UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------------------------------x

COLUMBIA GAS TRANSMISSION CORPORATION, 

 Plaintiff, Civil Action No.: 

 07-CV-5739 (KMK) 

 -against- 

 ECF CASE 

LEWIS PERRY, YOLANDA PERRY, ALEXANDER ROAD ASSOCIATION, INC., ANTHONY VULPONE, 

ESTATE OF ANTHONY VULPONE, ROBERT 

ANTALOCY, THOMAS HARRIS, DOLORES 

A. KORZ, JOHN P. KILDUFF, KENNETH LEE d/b/a 

“I CAN GET IT FOR YOU WHOLESALE”, SALLIE 

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. 

------------------------------------------------------------------------------x 

DEFENDANTS’ MEMORANDUM OF LAW 

IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

ZRAICK, NAHAS & RICH 

303 Fifth Avenue 

Suite 1201 

New York, New York 10016 

Attorneys for Defendants and Counter-Claimants 

Lewis Perry, Yolanda Perry, Alexander Road Association, Inc., Edward R. Mateo, Rosann 

P. Mateo, Adam Doran, Nicole Doran, Credence Development, Inc. and Richard Delisi 

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 1 of 7
 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”) respectfully submit this Memorandum of Law in Opposition to 

Plaintiff Columbia Gas Transmission Corporation (hereinafter “Columbia Gas”)’s 

Motion for Summary Judgment. 

PRELIMINARY STATEMENT

 Upon review of Columbia Gas’ Memorandum of Law and Declaration of 

Andrew G. Lake in Support of its Motion for Summary Judgment, it becomes 

apparent that Columbia Gas and Responding Defendants agree on a majority of the 

issues before the Court. In fact, as to the primary factual allegations posited by 

Columbia Gas, Responding Defendants agree that Columbia Gas must be cognizant 

of the safety of its employees, the Responding Defendants and the public in regard to 

its easement rights. Responding Defendants further agree with Columbia Gas that it 

must be able to readily locate, inspect and have access to its pipeline. However, in 

New York, prudent safety concerns and practical needs for use do not grant property 

rights. 

2

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 2 of 7
 Columbia Gas, in its Motion for Summary Judgment, fails to properly analyze 

the legal standard under which this Court must determine what is “reasonable and 

necessary in order to effectuate a grant” that is undefined. Rather than relying on 

New York State case law, Columbia Gas cites out of state decisions wherein 

Columbia Gas, as Plaintiff, successfully applied different facts under different law to 

demonstrate that fifty (50) feet is a safe, prudent and practical easement area. 

Further, and in stark contrast to Responding Defendants’ Declarations in support of 

their Motion for Summary Judgment, Columbia Gas fails to provide any evidence of 

its use of its easement right over time to support its contention for a fifty (50) foot 

permanent right-of-way. For these reasons in unison with Responding Defendants’ 

argument and facts as presented in their Motion for Summary Judgment, Responding 

Defendant’s oppose Columbia Gas’ Motion for Summary Judgment. 

ARGUMENT

 As stated by both parties in their moving papers, to define an undefined 

easement, where the metes and bounds of a right of way are not specified, the right 

must be construed as such right of way that was necessary for the purpose or use 

created. See Town of Ulster v. Massa, 144 A.D.2d 726 at 728, 535 N.Y.S.2d 460 

(3d Dep’t 1998) and LeSawyer v. Squillace, 14 A.D.2d 961 at 962, 221 N.Y.S.2d 

455 (3d Dep’t 1961). 

 New York State courts have long recognized that such a general standard is 

not sufficient to determine this issue. For example, what was “reasonable and 

3

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 3 of 7
necessary” in order to effectuate a grant in 1949 is, clearly, different for Columbia 

Gas’ larger pipe and equipment in year 2008. Arguably, Columbia Gas could posit 

any safety requirement or practical use standard, be it ten (10) feet or one hundred 

(100) feet, and address the cited holding in Town of Ulster. 

 As presented by Responding Defendants what is required, and where 

Columbia Gas fails in its argument, is a further evaluation by the Court of this 

standard, addressing: 1) the grant in light of the facts and circumstances existing at 

the creation date of the easement, 2) the intention of the parties participant to the 

original grant, and 3) the use by the parties over time. See Casellla v. Gallo, 197 

A.D. 825, 189 N.Y.S. 531 (3d Dep’t 1921); Oliphant v. McCarthy, 208 A.D.2d 

1079, 617 N.Y.S.2d 555 (3d Dep’t 1994)(citing Town of Ulster v. Massa); and Rivlin 

v. Sigalos, 9 Misc.2d 373, 172 N.Y.S.2d 882 (N.Y.Sup. 1957). 

 Instead of engaging in an application of the above legal standard to the facts 

in this matter, Columbia Gas relies on and cites its successful out of state 

adjudications adding its “only intent in maintaining a 50 foot right-of-way is safety 

and service”. Plaintiff’s Memorandum of Law, page 5, citing Lake Decl. ¶ 18. Rest 

assured, Responding Defendants agree with and support Columbia Gas’ safety and 

use concerns. However, when the facts are applied to the applicable legal standard, 

Columbia Gas is not entitled to a fifty (50) foot permanent right-of-way. 

 Responding Defendants provide in their Memorandum of Law and supporting 

Declarations (and need not reiterate here) a detailed analysis of the legal standard 

and facts in support of their Motion for Summary Judgment. However, of moment is 

4

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 4 of 7
the lack of evidence by Columbia Gas in its moving papers of its use over time in 

contrast to the facts as presented by Responding Defendants. 

 The Declaration of Andrew G. Lake contains one paragraph (#17) wherein it 

is stated, without facts in support, that Columbia Gas has “long protected this area 

[fifty (50) feet] from any encroachments-requiring the landowners to obtain 

Columbia Gas’ permission before allowing any decks, fencing or other 

encroachments from being placed within this fifty foot area”. Decl. of Lake, ¶ 17 

(emphasis added). Of note in support of this statement are pictures of the right-ofway taken in the fall of 2007. 

 The facts, as submitted to this Court by the Responding Defendants, 

demonstrate otherwise: 

A. Columbia Gas has not, over time, protected a fifty (50) foot area from 

encroachments. From 1997 to present, Columbia Gas has in fact enjoyed 

easement rights over an area of: approximately 19 feet concerning the 

Perrys’ property (Declaration of Lewis Perry, ¶ 9); approximately one 

foot concerning the Mateos’ property (Declaration of Edward R. Mateo, ¶ 

15); zero impact upon either Credence or Dorans properties (Declaration 

of Edward R. Mateo, ¶ 16; Declaration of Adam Doran, ¶¶ 8, 9), and; 

approximately 19 feet concerning the Delisi property (Declaration of 

Richard Delisi, ¶ 9). 

B. Individual homeowners, and not Columbia Gas, cleared and maintained 

the area subject to the easement. Declaration of Edward R. Mateo, ¶ 12.

5

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 5 of 7
C. Individual homeowners solicited Columbia Gas in regard to safety issues 

and their use of their property. Declaration of Edward R. Mateo, ¶ 9.

 The facts, when applied to the law, do not provide Columbia Gas with a fifty 

(50) foot right-of-way. Safety and practical use concerns, now necessary for 

Columbia Gas to continue with its Millennium Pipeline Project, do not grant 

Columbia Gas with a fifty (50) foot right of way. 

 Rather, the facts when applied to the law provide Columbia Gas with the 

rights it was provided by the original grant that have been established by use from 

the inception of the grant and are the recognized dimensions in existence on or about 

December 1997, which is the date prior to Columbia Gas’ exercise of its 

commitments under the Millennium Pipeline Project as the same pertains to 

Responding Defendants’ properties. 

 Finally, Responding Defendants note Columbia Gas does not, in its Motion 

for Summary Judgment, contest Responding Defendants’ claim for damages, which 

include attorney’s fees and costs, attendant to the defense of Plaintiff’s claims. 

CONCLUSION

 For the reasons above stated, and upon review of the facts and pertinent case 

law, Responding Defendants oppose Plaintiff Columbia Gas Transmission 

Corporation’s Motion for Summary Judgment. 

6

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 6 of 7
7

Dated: June 17, 2008 

 Respectfully submitted, 

 ZRAICK, NAHAS & RICH 

By: /s/ Stuart E. Nahas _ 

 Stuart E. Nahas, Esq. (SN-8206) 

 303 Fifth Avenue 

 New York, New York 10016 

 (212) 686-0855 

Attorneys for Defendants and CounterClaimants Lewis Perry, Yolanda Perry, 

Alexander Road Association, Inc., Edward R. 

Mateo, Rosann P. Mateo, Adam Doran, Nicole 

Doran, Credence Development, Inc. and 

Richard Delisi 

Sen/2007-16/Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment 

Case 7:07-cv-05739-KMK Document 66 Filed 06/18/2008 Page 7 of 7