Greenberg v. Veteran Respondents' Reply Memorandum in Support of Motion to Dismiss
Public Court Documents
February 1, 1990

Cite this item
-
Brief Collection, LDF Court Filings. Greenberg v. Veteran Respondents' Reply Memorandum in Support of Motion to Dismiss, 1990. 8ebe8e70-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b6fe3169-35db-475e-ba27-e69b29a0a4e6/greenberg-v-veteran-respondents-reply-memorandum-in-support-of-motion-to-dismiss. Accessed July 13, 2025.
Copied!
P A U L , W E I S S , R I F K I N D 1 2 8 5 A V E N U E O F T H E A M E R I C A S T E L E P H O N E ( 2 1 2 ) 3 7 3 - 3 0 0 0 T E L E C O P IE R (2 1 2 ) 7 5 7 - 3 9 9 0 T E L E X W U I 6 6 6 6 4 3 R A N D O L P H E. P A U L ( 1 9 4 6 1 9 5 6 ) L O U IS S W E IS S ( 1 9 2 7 - 1 9 5 0 ) J O H N F. W H A R T O N ( 1 9 2 7 - 1 9 7 7 ) A D R IA N W. D EW IN D L L O Y D K. G A R R IS O N J O S E P H S IS E M A N J A M E S B LE W IS P A U L J . N E W LO N M O R D E C A I R O C H L IN H O W A R D A. S E IT Z S A M U E L J . S IL V E R M A N N O R M A N Z E L E N K O C O U N S E L D O M IN IQ U E F A R G U E ** E U R O P E A N C O U N S E L W R IT E R S D IR E C T D I A L N U M B E R W H A R T O N 8 G A R R I S O N NEW YORK. NEW Y O R K 1 0 0 1 9 - 6 0 6 4 1 6 1 5 L S T R E E T . N. W. W A S H IN G T O N . D. C . 2 0 0 3 6 - 5 6 9 4 T E L E P H O N E ( 2 0 2 ) 2 2 3 - 7 3 0 0 T E L E C O P IE R ( 2 0 2 ) 2 2 3 - 7 4 2 0 T E L E X 2 4 8 2 3 7 PW A U R 1 9 9 . B O U L E V A R D S A IN T G E R M A IN 7 5 0 0 7 P A R IS . F R A N C E T E L E P H O N E ( 3 3 - 1 ) 4 5 4 9 3 3 .8 5 T E L E C O P IE R ( 3 3 - 1 ) 4 2 .2 2 6 4 .3 8 T E L E X 2 0 3 1 7 8 F 2 0 0 8 TW O E X C H A N G E S Q U A R E 8 C O N N A U G H T P L A C E . C E N T R A L H O N G K O N G T E L E P H O N E ( 8 5 2 ) 5 - 2 2 0 0 4 1 T E L E C O P IE R ( 8 5 2 ) 5 - 8 6 8 0 1 2 4 T E L E X H X 6 6 2 0 8 A K A S A K A TW IN TO W ER 1 7 - 2 2 . A K A S A K A 2 -C H O M E M IN A T O — K U . T O K Y O 1 0 7 . JA P A N T E L E P H O N E ( 8 1 - 3 ) 5 0 5 - 0 2 9 1 T E L E C O P IE R < 8 1 -3 ) 5 0 5 - 4 5 4 0 T E L E X 0 2 4 2 8 1 2 0 PW R W G T N E A L E M A L B E R T M A R K H. A L C O T T A L L A N J . A R F F A D A N IE L J . B E L L E R M A R K A B E L N IC K A L L A N B L U M S T E IN R IC H A R D S. B O R IS O F F J O H N F B R E G L IO D A V ID C . B R O D H E A D R IC H A R D J B R O N S T E IN JO S E P H E. B R O W D Y C A M E R O N C L A R K L E W IS R C L A Y T O N J A Y C O H E N JE R O M E A L A N C O H E N ED W AR D N C O S T IK Y A N J A M E S M. D U B IN L E S L IE G O R D O N F A G E N PETER L . F E L C H E R G E O R G E P F E L L E M A N B E R N A R D F IN K E L S T E IN M IT C H E L L S. F IS H M A N R O B E R T C . F L E D E R M A R T IN F L U M E N B A U M T E R E N C E J . F O R T U N E * M A X G IT T E R R IC H A R D D. G O L D S T E IN B E R N A R D H . G R E E N E JA Y G R E E N F IE L D G A IN E S G W A T H M E Y . I l l P E TE R R H A JE A L B E R T P. H A N D G E R A R D E. H A R P E R S E Y M O U R H E R T Z R O B E R T M H IR S H J A M IE P. H O R S L E Y * A R T H U R K A L IS H LE W IS A. K A P L A N A N T H O N Y B K U K L IN JE R O M E K U R T Z S T E V E N E. L A N D E R S R O B E R T L . L A U F E R W A LT E R F. L E IN H A R D T A R T H U R L . L IM A N M A R T IN L O N D O N J O H N P. M C E N R O E C O L L E E N M C M A H O N R O B E R T E M O N T G O M E R Y . JR . R O B E R T H M O N T G O M E R Y . JR D O N A L D F M O O R E M A T T H E W N IM E T Z K E V IN J . O B R IEN L IO N E L H O L M E R * J O H N J . O 'N E IL S T U A R T I. O R A N M A R C E. P E R L M U T T E R JA M E S L . P U R C E L L L E O N A R D V. Q U IG L E Y C A R E Y R R A M O S C A R L L . R E IS N E R S IM O N H. R IF K IN D S T U A R T R O B IN O W IT Z S ID N E Y S R O S D E IT C H E R R IC H A R D A. R O S E N S T E V E N B R O S E N F E L D P E TE R J . R O T H E N B E R G E R N E S T R U B E N S T E IN T E R R Y E. S C H IM E K J O H N A. S IL B E R M A N M O S E S S IL V E R M A N E IL E E N S. S IL V E R S S T E V E N S IM K IN R O B E R T S. S M IT H M A R IL Y N S O B E L T H E O D O R E C . S O R E N S E N J O H N C. T A Y L O R . 3R D A L L E N L . T H O M A S J U D IT H R. T H O Y E R J A Y T O P K I5 J O S E E. T R IA S D A V ID T . W A S H B U R N A L F R E D D. Y O U N G W O O D •NOT AD M ITTED TO NEW YORK BAR. ••C O N S E IL JU R ID IQ U E IN FRANCE ONLY. (212) 373-3234 February 12, 1990 Paul Agresta, Esq. Town HallTown of Greensburgh Tarrytown & Norwood Roads Elmsford, New York 10523 Greenberg v. Veteran Dear Paul: I have enclosed revisions of the brief and affidavit. Please call me Tuesday, and we will finalize everything. Sincerely, i Jay L. Himes Enclosurescc: All counsel for respondents FEDERAL EXPRESS a:2.txt[12] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________________ _ In the Matter of the Application of MYLES GREENBERG and FRANCES M. MULLIGAN, Petitioners, 89 Civ. 0591 (GLG) -against- ANTHONY F. VETERAN, et al.. Respondents. x RESPONDENTS' REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS OR,ALTERNATIVELY. FOR SUMMARY JUDGMENT Preliminary Statement The test for a boundary description, contained in Village Law § 2-202(1)(c)(1), is "common certainty" in the incorporation petition — not 20/20 hindsight in the midst of litigation. A petition that fails to pass this test is insufficient and cannot form the basis for creating a new municipal entity. The Second Department's Viola Hills affirmance further establishes the need for strict adherence to the statute. Matter of Viola Hills v. Conklin, Index No. 6985/85 (Rock. Co. Sup. Ct. Dec. 31, 1985), aff'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). Try as they may, petitioners cannot sweep under the rug all the deficiencies in the Mayfair Knollwood description. Although there may be grounds for dispute over the sufficiency 2 of some parts of the description, petitioners themselves acknowledge enough problems to confirm the Town Supervisor's conclusion that the description lacks common certainty. Accordingly, respondents' motion should be granted. Argument I PETITIONERS EFFECTIVELY ADMIT THERE ARE MULTIPLE DEFICIENCIES IN THE DESCRIPTION Interestingly, whoever prepared the Mayfair Knollwood description has not come forward to defend it. Instead, petitioners have submitted an affidavit by a title examiner — Mr. DeBerardinis — reviewing the description (as well as a "me too" affidavit by a land surveyor). But Mr. DeBerardinis' strained effort only highlights the lack of common certainty in the description. Either explicitly or implicitly, he acknowledges multiple problems. First, let us look at the beginning point for the entire description: "the intersection of the easterly side of Knollwood Road and the southerly border of the town of Mount Pleasant located at or about the center of said Grasslands Road." (BD, p. 1 Mr. DeBerardinis effectively concedes 1/ References to "BD" followed by a page ("p") and (often) (Continued) 3 that this point is uncertain. He says that, "[i]n point of fact the beginning point of the subject description was taken directly from the New York State Department of Transportation taking maps, on file in the office of the Westchester County Clerk . . . (DeBerardinis Aff. 1 9[b]; emphasis added) But the description itself does not say that. Mr. DeBerardinis therefore had to go to another source to reach his conclusion — which is part of the reason that the description lacks common certainty. Indeed, Mr. Nardecchia himself pointed out the absence of a filed map reference as a starting point. (Nardecchia St., p. 3) Mr. DeBerardinis took issue with his comment, but then did exactly what Mr. Nardecchia said needed 2 /to be done.-7 (Continued)a line ("l.”) number are to the Mayfair Knollwood boundary description, copies of which are included in both sides' papers. References to "DeBerardinis Aff." are to the opposing affidavit of Donald J. DeBerardinis, February 5, 1990. References to "Nardecchia St." are to the statement of Larry J. Nardecchia, Jr., a copy of which is annexed as Exhibit 3 to respondents' moving papers. 2/ There is, we recognize, a technically incorrect quality to Mr. Nardecchia's statement that a metes and bounds description is supposed to begin from a point on a filed map. A known point on a filed deed also will do. The key is to identify a publicly ascertainable point. Here, however, Mr. DeBerardinis' effort to establish the missing known point led him to a filed map — just as Mr. Nardecchia suggested. 4 The identified beginning point thus lacks a clear reference. The "at or about" modifier compounds the ambiguity. Mr. DeBerardinis does not dispute the uncertainty in the "at or about" language. He just ignores it. That is another example of why the description lacks common certainty. Second, Mr. DeBerardinis tries to impart meaning to the first shift away from a metes and bounds description: Running thence southerly a distance of approximately 25 feet to the northeasterly corner of lands now or formerly of Mount Vernon Trap Rock Corporation being at the intersection of the westerly boundary of Manhattan Park as shown on R.O. Map #1015 on a nnurse South 3° 56' 20" West a distance of 248.20 feet (BD, p. 11, 1. 26; emphasis added) In his words, "[t]he subject line moves 'southerly a distance of approximately 25 feet' to a finite point" on a filed map. (DeBerardinis Aff. 1 9[c]) Mr. DeBerardinis, however, ignores the underscored language, which renders incomprehen sible the prior references to direction, distance, and a filed map. He suggests no possible interpretation for this language. There is no common certainty. Third, Mr. DeBerardinis concedes the omission of a directional bearing in the following part of the description (DeBerardinis Aff. H 9[g]): Running thence easterly and at right angles to the westerly side of Montgomery Avenue a distance 285 feet to a point in the westerly side of Montgomery Avenue (BD, p. 13, 1. 10) 5 He would prefer to gloss over the defect, calling it "irrelevant" in view of Mr. Nardecchia's comment that, for a single defi ciency, "a forced closure could compute the bearing and distance giving a unique description." (Nardecchia St., p. 4) Mr. Nardecchia's remark, however, applies only where the description is stated entirely in metes and bounds, and only where there are no other defects. Neither condition exists here. Mr. DeBerardinis makes no other proposal to correct the error — nor could he. Fourth, Mr. DeBerardinis implicitly recognizes a defect in following part of the description: Running thence along a curve to the right with a radius of 731.0 feet, a central angle of 4°21' 09" a distance of 55.53 feet to a point (BD, p. 15, 1. 12) Mr. DeBerardinis suggests that the angle of the curve is "inaccurately recited," but that the radius, direction and length of the curve could be used to continue the boundary "despite the alleged error." (DeBerardinis Aff. f 9[1]) However, that solution assumes that the error is in the angle, and that all the other relevant dimensions are correct. The error may be in the stated radius or distance, or more than one dimension may contain an error. There is no way from the description to tell. 6 As is evident, this part of description tries to depict a curve, the end point of which is not identified by- reference to anything else (such as, for example, a street). In these circumstances, to determine the intended curve, all the mathematical components must be correct. If they are not, there is no way to ascertain the intended curve from the description itself. Moreover, while any two components may be applied mathematically to derive the third, the curve that results will differ, depending on which dimension is assumed to be inaccurate. Thus, all we do know is that there is at least one error; while several curves could be drawn, the intended curve is uncertain. Fifth, the description includes movement along the division line between the Town of Greenburgh and the Town of Mount Pleasant on a line "generally parallel" with identified courses and distances. (BD, p. 17, 11. 19 & 29) According to Mr. DeBerardinis, the concept "generally parallel" is "obviously intended to show the general direction of the description along the division line . . . ." (DeBerardinis Aff. K 9[0]) This, however, is Mr. DeBerardinis' gloss on the description; he does not claim that "generally parallel" is a recognized surveying concept. It is not. Finally, at one point, the description refers to the following 14 courses and distances, and then lists only 13 "South" courses and distances. (BD, p. 18) Mr.DeBerardinis 7 tells the Court that the 14th "is plainly" the next paragraph in the description. (DeBerardinis Aff. 1 9[q], referring to BD, p. 18, 1. 5) Mr. DeBerardinis' explanation is implausible because the descriptive format of the next paragraph is entirely different from the 13 courses and distances that preceded it. Whereas the first 13 are relative simple southeasterly referents, the "conscripted" 14th is a compli cated curve. Furthermore, the alleged 14th course and distance, unlike its "predecessors," begins with the expres sion "Running thence" — the convention used throughout the description to express new directional points, not the continuation of a series of courses and distances. Hence, Mr. DeBerardinis' forced rationalization is doubtful. In any event, the salient point is that, again, there is no way to tell from the description itself whether or not Mr. DeBerardinis is correct. These defects establish that the Mayfair Knollwood boundary lacks common certainty. The Town Supervisor correctly rejected the incorporation petition. The rest of petitioners' opposition to dismissal is a sideshow. II PETITIONERS CANNOT ESCAPE DISMISSAL The notion that the petitioners supposedly were improperly denied administrative review of the boundary issue 8 is academic. (Pet. Mem. 10-11, SO-Sl)1^ With their submis sion on this motion of further evidence — at least the substance they should have alleged in the review petition itself — they will receive adequate judicial review to remedy any alleged error. Although we do not concede peti tioners' suggestion that, by permitting receipt of new evidence, Village Law § 2-210(1) eviscerates the appellate review quality of this proceeding (see Pet. Mem. 30-31), we do not object to the introduction of new matter relevant to the boundary description issue. As we saw above, even after taking their best shot, the Town Supervisor's conclusion is still standing. The assertion that Town funds were improperly used on the Nardecchia review affords no justification for toler ating an incorporation petition with a defective boundary description. (Pet. Mem. 32-35) Formation of a municipal entity with an uncertain boundary is simply impermissible. If petitioners wish to press their claim, there are proper 4/ways to do so. 3/ References to "Pet. Mem." are to Petitioners' Memorandum in Opposition to Motion to Dismiss and/or for Summary Judgment. 4/ In fact, no Town funds were used. Mr. Nardecchia did the review on his own time. The issue, however, has no bearing on this proceeding. 9 Next, there is no merit to the argument that Educ. L. § 7208(e) renders Mr. Nardecchia "incompetent as a matter of law" to express his opinion regarding the boundary description. (Pet. Mem. 11) Mr. Nardecchia plainly did not "determine" a boundary within the meaning of § 7208(e). He only commented on someone else's attempt to describe one. The fact that he is a licensed professional engineer, not a land surveyor, goes only to the weight given to his opinion. See Cutro v. Duffy. 88 A.D.2d 1007 (3d Dept. 1982) (testimony by intern land surveyor was admissible). Indeed, Mr. DeBerardinis, petitioners' primary affiant, does not claim to be either a licensed land surveyor or a professional engineer; he works for a title company. Finally, petitioners' plea for discovery rings hollow. (Affidavit of Jonathan Lovett, sworn to February 6, 1990, % 7) As noted in our moving papers, a proper incorpo ration petition boundary description is one thing. A map illustrating exclusionary effect is another. The Town's ability to extrapolate the boundary — despite its deficien cies — furnishes no basis for ignoring the requirements of the Village Law. A round of discovery will not make the defects in the description — some of which even Mr. DeBerardinis recognizes — go away. 10 Conclusion The Mayfair Knollwood boundary description is riddled with defects. Maybe the title company that Mr. DeBerardinis works for would consider insuring it none theless. Title companies, after all, are in the business of taking calculated risks. But municipal entities are not formed that way. The appropriate judicial response is to affirm the Town Supervisor's decision, thus enabling the village propo nents to decide whether to start again. Respondents' motion should be granted. Dated: Elmsford, New YorkFebruary __, 1990 Respectfully submitted, PAUL AGRESTA, ESQ. Town Attorney Town of Greenburgh P.O. Box 205Elmsford, New York 10523 (914) 993-1546 Attorney for RespondentsAnthony F. Veteran and Susan Tolchin 11 CUDDY & FEDER 90 Maple Avenue White Plains, New York 10601 (914) 761-1300 By:___________________________Ruth E. Roth Attorney for RespondentsKaren Developments, Inc. and Robert Martin Company RUTH E. ROTH, ESQ. 90 Maple Avenue White Plains, New York 10601 (914) 761-1300 Respondent Pro Se PAUL, WEISS, RIFKIND, WHARTON & GARRISON 1285 Avenue of the Americas New York, New York 10019-6064 (212) 373-3000 By Jay L. Himes Attorneys for Respondents Anita Jordan, April Jordan, Latoya 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 12 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 Plains/Greenburgh Branch Of Counsel: Robert M. Hayes, Esq. O'Melveny & Myers Citicorp Center153 East 53rd Street, Room 5314 New York, New York 10022 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 a: 4.txt[7] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK _______________________________________ _ In the Matter of the Application of MYLES GREENBERG and FRANCES M. MULLIGAN, Petitioners, 89 Civ. 0591 (GLG) -against- ANTHONY F. VETERAN, et al., Respondents. REPLY AFFIDAVIT STATE OF NEW YORK )) ss. : COUNTY OF WESTCHESTER ) _____________, being sworn, states: 1. I am [POSITION. DESCRIBE LAND SURVEY BACKGROUND]. I submit this reply affidavit in support of respondents' motion to dismiss or, alternatively, for summary judgment. 2. I understand that the nature of this motion does not lend itself to a point-by-point response to peti tioners' opposing papers. Accordingly, I wish simply to set out background facts and terminology that I believe will be of assistance to the Court in considering this motion. 3. First, the matter of the beginning point of a land description. Mr. Nardecchia stated that "[a]11 metes and bounds descriptions are supposed to begin at a known point on a filed map." (Nardecchia Statement, p. 3) In response, Mr. DeBerardinis asserts that "[m]etes and bounds descriptions are supposed to begin from a known point, with r that one starts at the beginning of the description and draws the boundary on a map by plotting each point mathematically until the point of ambiguity. At that juncture, you can proceed no further. One can, however, continue the drawing by going to its end point — which, of course, corresponds to the starting point — and by working backwards. At the conclusion of that second process, the entire boundary will be drawn, except for two disconnected points. Once those points are connected by a straight line, a bearing and distance may be computed mathematically. The description may thus be completed. Today, computers commonly perform this task. 6. Forced closure is available only where the description has a single ambiguity. It has no application where there are two or more problems. Moreover, forced closure can be applied only to a description stated entirely in metes and bounds. If the description alternates between metes and bounds and other systems, forced closure is mathe matically impossible. A field survey would have to be done to try to establish the intended description. For this reason, a mixed descriptive system with one ambiguity lacks common certainty. 7. The Mayfair Knollwood incorporation descrip tion does, indeed, alternate between metes and bounds and filed map references. As such, the description is not 3 susceptible to forced closure. Moreover, there are multiple description defects. 8. Third, one part of the Mayfair Knollwood description describes "a curve to the right with a radius of 731.0 feet, a central angle of 4° 21* 09" a distance of 55.53 feet to a point." (Boundary Description, p. 15, 1. 12) The end point of this curve is not defined by any physical referent (such as a street, border or intersection). Hence, to plot the intended curve, all three mathematical components must reconcile to the prior point. Both sides agree, however, that there is an error here because the numbers do not reconcile. In their opposing papers, petitioners assume that the central angle measurement is incorrect, and they would use the other two components to "back into" the intended central angle. (DeBerardinis Aff. f 9[1]) Then, a curve could be plotted. 9. That is a solution, but not the only one. The error also might be in either the radius or distance lengths. Although any two of the three components may be used to derive the third, the curve that results will differ, depend ing on which component is assumed to be incorrect. The intended boundary would change accordingly. There is no way to tell from the description alone just where the error lies — or, indeed, whether there is one or more than one error. 4 All that can be established is that the numbers do not mesh. The intended curve is unknown. 10. At other points in the description, movement along the division line between the Town of Mount Pleasant and the Town of Greenburgh, "generally parallel" to identified courses and distances, is set forth. (Boundary Description, p. 17, 11. 19, 29) "Generally parallel" is not a recognized surveying term. Even Mr. DeBerardinis does not claim famil iarity with the term, although he does not try to interpret its intended meaning here. (DeBerardinis Aff. 9[o] & [p]) 11. Finally, the last page of the boundary descrip tion cannot fairly be called a "description" at all under recognized surveying practice. (Boundary Description, p. 19) It is simply a series of instructions to the reader to search out points on several maps in order to complete the boundary. It is not enough to say, as Mr. DeBerardinis does, that the maps themselves are accurate. (DeBerardinis Aff. 1 9[r]) A scavenger hunt just is not a land description. This approach, coming at the very end of the description, virtually compels 5 the interference that the village proponents, for whatever reason, gave up in their effort to craft a proper description. Sworn to before me this ____ day of February 1990 Notary Public 6