UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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COLUMBIA GAS TRANSMISSION CORPORATION, 

 Plaintiff, Civil Action No.: 

 07-CIV-5739 (KMK) 

 -against- 

 ECF CASE 

LEWIS PERRY, YOLANDA PERRY, ALEXANDER 

ROAD ASSOCIATION, INC., ANTHONY VULPONE, 

ESTATE OF ANTHONY VULPONE, ROBERT DECLARATION IN 

ANTALOCY, THOMAS HARRIS, DOLORES OPPOSITION TO 

A. KORZ, JOHN P. KILDUFF, KENNETH LEE d/b/a PLAINTIFF’S ORDER 

“I CAN GET IT FOR YOU WHOLESALE”, SALLIE TO SHOW CAUSE 

E. HARMON, PAUL RUGGERIO, MICHELLE 

RUGGERIO, TERRANCE DONNARY, ANDREW PERNA, 

KAREN PERNA, ROBERT McMAHON, CARL McMAHON, 

KELVIN M. LEWIS, MARCHELLE KIRBY, JHON 

GORDON, RUTH MONROE, EDWARD R. MATEO, 

ROSANN P. MATEO, ADAM DORAN, NICOLE DORAN, 

CREDENCE DEVELOPMENT, INC., RICHARD DELISI, 

ADELAIDE FAULKNER, PAUL ESPEL, CAROL ESPEL, 

DAWN FORNOFF, RICHARD BURTON, GARY MARINA, 

and JOHN DOE NO. “1” through “10”, inclusive, the names 

of the last ten defendants being ficticous, the true names 

being unknown to plaintiff, the parties intended being 

those having an ownership interest in property effected 

by a certain easement described in the complaint, 

Defendants. 

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 Stuart E. Nahas declares under penalty of perjury: 

1. I am a partner of Zraick, Nahas & Rich, attorneys for Defendants Lewis Perry and 

Yolanda Perry (the “Perrys”), Alexander Road Association, Inc. (“ARA”), Edward R. 

Mateo and Rosann P. Mateo (the “Mateos”), Adam Doran and Nicole Doran (the 

“Dorans”), Credence Development, Inc. (“Credence”) and Richard Delisi (“Delisi”) 

(collectively the “Responding Defendants”). I am fully familiar with the facts set forth 

Case 7:07-cv-05739-KMK Document 47 Filed 10/03/2007 Page 1 of 8
herein and submit this Declaration pursuant to 28 U.S.C. § 1746 in opposition to Plaintiff 

Columbia Gas Company’s (“Columbia Gas”) Order to Show Cause for Entry of Default 

Judgment and Preliminary Relief. 

PRELIMINARY STATEMENT

 

2. Responding Defendants do not oppose that portion of Columbia Gas’ Order to 

Show Cause seeking entry of Default Judgment against certain Defendants which 

have failed to respond or otherwise appear in this matter. Responding Defendants 

oppose Columbia Gas’ request for a Preliminary Injunction. 

INTRODCUTION

3. Columbia Gas’ recitation of the facts in its Introductory Paragraphs 2 and 3 of 

the Declaration of Scott S. McKessy are uncontroverted. However, in Paragraph 4 

of said Declaration, Responding Defendants’ position posited in its Answer and 

Counter Claim has been misstated. As posited by Columbia Gas “...a couple of the 

defendant landowners have taken the position that the rights granted under 

Columbia’s easement do not allow Columbia or its assigns to do those things which 

the express terms of the easement authorize Columbia to do – namely: perform

construction upon the existing pipeline.” See McKessy Declaration in Support of 

Preliminary Relief, page 2, ¶ 4. 

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4. Responding Defendants in their Answer and Counter Claim do not oppose or 

deny Columbia Gas’ rights concerning the easement of record (attached as Exhibit B 

to Mr. McKessy’s Declaration in Support of Preliminary Relief). Rather, as has 

been argued by Responding Defendants and admitted by Columbia Gas (See

Declaration of Andrew Lake in Support of Preliminary Relief, page 6, ¶ 16), said 

easement is undefined as to the extent, either in metes and bounds, or in square 

footage, of Columbia Gas’ rights received in said grant. Responding Defendants are 

seeking the same relief as Columbia Gas – a determination by this Court of the scope 

and breadth of the rights maintained by each party as granted and reserved in this 

easement. 

5. Of concern to Responding Defendants, and the basis for their Opposition to 

this instant motion, is Columbia Gas’ embedded request for injunctive relief to begin 

its development activities in its Trojan Horse motion for Preliminary Relief seeking 

a determination by this Court of the scope and breadth of the undefined easement. 

6. Responding Defendants have not, and will not, oppose Columbia Gas’s need 

to timely begin its activities. However, Responding Defendants do oppose 

Columbia Gas’ extra-ordinary motion via Order to Show Cause to address, if not 

preliminarily determine, the scope and breadth of the undefined easement, which 

should be reserved for all parties to fully brief and argue before the Court. 

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ARGUMENT

7. Columbia Gas correctly states in its moving papers that a preliminary 

injunction is appropriate when “a party can show there is: (1) irreparable injury; (2) 

a likelihood of success on the merits; and (3) the balance of hardships tip in the favor 

of the movant .” See Plaintiff’s Memorandum of Law in Support of its Motion, page 

4. 

8. Responding Defendants do not contest prongs (1) and (3) of Columbia Gas’ 

request; prong (2) however is again the core issue of the matter before this Court. 

Although the issue of success on the merits should be determined via a full briefing 

to the Court on the facts and law as the same applies to this matter, Columbia Gas, in 

its moving papers, has not met this burden. 

9. On this particular issue, Columbia Gas posits in the Declaration of Scott S. 

McKessy and its Memorandum of Law that: 

A. Although the scope and breadth of the easement is undefined, it is 

reasonable and necessary to define the same as a Permanent Right of Way (ROW) of 

Twenty-Five (25) feet on either side of the existing pipeline (See Declaration of 

Andrew Lake in Support of Preliminary Relief, Page 6, ¶ 16); 

B. The ROW of Fifty (50) feet is stated to be “reasonable and necessary” in 

the “ordinary course of business” and required so as to comply with “applicable 

laws”, which are stated to be the Federal Energy Regulatory Commission (“FERC”) 

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approval (See Declaration of Andrew Lake in Support of Preliminary Relief, Page 6, 

¶ 16); and 

C. To protect Responding Defendants, Columbia Gas admits it has not 

assessed the same nor provided more than a superficial outline of their anticipated 

activities, yet estimates compensable damages to be $30,000.00 (See Declaration of 

Andrew Lake in Support of Preliminary Relief, Page 7, ¶ 23). 

10. Further, Columbia Gas posits in its Memorandum of Law in Support of its 

Motion for Preliminary Relief two (2) New York State cases as authority on the 

determination of the scope and breadth of an undefined easement. However, said 

authority is clearly distinguishable from the case at hand and fails to address all that 

must be considered when defining the scope and breadth of an undefined easement. 

11. In both Town of Ulster v. Massa, 144 A.D.2d 726, 535 N.Y.S.2d 460 (3d 

Dep’t 1998) and LeSawyer v. Squillace, 14 A.D.2d 961, 221 N.Y.S.2d 455 (3d Dep’t 

1961), the court held that where the physical extent of a right of way is not 

specifically defined the granted right must be construed as referring to such right of 

way that which is necessary for the purpose or use created. Town of Ulster 144 

A.D.2d at 728; LeSawyer 14 A.D.2d at 962. 

12. Both cases are clearly distinguishable from the facts at hand: in Town of 

Ulster, the parties had agreed amongst themselves as to the scope and breadth of the 

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undefined easement, and in LeSwayer, the scope of the easement was specifically 

granted for “ingress and egress” Id. 

13. Neither factual pattern found in Town of Ulster nor LeSawyer applies in the 

instant matter: there has been no agreement between the parties as to the scope and 

breadth of the easement nor is the same specifically limited to ingress or egress. 

Rather, the only parameters of scope and breadth to be found regarding this 

undefined easement are those indicated by the actual and accepted use by Columbia 

Gas of its easement rights for over Fifty (50) years. 

14. Moreover, applying Columbia Gas’ authority to the argument that it will be 

successful on the merits, this Court must find, as stated in Town of Ulster and 

LeSawyer, that its intended use is reasonable and necessary for the use as it was 

created. To do so requires this Court to construe the grant in light of the facts and 

circumstances existing at the date of the easement and the intention of the parties 

participant to the original grant. This is not addressed by movant in its moving 

papers.

15. Your declarant, as of yet, could not locate New York State case law as 

authority specifically addressing the factors to consider in determining “reasonable 

and necessary” use. However other jurisdictional decisions and law review articles 

reviewed by your declarant indicate that a determination of “reasonably and 

necessary” use in regard to an undefined easement must address: (1) the actual use 

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by the parties; (2) whether the actual use is necessary and proper under the easement 

grant, (3) the parties intent at the time of the grant, (4) the language of the grant and 

(5) pertinent surrounding circumstances. 

16. If the Court is to determine Columbia Gas’ likelihood of success on the 

merits, Responding Defendants argue the above factors need to be addressed by the 

Court. They are not addressed in Columbia Gas’ moving papers. 

17. What is presented to the Court by Columbia Gas is not proof of what is

“reasonable and necessary”; rather, the Court is provided a conclusory statement by 

Andrew Lake that Fifty (50) feet is the “reasonable and necessary” scope and 

breadth of this undefined easement because FERC requires it. The fact that FERC’s 

approval process mandated a particular scope and breadth of easement does not 

determine that indeed Fifty (50) feet was granted by Lillian Alexander to Columbia 

Gas’ predecessor in interest in 1949. Rather, as admitted by Columbia Gas, if it 

does not have the rights necessary for their intended work, they may proceed via 

condemnation to gain said rights. See Declaration of Scott S. McKessy, page 3, ¶ 9. 

18. Responding Defendants note the remaining authority in support of Columbia 

Gas’ request for relief is not controlling in this jurisdiction, and moreover addresses 

either specific and defined easements or the legal burdens and obligations in 

instances of defined easements. 

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19. As should be evident from the positions stated above, the request by Columbia 

Gas for a Preliminary Injunction is not warranted by its instant Order to Show Cause 

for the same. 

20. In the alternative, if the Court should grant Columbia Gas’s motion, 

Responding Defendants request a bond be posted by Columbia Gas which is based 

upon the actual assessed damages anticipated by its activities. 

21. Copies of this Declaration in Opposition to Plaintiff’s Order to Show Cause 

have been sent to Plaintiff via facsimile and overnight delivery (via Federal Express) 

on Wednesday October 3, 2007 at 4.30 p.m., with courtesy copy sent to the 

Honorable Judge Kenneth H. Karas via First Class Mail, posted October 3, 2007. 

WHEREFORE, it is respectfully requested that this Court deny Columbia Gas’ 

application for preliminary injunction or, in the alternative, if granted, that Columbia 

Gas post a bond based upon the actual assessed damages anticipated by its activities, 

and for such other and further relief as the Court may deem just and proper. 

I declare under penalty of perjury that the foregoing is true and correct. 

Executed on this 3rd day of October, 2007. 

 

 S/

Stuart E. Nahas 

Sen/2007-16/Declaration in Opposition to OSC 

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