Appellate court overturns Toronto access decision

Matter back before local judge

By FRITZ MAYER

ALBANY, NY — A higher court has overruled a local judge’s determination that the public has no right to use a road in the gated community at the Toronto Reservoir to access the reservoir. On June 12, a five-judge panel of the New York State Appellate Court issued a unanimous ruling that Judge Robert Sackett improperly issued what amounted to a summary judgment in the case, essentially finding in favor of the Woodstone Companies, which owns the land in question.

The matter being considered in February 2007 was whether two Sullivan County residents, Mary Anne Burke and Herman Goldfarb, could intervene and join Smallwood resident Robert Barrett in his lawsuit against Woodstone Companies and NY Gen, a subsidiary of the Mirant Corporation, for prohibiting residents to cross a private road to get to the reservoir.

At the time, NY Gen held a license from the Federal Energy Regulatory Commission (FERC) to generate electricity at the dams in the reservoirs south of the Toronto Reservoir. As a condition of the license, NY Gen was required to provide public access to the reservoir over the disputed road. Alliance Energy has since acquired the license and the reservoirs.

Sackett ruled that Burke and Goldfarb could not intervene, and issued opinions on the basic questions underlying the entire case, such as whether the easement NY Gen had on the property could or should be applied to the public. The appellate court said that Sackett should not have ruled on the question because none of the parties involved had asked for a summary judgment of the matter.

The appellate court also said that the judge did not advise the parties that he was going to issue a summary judgment, and “it is apparent that other proof would have been offered by NY Gen to defeat a summary judgment if Woodstone had so moved.”

Barrett’s attorney, Russell Schindler, agreed that there is much more evidence to be presented in the case that would have a strong bearing on the outcome.

According to Richard Stoloff, the attorney for Woodstone, however, the decision amounts to a technicality. In Stoloff’s view, the opposing attorneys won’t present any new evidence that will alter Sackett’s opinion about the public’s right to access the reservoir.

Alliance released a statement saying the company is pleased with the ruling. Jane Rubinstein, a spokesperson for the company, said, “Now, we can hopefully work out a mutually agreeable resolution with Woodstone so the public can fully enjoy the unique recreational opportunities offered by the Eastern Recreational Area on the Toronto Reservoir, as required by our FERC license.”

Issues not directly related to the easement question remain to be addressed, such as the part of the case in which Barrett is suing Woodstone for false imprisonment and malicious prosecution for allegedly preventing him from leaving the disputed area of the reservoir in April 2005, and causing him to be arrested through what Barrett alleges is a false trespassing complaint.