petitioners1 Claims

Petitioners allege eighteen claims in their amended 

petition, only three of which are relevant to the defects in 

the boundary description.

First, petitioners contend that Mr. Nardecchia 

(also the Town Engineer) "was not a competent objector", that 

he acted "ultra vires," and that an expenditure of Town funds 

to prepare his written report was unlawful. (Agresta Aff., 

Ex. 4, f 58) On this basis, the Town Supervisor's decision 

allegedly "was illegal." (Id. f 59)

Second, petitioners assert that Mr. Nardecchia's 

analysis "was legally and factually flawed," and that the 

boundary was, in fact, described with common certainty. The 

supposed "flaws," however, are not alleged at all. (Agresta 

Aff., Ex. 4 U 61)

Finally, petitioners allege that the boundary 

description was sufficient to enable Town officials to

-6-



prepare a map of Mayfair Knollwood for the purposes of 

showing its discriminatory exclusion of members of racial 

minorities. Hence, on petitioners' theory, if the descrip­

tion was good enough to permit the illustration of racial 

discrimination, "the boundary necessarily was described in 

the incorporation petition with 'common certainty.'"

(Agresta A f f ., Ex. 4, f 63)

*  *  *

Respondents now move to dismiss or, alternatively, 

for summary j u d g m e n t . ^

Argument

Where a court is called on to review judicial or 

administrative action based on several independent grounds, 

the review petition fails if any ground for the action is 

correct. S e e , e.g. , Bowman Transportation, Inc, v. Arkansas 

_  Best Freight System, Inc.. 419 U.S. 281, 286-87 (1974), 

Syracuse Peace Council v. F.C.C.. 867 F.2d 654, 657 (D.C. 

Cir. 1989), cert, denied. No. 89-312 (U.S. Jan. 8, 1990) and 

Communications Workers of America v. N.L.R.B.. 784 F.2d 847,

3/ We do not, of course, concede that the Town
Supervisor's decision may be sustained only on the 
ground presented by this motion. Affirmance of the 
decision on this particular ground, however, would 
obviate the need to submit additional papers relating to 
the other grounds for the decision that the Town 
Supervisor relied on. It also enables the Court to 
resolve this proceeding efficiently, deferring the need 
to consider petitioners' other claims.

-7-



851 (7th Cir. 1986) (review of agency action); Harris v. 

Edward Hyman C o . , 664 F.2d 943, 945 (5th Cir. 1981) (review 

of lower court ruling). Thus, in its decision in Jones v. 

Deutsch. 715 F. Supp. 1237, 1243 (S.D.N.Y. 1989), the Court 

correctly noted that "reversal [of the Town Supervisor's 

decision] will occur only if all six of the grounds stated by

Town Supervisor Veteran are found to be infirm." (emphasis in

. . 4 /original)—/

Petitioners cannot invalidate the Town Supervisor's 

determination that the proposed Mayfair Knollwood boundary 

lacks common certainty. Accordingly, the amended petition 

fails.

I
THE TOWN SUPERVISOR'S 

DETERMINATION IS UNASSAILABLE

The Town Supervisor's decision must be measured 

against a test of rationality. Hence, so long as the evi­

dence demonstrates that it was not arbitrary or capricious, 

the decision should be sustained. S e e . e.cr. . N.Y. Civ. Prac.

4/ The analogy to an appellate court, however, goes only so 
far here. An appellate court generally is limited to 
the record below. By contrast, § 2-210(1) of the 
Village Law permits this court to receive additional 
evidence if "necessary for the proper disposition" of a 
proceeding to review an incorporation petition decision.

-8-



L. & R. 7803(3); Lutheran Church v. City of Nev Y o r k , 35 

N .Y .2d 121, 128 n.2, 359 N.Y.S.2d 7, 13, 316 N.E.2d 305 

(1974) (finding of administrative hearing was reviewable 

under rationality standard); Seaview Ass'n of Fire Island v.

Department of Envtl. Conservation, 123 A.D.2d 619, 506

5 /N .Y .S .2d 775 (2d Dept. 1986). This standard is met.-7

Village Law § 2-202(1)(c)(1) requires an incorpora­

tion petition to include:

A description of such territory sufficient to 
identify the location and extent of such territory 
with common certainty and which shall be in one of 
the following forms or a combination thereof:
(a) a metes and bounds description; (b) a descrip­
tion made with reference to existing streets and 
navigable waters or a combination of same; or (c) a 
map showing existing streets and navigable waters 
or a combination of same forming boundaries or 
metes and bounds or the entire boundaries of one or 
more districts of an entire town.

The statute embodies the principle that "(a] municipal

corporation must from its nature have definite territorial

limits." City of New York v. Village of Lawrence, 250 N.Y.

5/ The more rigorous "substantial evidence" standard of 
review, codified in N.Y. Civ. Prac. L. & R. 7803(4), 
applies only to "determinations made after quasi­
judicial hearings required by statute of law." Matter 
of Colton v. Berman. 21 N.Y.2d 322, 329, 287 N.Y.S.2d 
647, 651, 234 N.E.2d 679 (1967). See also Matter of 
Bravata's Carting. Inc, v. Town of Huntington, 120 
A.D.2d 521, 522, 501 N.Y.S.2d 720, 721 (2d Dept. 1986);
5 N.Y. Jur.2d, Article 78 and Related Proceedings, § 36 
at 409-10. No such hearing was held (or required) here.

-9-



429, 435, 165 N.E. 836 (1929). Mayfair Knollwood, as 

proposed, does not.

The Nardecchia review, summarized above, amply 

supports the finding of a failure to satisfy the statute.

The boundary description has two defects at its very begin­

ning. Overall, there are ”15 voids along its course and a 

series of unknown number of sides which are not even de­

scribed . . . ." (Agresta A f f ., Ex. 3, p. 7)

In Matter of Viola Hills v. Conklin. Index No. 

6985/85 (Rock. Co. Sup. Ct. Dec. 31, 1985) (Agresta A f f .,

Ex. 6), af f» d, 129 A.D.2d 579, 514 N.Y.S.2d 79 (2d Dept.), 

leave to appeal denied, 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 

N.E.2d 550 (1987), the court rejected a village incorporation 

petition that had two defects in its boundary description.

The Second Department affirmed. The Mayfair Knollwood 

description is far worse. Accordingly, the Town Supervisor 

properly rejected the petition.

II

THERE IS NO BASIS FOR OVERTURNING 
THE TOWN SUPERVISOR'S DECISION

Petitioners make no effort to impeach the 

Nardecchia review. Thus, their pro forma allegations 

(Agresta Aff., Ex. 4, f 61) that his analysis was "flawed," 

and that the boundary description is adequate, are worthless. 

In the face of the evidence before the Town Supervisor, an

-10-



unadorned allegation of error does not establish a basis for 

challenging the Supervisor's decision as irrational. Cf. 

Friedman v. Perales. 668 F. Supp. 216, 221 (S.D.N.Y. 1987), 

aff'd per curiam. 841 F.2d 47 (2d Cir. 1988), and United 

Neighbors Civic Ass'n of Jamaica. Inc, v. Pierce, 563 F.

Supp. 200, 205 (E.D.N.Y. 1983) (both dismissing challenges to 

agency action where plaintiffs failed to satisfy their burden 

of showing that action was arbitrary or capricious).

Petitioners' assertion that Mr. Nardecchia "was not 

a competent objector" is similarly unsupported. (Agresta 

Aff., Ex. 4, f 58) The evidence shows him to be "a resident 

of the Town of Greenburgh, a registered voter, and a person 

qualified to vote for town offices in the Town of 

Greenburgh." (Agresta Aff., Ex. 3, p. 1) Accordingly, he 

was competent to present his objection. See Village Law 

§§2-204, 206 (residents may submit objections).

Mr. Nardecchia also is Town Engineer. But that 

hardly detracts from his competency —  indeed, it enhances 

it. The Town is no mere bystander to the incorporation 

effort. It has an undeniable interest in knowing just where 

the Town of Greenburgh would end and Mayfair Knollwood, if 

approved, would begin. Each entity requires an adequate 

boundary description to know the extent of its legal respon­

sibilities .

-11-



Accordingly, neither the Town nor the Town

Supervisor is as strait-jacketed as petitioners suggest by 

their ultra vires allegation. (Agresta Aff., Ex. 4, % 58) A 

municipal government or agency possesses those implied powers 

necessary to discharge its express functions. S e e , e . g . , 2 

N.Y. Jur. 2 d , Administrative Law, § 24 and 26 N.Y. Jur. 2 d , 

Counties, Towns and Municipal Corporations, §§ 174 and 630.

T h u s , in Matter of Holv Spirit Ass'n for the 

Unification of World Christianity v. Rosenfeld, 91 A.D.2d 

190, 201, 458 N .Y .S .2d 920, 928 (2d Dept. 1983), leave to 

anneal de ni ed. 63 N.Y.2d 603 480 N.Y.S.2d 1025, 469 N.E.2d 

103 (1984), the Second Department held that a local agency 

(there, a zoning board) was entitled to make its own investi­

gation of the facts. See also Matter of Levy v. Board of 

Standards & Anneals. 267 N.Y. 347, 351, 196 N.E. 284, 285 

(1935) . C f . Matter of Burke v. Public Service Commission, 47 

A.D.2d 91, 364 N.Y.S.2d 924 (3d Dept. 1975) (agency empowered 

to rule on legal issue arising in the course of its 

regulatory duty), a f f *d . 39 N.Y.2d 766, 384 N.Y.S.2d 779, 349 

N.E.2d 879 (1976).

The Village Law authorizes the Town Supervisor to 

decide the legal sufficiency of an incorporation petition. 

That express power necessarily includes the power to deter­

mine whether the statutory requirements for a valid incorpo­

ration petition are met. The boundary description

-12-



requirement, as noted, is of particular interest because the 

To wn’s own boundary vis-a-vis the village depends on the 

description in the petition.

Accordingly, it is disingenuous for petitioners to 

try to craft an objection based on the T o w n ’s commitment of 

resources to Mr. Nardecchia's review. Any such commitment 

was a p pr op ri at e. ^

Likewise, there is no merit to petitioners' claim 

that the boundaries should be deemed sufficiently certain 

because the Town was able to prepare a map illustrating the 

exclusion of racial minority members from the proposed 

village. The Town in fact based its map on one circulated to 

the media by Mayfair Knollwood proponents. (Agresta 

Aff. «f 12) Furthermore, a description adequate to show 

discrimination cannot be declared sufficient to permit the 

affairs of the Town and the proposed village to be conducted 

in perpetuity. That would only invite eventual confusion.

6/ Moreover, even assuming, for argument's sake, that it
was not proper to devote Town resources to the boundary 
review, that is no basis for ignoring the boundary 
defects. Supposedly improper Town support, which esta­
blishes a legitimate objection to incorporation, is no 
ground for permitting a municipal entity with uncertain 
boundaries to proceed to formation. At best, the Town's 
action might be challengeable in an appropriate form of 
action, not in an article 78 proceeding seeking to 
approve incorporation.

-13-



Petitioners' three claims therefore fail. Peti­

tioners also allege, without elaboration, that Mr. 

Nardecchia's report was unsworn and came after the close of 

the public hearing session. (Agresta Aff., Ex. 4, 1 18) 

Insofar as these allegations are intended as objections, they 

too are without merit.

In a proceeding such as an incorporation hearing, 

there is no requirement that evidence be presented under 

oath. S e e , e.cr. , Matter of Von Kohorn v. Morrell, 9 N.Y.2d 

27, 32, 210 N .Y .S .2d 525, 527, 172 N.E.2d 287 (1961) and 

Fordham Manor Reformed Church, 244 N.Y. 280, 287, 155 N.E.2d 

575, 577 (1927) (in non-adjudicatory agency proceedings, 

witnesses need not be sworn); Matter of RHS Realty Co. v . 

Conciliation and Appeals Bd. of New Y o r k , 101 A.D.2d 756, 475 

N . Y .S .2d 72 (1st Dept. 1984) (agency properly relied on 

unsworn affirmations); 425 Merchants Road, Inc, v. Leach, 92 

A.D.2d 719, 720, 461 N.Y.S.2d 111, 113 (4th Dept. 1983) 

(swearing of witnesses not required in hearing on license 

renewal); Matter of Aorile v. LoGrande, 89 A.D.2d 563, 565, 

452 N . Y . S .2d 104, 107 (2d Dept. 1982) (swearing of witnesses 

and cross examination not required in hearing on permit 

revocation), aff'd on opinion below, 59 N.Y.2d 886, 466 

N.Y.S.2d 316, 453 N.E.2d 545 (1983). Cf. Brown v. Ristich,

36 N.Y.2d 183, 366 N.Y.S.2d 116, 325 N.E.2d 533 (1975) (even 

in an adjudicatory proceeding, unsworn testimony may be

-14-



received where there is support for a finding that the

witness had testimonial capacity).

Similarly, in a proceeding such as this, the Town

Supervisor was not disabled from relying on evidence

submitted after conclusion of the oral hearing session.

Public officials often discharge non-adjudicatory

responsibility after informing themselves by means developed

independent of the oral hearing process.

For example, Matter of Russo v. Stevens, 7 A.D.2d

575, 184 N .Y .S .2d 989 (3d Dept. 1959), expressly upheld a

zoning board decision based in part on facts outside the

hearing record. As the court noted:

[A] Zoning Board of Appeals may act upon its own 
knowledge of conditions or make its own survey 
. . . . If it does so however it must set forth in 
its decision the facts known to its members but not 
otherwise disclosed.

7 A.D.2d at 577-78, 184 N.Y.S.2a at 992 (citations omitted).

So too, in Matter of McSpedon v. Roberts. 117 

Misc.2d 679, 684, 459 N.Y.S.2d 233, 236 (N.Y. Co. Sup. Ct. 

1983), the court held that it was not improper for an agency 

official to go beyond the hearing record by speaking with the 

governor, and with private industry groups, before taking 

non-adjudicatory action.

The principle of these cases applies here, where 

indeed, the Town Supervisor did not even go outside the 

hearing record, but instead kept it open for 20 days after

-15-



the oral session to permit submission of additional written 

material. Thus, the Town Supervisor properly relied on 

Mr. Nardecchia's report.

Finally, there is no basis for petitioners' allega­

tion that Mr. Nardecchia incorrectly assumed that the village 

boundary description must be stated in metes and bounds. 

(Agresta A f f ., Ex. 4, 18 and 2 0 [ a ] H e  made no such

assumption, but rather noted that multiple defects rendered 

the description "unusable for a metes and bounds description, 

or any kind of description with "common certainty." (Agresta 

Aff., Ex. 3, p. 7; emphasis added) Mr. Nardecchia further 

wrote that:

As a description it bounces from one system to 
another and finally to mere references as to where 
the information can be found without any specifics. 
This last case makes this totally defective for any 
type of description.

(Id., p. 7; emphasis added)

Conclusion

The Town Supervisor had ample evidence to find that 

the Mayfair Knollwood incorporation petition fails to satisfy 

the statutory requirement that the village's boundaries be 

described with common certainty. No grounds to overturn that 

part of the decision are shown in the amended article 78

U  Village Law § 2-202(1)(c)(1) does not require a metes 
and bounds description.

-16-



petition. Accordingly, respondents' motion should be

granted.

Dated:

The amended petition should be dismissed.

Elmsford, New York 
January 22, 1990

Respectfully submitted,

P.O. Box 205
Elmsford, New York 10523 
(914) 993-1546

Attorney for Respondents 
Anthony F. Veteran and 
Susan Tolchin

CUDDY & FEDER
90 Maple Avenue
White Plains, New York 10601
(914) 

By:__
Ruth E . Roth

Attorneys for Respondents 
Karen Developments, Inc. and 
Robert Martin Company

(jUxbl
RUTH E. ROTH, ESQ.
90 Maple Avenue 
White Plains, New York 
(914) 761-1300

10601

Respondent Pro Se

-17-



PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, New York 10019-6064

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

JOYCE KNOX, ESQ.
NAACP, Inc.
4805 Mount Hope Drive 
Baltimore, Maryland 21215-3297 
(301) 486-9191

Attorney 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 Flains/Greenburgh Branch

Of Counsel:

Robert M. Hayes, Esq.
O'Melveny & Myers 
Citicorp Center
153 East 53rd Street, Room 5314 
New York, New York 10022

-18-



Julius L. Chambers, Esq.
John Charles Boger, Esq. 
Sherrilyn Ifill, Esq.
99 Hudson Street
New York, New York 10013
(212) 219-1900

Andrew M. Cuomo, Esq.
12 East 33rd Street, 6th Floor 
New York, New York 10016 
(212) 779-3350

-19-



V •
\