Greenberg v. Veteran Petitioners' Memorandum of Law in Opposition to Motion to Dismiss and/or for Summary Judgement

    UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------ -
In the Matter of the Application of 
MYLES GREENBERG and FRANCES M.
MULLIGAN,

89 Civ. 0591 (GLG)
Petitioners,

-against-
ANTHONY F. VETERAN, et. al. ,

Respondents.
------------------------------------------ x

PETITIONERS' MEMORANDUM OF LAW IN 
OPPOSITION TO MOTION TO DISMISS 

AND/OR FOR SUMMARY JUDGMENT

LOVETT & GOULD, ESQS.
BY: JONATHAN LOVETT, ESQ.
Attorneys for Petitioners 
180 E. Post Road 
White Plains, N.Y. 10601 
914-428-8401



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------ -
In the Matter of the Application of 
MYLES GREENBERG and FRANCES M.
MULLIGAN,

89 Civ. 0591 (GLG)Petitioners,
-against-

ANTHONY F. VETERAN, et. al.,
Respondents.

------------------------------------------ -

PETITIONERS' MEMORANDUM OF LAW IN 
OPPOSITION TO MOTION TO DISMISS 

AND/OR FOR SUMMARY JUDGMENT

Preliminary Statement

This memorandum of law is submitted in opposition to 
Respondents' application for an order granting dismissal and/or 
summary judgment.

Background

On September 14, 1988, a petition to incorporate the village 
of Mayfair Knollwood, containing a description of the boundary of 
that proposed municipality, was filed with the Supervisor of the 
Town of Greenburgh, New York [Agresta Affidavit, para. 6; Exhibit 
1 to Agresta Affidavit (incorporation petition)]. At the time and 
on the basis of that filing officials of the Town formed the 
opinion that there existed "gaps" in the boundary description 
(Agresta Affidavit, para. 12).

1



Thereafter and in accordance with New York State Village Law 
§2-206 a public hearing was conducted on November 1, 1988, with 
respect to the incorporation petition (Agresta Affidavit, para. 
6). Although the Town's officials had six weeks earlier already- 
decided that the boundary description of the proposed village was 
flawed (Agresta Affidavit, para. 12) absolutely nothing was said 
with respect to this issue during the public hearing (Lovett 
Affidavit, para. 3; see Volume I, Hearing Transcript).

Instead, the Town Supervisor adjourned the hearing until 
November 21, 1988, ostensibly in order to receive written 
comments regarding the incorporation petition (Vol. I, Hearing 
Transcript, pp. 68-9). Proponents of the petition immediately but 
without success objected to the adjournment on the "grounds that 
there will not be any adequate opportunity to respond to anything 
that may be material contained in such comments" (id. at p. 69).

Apparently subsequent to the conclusion of the public 
hearing on November 1, 1988, the Town's Engineer submitted to the 
Supervisor an undated and previously prepared written statement 
[Respondents' Rule 3(g) Statement, para. 4; Agresta Affidavit, 
paragraph 12; Petitioners' Rule 3(g) Statement, para. 1] 
purporting to ahalyze the boundary description and memorializing 
the Town officials' September 1988 opinion that that description 
was defective by reason of supposed gaps [Exhibit 2 to 
Respondents' Rule 3(g) Statement]. Then on December 6, 1988,

2



without affording proponents of incorporation any opportunity to 
either review or respond to the Engineer's statement, the 
Supervisor decided that the incorporation petition was defective 
on six grounds (Exhibit 2 to Agresta Affidavit; Lovett Affidavit, 
paras. 4-5).

The first such ground was exclusively predicated upon the 
Engineer's written statement [Respondents' Rule 3(g) Statement, 
para. 7; Respondents' Memorandum of Law, pp. 4-5, 6; Exhibit 2 to 
Agresta Affidavit, p. 2, first para.]:

1. The boundary description submitted with the 
petition did not describe the boundaries of the 
proposed village with "common certainty" thereby 
making it impossible to locate the boundaries with 
the precision that is necessary. Numerous gaps 
in the proposed boundaries were discovered making 
the description defective.

The memorandum in opposition [to incorporation] 
submitted by the Town Engineer clearly details the 
deficiencies in the boundary description.

At least 15 voids in the description were discovered 
rendering it impossible to accurately define the 
village boundaries.

3



The description does not even begin at a known 
point on a filed map which is the fundamental 
criteria of all property descriptions.

The description uses the centerline of Grasslands 
Road yet fails to note that Grasslands Road has been 
relocated and that the centerline at many points lies 
within the Town of Mount Pleasant.

For these reasons and the other reasons stated in 
the memo of the Town Engineer the boundary description 
is clearly defective and does not describe the 
proposed village with "common certainty".

(Exhibit 2, pp. 1-2).

Five additional grounds for the Supervisor's determination 
were that the village boundary was supposedly gerrymandered to 
exclude Blacks (id. at pp. 2-4), the village was supposedly 
proposed solely to prevent construction of housing for the 
homeless (id. at pp. 4-7), signatures on the incorporation 
petition were supposedly obtained under false pretenses (id. at 
p. 7), a substantial number of signatures on the petition were 
supposedly irregular (ibid.), and the names of numerous residents 
in the proposed village were supposedly omitted from the list of 
"regular inhabitants" (ibid.) required by Village Law 
§202(1)(c)(2).

4



By amended verified petition (Exhibit 4 to Agresta 
Affidavit) two proponents of incorporation challenged the 
Supervisor's ruling in accordance with inter alia Village Law 
§2-210 which provides in relevant part:

1. The decision of the supervisor... as to the 
legal sufficiency of the petition [to incorporate] 
shall be subject to judicial review...Such 
proceeding may be brought on the ground or grounds 
that said decision is illegal, based on insufficient 
evidence, or contrary to the weight of evidence.
If the court determines that additional testimony 
or evidence is necessary for the proper disposition 
of the matter it may take such evidence or 
testimony or appoint a referee to take such 
evidence or testimony as it may direct and report 
the same to the court with his findings of fact and 
conclusions of law which shall constitute a 
part of the proceeding upon which the determination 
of the court shall be made. The court may reverse 
or affirm on the basis of law and fact as determined 
by the court.

Petitioners challenged as patently illegal the Supervisor's 
conclusion that the list of regular inhabitants was deficient 
since no objection whatsoever was made to the incorporation 
petition on this ground, as mandated by Village Law §2-206(1,3)

5



(Exhibit 4 to Agresta Affidavit, paras. 31-2; Volume I, Hearing 
Transcript; Volume II, Written Statements regarding incorporation 
petition). They also challenged his conclusion on the grounds 
that, since no evidence was adduced pertaining to the list of 
regular inhabitants and the burden of proof was on objectors to 
the incorporation petition [Village Law §2-206(3)], the 
Supervisor's conclusion was based upon insufficient evidence 
(Exhibit 4 to Agresta Affidavit, paras. 33-5). Finally 
Petitioners challenged the Supervisor's finding on the ground it 
was a fabrication since the list of regular inhabitants was 
complete and accurate; with respect to this last contention 
Petitioners requested that testimony and/or evidence regarding 
the list's sufficiency be taken by the Court as contemplated by 
Village Law §2-210(1) (Exhibit 4 to Agresta Affidavit, paras. 36-
7).

Petitioners also challenged as patently illegal the 
Supervisor's conclusion that signatures to the incorporation 
petition had been procured by under false pretenses since no 
objection whatsoever was made to the incorporation petition on 
this ground, as mandated by Village Law §2-206(1,3) (Exhibit 4 to 
Agresta Affidavit, paras. 38-9; Volume I, Hearing Transcript, 
Volume II, Written Statements regarding incorporation petition). 
They also challenged his conclusion on the grounds that, since no 
evidence was adduced on this issue and the burden of proof was on 
objectors to the incorporation petition, the Supervisor's 
conclusion was based upon insufficient evidence (Exhibit 4 to

6



Agresta Affidavit, paras. 40-1). Finally Petitioners challenged 
the Supervisor's finding on the ground that it also was a 
complete fabrication since no signatures had been obtained under 
false pretenses; with respect to this last contention Petitioners 
requested that testimony and/or evidence regarding the procuring 
of signatures to the incorporation petition be taken by the Court 
in accordance with Village Law §2-210(1) (Id. at paras. 42-3).

Petitioners challenged as patently illegal the Supervisor's 
conclusion that the supposed object of incorporation was to 
prevent construction of housing for the homeless since no 
objection was made to the incorporation petition on this ground, 
as mandated by Village Law §2-206(1,3) (Exhibit 4 to Agresta 
Affidavit, paras. 44-5; Volume I, Hearing Transcript; Volume II, 
Written Statements regarding incorporation petition). They also 
challenged his conclusion on the grounds that, since no evidence 
was adduced on this issue and the burden of proof was on the 
objectors to the incorporation petition, the Supervisor's 
conclusion was based upon insufficient evidence (.Id. at paras. 
45-6). Finally Petitioners challenged this finding of the 
Supervisor on the ground that it was a fabrication since the 
Supervisor knew, on the basis of facts personally communicated to 
him by leading proponents of incorporation, that the barring of 
housing for the'homeless was neither a motive for nor objective 
of incorporation? with respect to this last contention 
Petitioners requested that testimony and/or evidence regarding 
the motive/objective of the proponents of incorporation be taken 
by the Court pursuant to Village Law §2-210(1) (id. at paras. 47- 
8 ).



Since the number of signatures on the incorporation petition 
was legally sufficient, even if all of the signatures claimed to 
be irregular were stricken (see Volume II, pp. 153-4),
Petitioners challenged as illegal the Supervisor's rejection of 
the petition on this ground (id. at paras. 49-50). They also 
challenged his conclusion on the ground that it was premised on 
insufficient evidence since it was entirely predicated upon a 
bare conclusory objection (id. at paras. 51-2). Finally 
Petitioners challenged this finding on the ground that certified 
records of the Westchester County Board of Elections demonstrated 
it to be materially false; with respect to this last contention 
Petitioners requested that pursuant to Village Law §2-210(1) 
testimony and/or evidence be taken by the Court (id. at paras. 
53-4).

Petitioners challenged the Supervisor's finding that the 
village boundary had been gerrymandered on the ground that the 
purported objector who raised this issue after conclusion of the 
public hearing on November 1, 1988, was incompetent as a matter 
of law (id. at paras. 64-6). Petitioners also challenged this 
finding on the ground that the boundary had not been 
gerrymandered but instead had been drawn on the basis of entirely 
proper bases; with respect to the latter contention, Petitioner's 
requested that the Court take evidence and/or testimony as 
contemplated by Village Law §2-210(1) (id- at paras. 67-8).

8



Petitioners challenged the Supervisor's conclusion with 
respect to supposed defects in the boundary description on the 
ground that the Town Engineer was, as a matter of law, an 
incompetent objector (id. at paras. 55-9). They also challenged 
his finding on the ground that the Town Engineer's purported 
analysis of the boundary description was legally and factually 
flawed, and that the boundary description was in fact proper and 
described the proposed village with "common certainty" as 
required by Village Law §2-202( 1)(c )(1) ; with respect to this 
contention Petitioner's requested that the Court take evidence 
and/or testimony in accordance with Village Law §2-210(1) (id. at 
paras. 60-1). Finally Petitioners contended that, since the 
boundary description contained in the incorporation petition had 
been sufficiently certain to enable the Town's officials to 
prepare a map depicting that boundary (for use in connection with 
the Supervisor's claim regarding racial gerrymandering), that 
that boundary description was necessarily described in the 
incorporation petition with "common certainty" (id. at paras. 62- 
3 ).

Respondents now move for dismissal and/or summary judgment 
contending that the Supervisor reasonably relied upon the Town 
Engineer's boundary description analysis (Respondents' Memorandum 
of Law, Point I) and that the "evidence" created by the Engineer 
on this issue is.somehow or other "unassailable" (id. at p. 2). 
They also advance certain related contentions which are treated 
seriatim below.

9



POINT I
THE TOWN ENGINEER'S ANALYSIS OF THE BOUNDARY DESCRIPTION IS 

MATERIALLY FALSE IN ALL RELEVANT RESPECTS AND ABSURD ON ITS FACE

Obviously planning to reject the village incorporation 
petition on the ground that the boundary description contained 
within it was deficient [Agresta Affidavit, para. 12 ("gaps" in 
boundary description found by Town officials in September 1988); 
Exhibit 2 to Agresta Affidavit, pp. 1-2 (12/1/88 decision of 
Supervisor relying on those "gaps" to reject incorporation 
petition)], the Town Supervisor conducted a statutorily mandated 
public hearing on November 1, 1988, at which time the sufficiency 
of that description was not the subject of any challenge 
whatsoever (Volume I, Hearing Transcript; Lovett Affidavit, para. 
3). The Supervisor thereafter adjourned that hearing for three 
weeks solely for the purpose of receiving written objections to 
the petition, despite the immediate protest of incorporation 
proponents that such a procedure would necessarily preclude them 
from controverting any such objections (Volume I, Hearing 
Transcript pp. 68-9).

On December 6, 1988, the Supervisor filed a decision 
rejecting the incorporation petition in substantial respect upon 
the ground that'"gaps” had been found in the boundary description 
by Town Engineer‘Larry Nardecchia (hereinafter "Nardecchia") 
whose undated, written "analysis" is now impliedly claimed to

10



have been first made available to the Supervisor subsequent to 
November 1 but prior to November 21, 1988 [Respondents' Rule 3(g) 
Statement, para. 4; see Petitioners' Rule 3(g) Statement, para. 1 
putting in issue the date when the Nardecchia analysis was 
prepared].

Against this background the Respondents now incredibly 
contend that Nardecchia's "evidence" of defects in the boundary 
description is "unassailable" (Respondents' Memorandum of Law, p. 
2), that the Supervisor's reliance upon that evidence was 
reasonable, and that judicial inquiry into the propriety of the 
Supervisor's conclusion that the boundary description was 
defective is absolutely forbidden (Respondents' Memorandum, Point 
I). Since the Town Engineer's "evidence" is materially false and 
absurd on its face, Respondents' contentions are utterly 
frivolous.

Before considering the Nardecchia analysis of the boundary 
description's supposed "gaps", several threshold issues warrant 
brief mention.

In the State of New York professional engineers such as 
Nardecchia are incompetent as a matter of law to determine real 
property boundaries within or without the context of a village 
incorporation proceeding. N.Y. Education Law
§7208(e )(professional engineers may make surveys but "...the 
making of real property boundaries may be done only by a licensed

11



land surveyor"); see Education Law §§7202, 7203, 7204;
Petitioners' Rule 3(g) Statement, para. 8; cf. Op. N.Y. State 
Comptroller 80-762 (copy annexed in Addendum) ("Aside from this 
hearing and determination [by the town supervisor], there is no 
other role which the town of its officers may play in the 
incorporation of a village...[T ]he town has no legal standing to 
oppose the incorporation of a village..."]. Nardecchia's bald 
contention that at some unspecified times he has reviewed an 
unspecified number of property descriptions to "determine their 
sufficiency" [Exhibit 2 (hereinafter Nardecchia's "statement") to 
Respondents' Rule 3(g) Statement, p. 1] hardly makes him an 
expert.

Indeed, as discussed infra it is painfully obvious on this 
record that Nardecchia is in fact an incompetent with respect to 
this subject. For purposes of considering his lack of expertise, 
an appropriate point of beginning is the series of fundamental 
misconceptions Nardecchia harbors with respect to land 
descriptions and surveying.

For example, Nardecchia claimed (Statement, p. 3) that 
"[a]11 metes and bounds descriptions are supposed to begin at a 
known point on the filed map". This representation, improvidently 
and expressly relied upon by the Town Supervisor when he rejected 
the incorporation petition (Exhibit 2 to Agresta Affidavit, p. 2, 
third para.) is absolutely false as explained by Petitioners' 
professional title examiner/closer and title insurance agent:

12



Nardecchia's representation that "metes and bounds" 
descriptions are supposed to begin at a known point on 
the filed map" (Statement p. 3, second full para.; 
record p. 126) was either intended as a fabrication 
or constitutes a betrayal of his ignorance regarding 
methods of describing real property. Many, many metes 
and bounds descriptions are employed simply because 
the premises intended to be described do not appear 
on any filed map. Metes and bounds descriptions are 
supposed to begin at a known point, with or without 
the benefit of a filed map, since the intent in 
rendering a property description is to locate a 
finite point in space and then move in as certain 
a direction for as certain a distance in relation 
to said point as instruments and physical monuments 
allow.

[Affidavit of Donald J. DeBerardinis, para. 8(b), emphasis in 
original].

Fundamentally flawed is Nardecchia's opinion that in modern 
times property descriptions are recorded by reference to metes 
and bounds descriptions whereas years ago reference to natural or 
artificial features of terrain were utilized (Statement, p. 2).
As explained by Petitioners' professional title examiner:

13



Measurements for purposes of property description 
have always been, and still are, most effective when 
used in conjunction with definite, physical monuments, 
whether as a starting point from which to begin 
computation or for purposes as a reference point 
in relation to mathematical computations. In the 
event of a dispute between facts disclosed by 
mathematical computation and those disclosed by 
physical monumentation, the dispute is almost always 
resolved in favor of physical monuments.

[Affidavit of Donald J. DeBerardinis, para. 8(a)].

Absent from Nardecchia's narrative pertaining to methods of 
describing real property is the so-called "plat method", which 
no so coincidentally happens to be highly relevant to the 
boundary description at issue in the case at bar, as discussed 
infra:

Omitted from Nardecchia's general discussion of the 
existing methods of describing real property are...
(iii) the plat method. The plat method, which is very 
often employed in New York State and Westchester County, 
describes property by reference to its depiction on 
a filed map. This method of description is preferred 
since inter alia filed maps are almost always based 
upon field survey work including the location of both

14



physical and legal boundaries and reference points, 
as well as mathematical reconciliation of the same.
The repetition of a description by reference to a plat 
or filed map, due to the generally compact form of that 
description (as opposed to the generally lengthy form 
of a metes and bounds description) reduces the 
possibility of error in transcription. Due to the 
extensive use of physical monumentation on most filed 
maps or plats, the intent of the parties can more 
easily be derived by a simple review of the referenced 
map or plat against the totality of the physical 
monumentation in the field.

[Affidavit of Donald J. DeBerardinis, at para. 8(c)].

Permeating Nardecchia's purported analysis is the several 
times reiterated contention that the boundary description of 
Mayfair Knollwood is indefinite and thus flawed because boundary 
lines are from time to time described as running "parallel" to 
either a physical monument or another fixed line. These 
contentions are absolutely false:

Contrary to Nardecchia's repeated suggestions that 
the Mayfair Knollwood description is indefinite 
because d boundary line is described as running 
parallel to either a physical monument or another 
fixed line, such descriptions are commonplace and

15



do not in any respect detract from the common 
certainty of a description. In fact in New York 
County, where property values presumably are greater 
than any other locale in the northeastern United 
States, metes and bounds descriptions of real 
property are rarely used. The customary method of 
describing real property in mid-town Manhattan, 
indeed the entire City of New York, is to monument 
the beginning point of the property described by 
reference to the nearest intersection of two 
streets, then to run in a "general" direction 
(either northerly, southerly, easterly or 
westerly) parallel to one of the streets for a 
fixed distance, and to continue in like fashion 
until the subject property description "closes", 
forming a unique, definitely determined polygon.

[Affidavit of Donald J. DeBerardinis, at para. 8(d)].

In short Nardecchia approached the Mayfair Knollwood 
boundary description lacking the most elementary skills required 
to properly analyze it. The result, a grossly incompetent 
"analysis" which is materially false, hardly comes as a surprise. 
Consideration of each aspect of Nardecchia's statement 
demonstrates its’absurdity.

16



At the outset of his analysis of the boundary description 
Nardecchia claims that the description is defective because, 
while all "metes and bounds descriptions are supposed to begin at 
a known point on the filed map”, the subject description "does 
not begin by referring to a known point on a filed map" 
(Statement, p. 3). As discussed supra, Nardecchia's observation 
is entirely false since there is no requirement that the point of 
beginning be referenced on such a map [Affidavit of Donald J. 
DeBerardinis, at para. 8(b)]. "So long as the boundary 
description begins at an ascertainable finite point, the omission 
of reference to a filed map is irrelevant". Id. at para. 9(a).

Manifestly frivolous is Nardecchia's next contention, that 
the defect attributable to the absence of a reference to a filed 
map is "compounded by the fact that the center line of Grasslands 
Road on which the description begins has been altered by the New 
York State Department of Transportation which means that at this 
location the center-line might not be on the Town boundary line" 
(Statement, pp. 3-4). As explained by both Petitioners' title 
examiner and their licensed land surveyor:

Nardecchia's claim...that the boundary description 
is flawed because at its commencement it references 
the center line of Grasslands Road and that that 
center ’line has been altered by the New York State 
Department of Transportation is frivolous. In point 
of fact the beginning point on the subject descrip-

17



tion was taken directly from the New York State 
Department of Transportation taking maps, on file 
in the office of the Westchester County Clerk,
Division of Land Records, which maps clearly 
delineate the subject point as a matter of public 
record. As an additional and indisputable fact 
the finite point of beginning of the subject 
description is not referenced by the center of 
Grassland's Road. Rather that finite point is 
referenced in the description as being at the 
"intersection of the easterly side of Knollwood 
Road and the southerly border of the town of 
Mount Pleasant" which point is merely described 
as being "at or about [emphasis added] the 
center of said Grassland's Road". Since the 
described intersection does not depend upon the 
precise location of Grassland's Road, Mr.
Nardecchia's criticism is entirely without merit 
and common certainty exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(b); Affidavit of 
J. Charles Boolukos, licensed land surveyor, at para. 3(c)]. Thus 
Nardecchia's contention and the Town Supervisor's improvident and 
express reliance upon it [Exhibit 2 to Agresta Affidavit, p. 2, 
fourth para.] were unequivocally error.

18



Without merit is Nardecchia's next contention, that at page 
11, line 26 the boundary description improperly "deviates from a 
metes and bounds description because it references terms such as 
"thence southerly" without a bearing and "approximately 25 feet" 
without a finite distance being stated (Statement, p. 4). Most 
obviously a metes and bounds description is not required at all 
as the Village Law makes patent [Village Law §2-202(1)(c )(1) 
(authorizing description in terms of metes and bounds, reference 
to monuments, a map or any combination of these methods of 
description); see Matter of the Incorporation of the Village of 
Airmont, 144 A.D. 2d 465 (2d Dept. 1988), lv. den. 73 N.Y. 2d 704 
(1989) (Permitting additional methods of description]. In any 
event the so-called deviation results in no defect whatsoever:

In fact at p. 11, line 26 the description runs in 
a southerly direction from one finite point to a finite 
point shown on a filed map. Nardecchia's additional 
representation that there "is no way to determine 
in what direction the boundary line is intended 
to proceed, or for what distance" is incredible 
on its face. The subject line moves "southerly a 
distance of approximately 25 feet” to a finite point. 
Having traveled from one finite point in a southerly 
direction to another finite point, the absolute 
certainty of that line is beyond dispute.

19



[Affidavit of Donald J. DeBerardinis, at para. 9(c); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Next "Nardecchia's claim (statement, p. 4; record p. 127) 
that at page 12, line 24 of the boundary description 
discontinuity is manifested by the absence of a reference to 
distance or bearing, is frivolous" [Affidavit of Donald J. 
DeBerardinis, at para. 9(d); Affidavit of J. Charles Boolukos, at 
para. 3(c)]:

At page 12, line 24 the description moves from 
a fixed and finite point, westerly across a known 
monument (Knollwood Road) to a definite point (i.e. 
where the Village of Elmsford border intersects the 
westerly line of Knollwood Road. Only one line 
in the universe satisfies this condition and 
common certainty exists.

Ibid.

Meritless is Nardecchia's contention (Statement, p. 5) that 
the description is defective at page 13, line 2 for lack of a 
bearing and the presence of only an approximate distance:

At page 13, line 2 the description runs from a 
definite point, in an easterly direction along a 
physical monument (the southerly side of Payne

20



Street) to a definite point, "...the intersection 
formed by the southerly side of Payne Street and 
the westerly side of Montgomery Avenue." Only one 
line satisfies this condition and common 
certainty exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(e); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Nardecchia's criticism of the description at page 13, line 6 
on the grounds that no bearing is given and the distance is only 
approximate is frivolous:

At page 13, line 6, the description runs from 
a definite point, in a northerly direction across 
Payne Street to a definite point, namely "...the 
intersection formed by the northerly side of Payne 
Street and the westerly side of Montgomery Avenue."
Only one line in the universe satisfies this 
condition and common certainty exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(f); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Nardecchia's contention that the boundary description lacks 
common certainty because no bearing is given at page 13, line 10, 
is simply wrong:

21



The omission of reference to a bearing at page 
13, line 10 is irrelevant since that is the only- 
error in the entire description and as conceded 
by Mr. Nardecchia (statement, p. 4; record, p. 127) 
with the presence of only one point of deficiency 
"a forced closure could compute the bearing and 
distance giving a unique description. Since the 
remainder of Nardecchia's claimed deficiencies are 
without merit, as discussed below, the unique 
description is ascertainable and common certainty 
exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(g); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Meritless is Nardecchia's claim (Statement, p. 5) that the 
description is defective at page 13, line 13 since no bearing is 
given and one supposedly cannot go off at a right angle from a 
preceding line with respect to which no bearing was given:

At page 13, line 13, the description runs easterly 
at right angles to the westerly side of Montgomery 
Avenue. The westerly line of Montgomery Avenue is 
well established, of record, and obviously exists 
with common certainty. A line perpendicular to such 
a street line moving (as a course) "...to a point 
distant 100 feet from the westerly side of Lawrence

22



Avenue (as a distance) moves from a finite point to 
a finite point. Property descriptions including 
courses which are recited either parallel or 
perpendicular to streets upon which they front are 
commonplace in New York State.

[Affidavit of Donald J. DeBerardinis, at para. 9(h); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Nardecchia's claim (Statement, p. 5) that at page 13, line 
16 the description is defective for lack of a bearing and because 
of a reference to the boundary line running parallel to a street 
line is frivolous:

At page 13, line 16 the description runs in a 
definite direction (northerly and parallel with 
the westerly side of Lawrence Avenue) for a 
definite distance (400 feet).

[Affidavit of Donald J. DeBerardinis, at para. 9(i); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Without substance is Nardecchia's next complaint, that at 
page 13, line 20 the description is defective for lack of a 
bearing or distance.

23



At page 13, line 20 the description runs from a 
finite point westerly across the Sprain Brook 
Parkway to a finite point measured by metes and 
bounds from a fixed monument shown on a filed map.

[Affidavit of Donald J. DeBerardinis, at para. 9(j); Affidavit of 
J. Charles Boolukos, at para. 3(c).

Spurious is Nardecchia's contention that the boundary 
description is defective at page 14, line 31 for lack of a 
bearing and because a distance is approximated.

At page 14, line 31 the description runs from a fixed, 
definite point northwesterly to a fixed and definite 
point, namely the intersection of the westerly side 
of Saw Mill River Road and the southerly side of 
Fairview Park Drive.

[Affidavit of Donald J. DeBerardinis, at para. 9(k); Affidavit of 
J. Charles Boolukos, at para. 3(c).

Irrelevant is Nardecchia's contention (Statement, pp. 5-6) 
that at page 15, line 12 the description fails because the angle 
of the curve set forth is incorrect:

Even if the angle is inaccurately recited, that 
does not cause the description to fail. Since the

24



radius, direction and length of the curve are given, 
and since the curve runs from one finite point to 
another finite point, only one curve can satisfy 
the given conditions despite the alleged error.
Hence common certainty exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(1); Affidavit of 
J. Charles Boolukos, at para. 3(c).

Without merit is Nardecchia's next claim (Statement, p. 6) 
that at page 16, line 20 the description is flawed because the 
extension of a straight line is referenced without benefit of a 
bearing and with only an approximate distance:

At page 16, line 20 the description runs from a 
finite point, along the boundary of the "N.Y.C.
RR.P.D." and lands of the County of Westchester 
to a finite point at the southeasterly corner of 
lands shown on Filed Map 5673.

[Affidavit of Donald J. DeBerardinis, at para. 9(m); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Nardecchia's contention (Statement, p. 6) that the 
description is flawed because at page 17, line 15 there is no 
bearing or distance recited, is meritless:

25



At page 17, line 15, this line is a prolongation 
of the previous line which has a bearing of 
North 35 degrees 13 minutes 14 seconds East. By- 
definition the prolongation at page 17, line 15 
has a like bearing of North 35 degrees 13 minutes 
14 seconds East. That line runs to a finite point 
in Old Saw Mill Road, namely the division line 
between the Town of Greenburgh and the Town of 
Mount Pleasant. Common certainty thus exists.

[Affidavit of Donald J. DeBerardinis, at para. 9(n); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Spurious is Nardecchia's contention (Statement, p. 6) that 
at page 17, line 19 the description fails because of a reference 
to "generally parallel":

At page 17, line 19 the descriptive criteria is 
the division line between the Town of Greenburgh 
and the Town of Mt. Pleasant, with the references 
to said line being "generally parallel" obviously 
intended to show the general direction of the 
description along that division line, namely 
southeasterly from the definite point fixed at 
page 17,, lines 15-18 to a definite point in that 
division line where it is intersected by another 
line which is the prolongation of the division line

26



between two parcels shown on Filed Map #5673,
i .e ., from a fixed point along a fixed town 
boundary line in a southeasterly direction to 
a fixed point.

[Affidavit of Donald J. DeBerardinis, at para. 9(o); Affidavit of 
J. Charles Boolukos, at para. 3(c)].

Irrelevant is Nardecchia's next claim (Statement, p. 6) that 
at page 17, line 29 the description is defective by reason of its 
resort to "generally parallel" language:

At page 17, line 19 the description continues 
along the division line between the towns of 
Greenburgh and Mount Pleasant, again making 
reference to various courses and distances to 
illustrate the general direction along said 
line, from a fixed point to another fixed point 
in that division line.

[Affidavit of Donald J. DeBerardinis, at para. 9(p); Affidavit of 
J. Charles Boolukos, at para. 3(c).

Frivolous in the extreme is Nardecchia's contention that at 
page 18, line 5 the boundary description erroneously recites that 
there are "14 courses and distances" when according to Nardecchia 
there are only thirteen such courses and distances. Nardecchia

27



either cannot count or for lack of experience is incapable of 
recognizing a course and distance (as opposed to a finite point). 
At page 18:

There are thirteen courses and distances which 
are described beginning with the word "South".
After the recital of those thirteen, the fourteenth 
is plainly set forth in the second from the final 
paragraph on page 18. Movement along a curve with 
an established radius and central angle, as set 
forth in that penultimate paragraph, .is a course 
and the distance is finite since the curve runs to 
a monument ("a point on the aforesaid Town division 
line, at the intersection of Old Saw Mill River 
Road and Grasslands Road (a/k/a Lower Cross Road).

[Affidavit of Donald J. DeBerardinis, at para. 9(q), emphasis in 
original; Affidavit of J. Charles Boolukos, at para. 3(c).

Finally Nardecchia's criticism of the last two pages of the 
boundary description (Statement, p. 7) as comprising a "litany of 
towns, owners, and filed maps which cannot equate into a 
mathematical translation necessary to constitute a metes and 
bounds description, is patently absurd:

%

In fact the portion of the description contained 
in the last two pages is probably the most

28



absolutely precise portion of the description 
since it continuously runs along the aforementioned 
Town division line and makes direct reference while 
doing so, for monumentation purposes, to taking 
maps of the City of New York and the State 
Department of Transportation. These Department of 
Transportation maps are of very recent vintage and 
reflect the state of the art in engineering and 
surveying techniques. These City of New York maps 
are the taking maps for the construction of the 
City's aqueduct system; those maps are well known 
for their precision and accuracy.

[Affidavit of Donald J. DeBarardinis, at para. 9(r); Affidavit of 
J. Charles Boolukos, at para. 3(c).

In short it is readily apparent that Nardecchia had 
absolutely no business attempting to analyze the village boundary 
line since he manifestly was not competent to do so. The 
Supervisor's exclusive reliance upon Nardecchia for his 
determination that the boundary was imprecisely described thus 
must be reversed with a declaration that the boundary was 
described with common certainty [Affidavit of Donald J. 
DeBerardinis, at para. 10 (professional and expert opinion that 
boundary description drafted with "common certainty"; Affidavit 
of J. Charles Boolukos, at para. 3(b)(same)].

29



Several legal arguments advanced by Respondents' in a 
superficial attempt to avoid judicial scrutiny of Nardecchia's 
flawed analysis warrant brief attention because they highlight 
the frivolity of their instant motion. First Respondents argue 
on the basis of completely inapposite caselaw (Respondents' 
Memorandum of Law, pp. 1, 7) that this Court's role in reviewing 
the Supervisor's decision to reject the incorporation petition is 
comparable to that of an appellate court. Plainly the purpose of 
making that suggestion is to persuade the Court to consider 
nothing outside the four corners of the record of proceedings 
before the Town Supervisor. The suggestion is as meritless as it 
is disingenuous.

For as Respondents concede, albeit in a footnote and with 
the apparent intent of avoiding the imposition of sanctions for 
leaving unqualified an obvious misstatement of the law 
(Respondents' Memorandum of Law, p. 8, ftn), Village Law §2- 
210(1) unambiguously articulates a contradictory and controlling 
statement of the law regarding Article 78 proceedings, such as 
the one at bar, arising out of hearings on petitions to 
incorporate:

If the court determines that additional testimony 
or evidence is necessary for the proper disposition 
of the matter it may take such evidence or testimony 
or appoint a referee to take such evidence or 
testimony as it may direct and report the same to

30



the court with his findings of fact and conclusions 
of law which shall constitute a part of the 
proceedings upon which the determination of the 
court shall be made. The court may reverse or affirm 
on the basis of law and fact as determined by the 
court.

So much for Respondents' "appellate court" concept.

Indeed, given the conceded facts application of any such 
approach to resolution of this case would clearly work a 
perversion of justice. As discussed supra the Town's officials 
clearly manipulated the administrative hearing record in order to 
permit Nardecchia's "analysis" of the boundary description to 
become a part of that record in a way that was calculated to 
preclude it from being controverted at the time by proponents of 
incorporation. Having escaped review at the administrative level, 
it ill behooves Respondents to attempt to circumvent review at 
the judicial level as well.

Unpersuasive on this record is Respondents' argument 
(Respondents' Memorandum of Law, Point II) that Petitioners' 
challenge to Nardecchia's analysis in their amended petition is 
"worthless" because every reason why that analysis is defective 
has not been set .forth in that pleading. Since it is obvious that 
that analysis is absurd on its face, no apparent purpose would be 
served by detailing in a second amended petition every one of the

31



glaring defects which afflicts Nardecchia's thought processes. 
However if the Court believes that such a repleading is 
warranted, leave to do so should be freely granted. FRCP 15. One 
final issue warrants brief mention.

In the Town of Greenburgh's efforts to defeat the proposed 
incorporation of Mayfair Knollwood, the Town's Director of 
Community Development caused a map of the proposed village to be 
prepared from the boundary description contained in the 
incorporation petition (Amended Petition, para. 22; Volume II, p. 
271). See Miree v. DeKalb County, 433 U.S. 25, 27, ftn. (1977)(On 
motion to dismiss well pleaded allegations of complaint deemed 
true). That map was then utilized by the Town's officials as the 
springboard to their conclusion that the proposed village's 
boundary had been gerrymandered with surgical precision in order 
to exclude minorities. Thus, relying upon the details of that 
map, the Town Supervisor claimed inter alia:

The boundary zigs and zags approximately 1000 
feet along Route 9A to exclude a scatter site public 
housing project...The boundary carves around the 
Granada Condominium on three sides...The boundary 
carves around the Old Tarrytown Road School property... 
on three sides...The boundary carves through the 
neighborhood of North Elmsford... including its 
predominantly white area in the village but 
excluding its predominantly black area. The boundary

32



carefully excludes the black families of the River 
Park Apartments, Parkway Homes, Parkway Gardens, 
Hillside-Wyndowver, and of course, the public 
housing and low and moderate income housing areas of 
...Fairview.

(Exhibit 2 to Agresta Affidavit, p. 3).

Not surprisingly Petitioners then contended (Amended 
Petition, paras. 62-3, Fifteenth Claim) that since the boundary 
description contained in the incorporation petition was 
sufficiently certain so as to permit town officials to prepare a 
detailed map depicting that boundary with its every "zig and 
zag", that boundary necessarily was described in the 
incorporation petition with "common certainty" as required by 
Village Law §2-202(1)(c)(1). Indeed a boundary description on "a 
map showing existing streets and navigable waters" is in and of 
itself legally sufficient to constitute a description of the 
territory to be incorporated under the express terms of Village 
Law §2-202(1)(c)(1)(c).

Caught by the inconsistency of their positions the 
Respondents now seek, on their combined motion for dismissal 
and/or summary judgment, to explain away the town-drafted map on 
the basis of an obviously hearsay recital by Town Attorney Paul 
Agresta:

33



12. As part of their effort to overturn the
Town Supervisor's finding, petitioners do, however, 
allege that the boundary description should be 
deemed adequate because the Town was able to 
prepare a map showing the exclusion of minority 
residents from the proposed village. (See annexed 
Exhibit 5, a reduced version of the map that the 
Town prepared.) This argument is without merit.
First of all, the Town's map is based in part on 
a map that Mayfair Knollwood proponents themselves 
furnished to a local newspaper, which that 
newspaper published. At the time the incorporation 
petition was filed, the Town attempted to draw a 
map of the proposed village boundaries. That effort 
disclosed boundary gaps that could not be remedied 
by reference to the description submitted with the 
petition. To complete the drawing process, "boundaries 
were extrapolated based on what was believed to be 
intended in light of the newspaper map. The map 
that the Town thus developed, however, was never 
intended to describe the proposed village with 
"common certainty".

[Agresta Affidavit, para. 12; see Respondents' Memorandum of Law 
at p. 13 ("The Town in fact based its map on one circulated to 
the media by Mayfair Knollwood proponents")]. Respondents' 
strategic maneuvering must fail on this record for readily 
apparent reasons.

34



To the extent that the instant motion is made pursuant to
FRCP 12(b)(6), the factual allegations plead in the amended 
verified petition must be deemed true. Miree v. DeKalb County, 
supra. Hence the Petitioners' assertion that the town-created map 
of the proposed village was drawn on the basis of the boundary 
description in the incorporation petition is presently 
unassailable.

To the extent that the instant motion is made pursuant to 
FRCP 56 it is obvious that Respondents' moving papers are legally 
insufficient since supporting affidavits must be made "on 
personal knowledge" and "shall show affirmatively that the 
affiant is competent to testify to the matters stated therein."
Of course no extended analysis is required to conclude that the 
Town Attorney did not draft the subject map, otherwise he would 
surely have said so (see Agresta Affidavit, at para. 7 where, by 
way of contrast to his claims regarding the map, he affirmatively 
represents that he was present at a hearing and then recites 
certain events which occurred at that hearing and presumably in 
his presence). For the same reason it is evident that the Town 
Attorney lacks personal knowledge regarding the supposed 
extrapolation of boundaries and the source of the supposed map on 
the basis of which any supposed extrapolation was accomplished. 
Put differently, the Town Attorney would not be a competent 
witness and his self-serving sworn hearsay should be disregarded.

35



CONCLUSION

Respondents' motion should in all respects be denied.

Dated: White Plains, N.Y.
February 6, 1990

LOVET^P^ GOJ$D, ESQS .
By: sJ--Jonathan Lovett 
Attorneys for Petitioners 
180 k/ Post Road 
White Plains, N.Y. 10601 
914-428-8401

36



ADDENDUM



Opn No. 80-762

TOWNS—Powers and Duties (challenging proposed incorporations of village) 
STATE CONSTITUTION, ARTICLE VUI, § 1; TOWN LAW, § 116(13); VIL­
LAGE LAW, §§ 2-206, 2-208: A town may not use town funds or town employ­
ees to prepare a proposed budget or other document for the purpose of 
showing residents of a proposed village the cost of incorporating or operat­
ing a village since a town has no legal standing to oppose the creation of a 
village and its intrusion into the incorporation process would be a partisan 
political act rather than an exercise of its proper governmental powers.

This is in reply to your letter concerning the proposed Village of Islandia. You 
stated in your letter that the town officials of the Town of Islip, in which Islandia 
would be located, are opposed to the incorporation and have directed Town employees 
to prepare a proposed budget and other documents to show the residents of the pro­
posed village the cost of incorporating and operating a village. You ask the following 
questions with regard to this situation:

(1) May the Town incur any expenses in preparing a proposed budget and/or any 
other documents which would bear on the question of the wisdom of voting for the 
proposed village?

(2) May the Town pay for mail and/or otherwise distribute literature or information 
to the residents within the proposed village on the issue of incorporation of the vil­
lage?

(3) If the answer to question 2 is yes, is the town restricted in the type and contents 
of information it may disseminate to the public and cun it express any viewpoint, 
directly or indirectly, concerning the proposed village? •

Municipal corporations are creatures of the State and have only such powers and 
authority as is conferred upon them by the Legislature and powers reasonably incident 
thereto (Whittaker v Village of Franklinville, 256 NY H, 191 NE 716 [1934]; Hansell v 
City of Long Beach, 61 AD2d 84, 401 NYS2d 271 [2nd Dept, 1978]; Torsoe Bros, v Bd 
of Trustees, 49 AD2d 461, 375 NYS2d 612 [2nd Dept, 1975]). We can find no statutory 
authority for the expenditure of town funds for the purpose of advising residents on 
the incorporation of a village. It is true that section 116(13) of the Town Law allows a



210
town to incur expenses for the publication and distribution of reports relative to its 
fiscal affairs, but this would not include financial reports of a proposed village since 
the finances of a village are not directly related to the fiscal affairs of a town.

Under the Village Law, the supervisor of the town encompassing the proposed vil­
lage is required to hold a public hearing on the petition for incorporation to determine 
its legal sufficiency (Village Law, §§ 2-202, 2-208). Aside from this hearing and deter­
mination, there is no other role which the town or its officers may play in the incorpo­
ration of a village. There is no authority for them to hold hearings on the advisability 
of incorporation or to take any action which would otherwise affect such incorporation.

Because the town has no legal standing to oppose the incorporation of a village, the 
activities being carried on by the town are political in nature rather than governmen­
tal. The courts have recognized that public funds should not be used for political 
activity. In Stern v Kramarsky, 84 Misc2d 447, 375 NYS2d 235 [1975], where a State 
agency was using public funds to encourage voters to approve a proposed constitu­
tional amendment, the court said:

“The spectacle of State agencies compaigning for or against proposi- 
'  tlons or proposed constitutional amendments to be voted on by the

public, albeit perhaps well-motivated, can only demean the demo­
cratic process. As a State agency supported by public funds they 
cannot advocate their favored position on any issue or for any candi­
dates, as such. So long as they are an arm of the State Government 
they must maintain a position of neutrality and impartiality.
It would be establishing a dangerous and untenable precedent to 
permit the government or any agency thereof, to use public funds to 
disseminate propaganda in favor of or against any issue or candi­
date. This may be done by totalitarian, dictatorial, or autocratic 
governments but cannot be tolerated, directly or indirectly, in these 
democratic United States of America. This is true even if the posi­
tion advocated is believed to be in the best interest of our country.
To educate, to inform, to advocate or to promote voting on any issue 
may be undertaken, provided it is not to persuade nor to convey 
favoritism, partisanship, partiality, approval or disapproval by a 
State agency of any issue, worthy as it may be.
Public funds are trust funds and as such are sacred and are to be 
used only for the operation of government. For government agencies 
to attempt to influence public opinion on such matters inhibits the 
democratic process through the misuse of government funds and 
prestige. Improper expenditure of funds, whether directly through 
promotional and advertising activities or indirectly through the use 
of government employees or facilties cannot be countenanced (NY 
Const, art VII, § 8, art VLll, § 1). People of all shades of opinion and 
belief contribute these funds from one source or smother. No agency 
may misuse any such funds for promoting its own opinions, whims 
or beliefs, irrespective of the high ideals or worthy.' causes it es­
pouses, promotes or promulgates.”

Although the Stem  case dealth with a State agency and a proposed constitutional 
amendment, the principles stated therein are equally applicable to any level of govern­
ment which engages in political activity.
December 11, 1980 
Miss Gloria M. Rosenblum 
Town of Islip