Denied Trumplers plan to proceed against village

and Nicole Fay Barr

ALTAMONT — Nancy and Michael Trumpler are staying the course, pursuing legal action against the village after a Nov. 10 Supreme Court decision denying their motion for summary judgment, said their lawyer, Michael Englert.
"It is going forward unless it is resolved among the parties," said Englert yesterday. "We have no choice but to proceed with the lawsuit, which entails discovery and presumably a trial."
The Trumplers, who had sought no money, face a $17 million lawsuit from developer Jeff Thomas who claims "interference" with a proposed senior housing development and they face counterclaims of millions of dollars from the village of Altamont.
Asked if the Trumplers were disappointed in the judge’s Nov. 10 ruling, Englert said, "You’re hopeful you can end the litigation....Nobody wants to go through a year-and-a-half or two years of litigation."

The Nov. 10 decision, handed down by Acting Supreme Court Justice Cathryn M. Doyle almost eight months after the Trumplers started legal action, offers no resolution for the water-strapped village, the eager developer, or the property owners who maintain the law was not followed.

A motion for summary judgment is a request for the judge to rule on a case with no further evidence because the law and the facts are so clear; it is an expedited decision without trial.

If Doyle had granted a summary judgment, the case could have been resolved without trial.
"The impact of a denial is basically none," said Englert.
He had believed the law was clear, he said. "This just simply means the lawsuit goes forward. None of our claims have been denied or thrown out...They are still viable," he said. "Judges usually err on the side of giving people their day in court."
Altamont’s mayor, James Gaughan, sees the denial of a summary motion differently. He said Tuesday that he is respectful of the Trumplers’ right to seek a decision. But, he said, "Now it’s time to say, ‘Hey folks, you tried. That’s it.’....I assume they’ve spent a lot of money already."
Gaughan went on, "We’re pleased with the judge’s decision."
He said, "The Trumplers took their best shot and they came up short. It’s very unlikely there’s any other facts to help them go forward....It’s up to them, but I hope this decision brings a sense of reality."
"The ball is in their court," Gaughan said of the Trumplers.

If the Trumplers continue their case, Gaughan said, the village is prepared to defend itself; he’s confident the village will win.
However, Gaughan said, he hopes the Trumplers won’t continue the case. "All that will happen is lawyers will get more money and that’s really sad. It’s time for us to sit down and try to work on this," he said.

The village has so far spent about $20,000 for the litigation costs associated with the Trumplers’ lawsuit, Gaughan said. Village attorney E. Guy Roemer is being paid $125 per hour to defend the village against the Trumplers’ suit.

Asked about the village’s trying to recoup legal fees from the Trumplers and what the village would do if the Trumplers drop their case, Gaughan said he didn’t want to talk about negotiations in the newspaper.
"We’re not there yet," he said.

When The Enterprise asked Englert about the possibility of a negotiated settlement, he said, "As a lawyer, you always hope for the parties to get together to get an amicable solution." He declined comment on what would make the Trumplers settle.

Paul Wein, Thomas’s lawyer, told The Enterprise earlier that the $17 million suit wasn’t about money and, if the Trumplers dropped their suit, Thomas would drop his.

Thomas’s lawsuit against the Trumplers is still pending, Wein said Tuesday.
His only comment on Doyle’s decision was, "We’re pleased and not surprised."

Doyle’s decision

In March, the Trumplers, who own property on Brandle Road outside the village, where Altamont drilled wells, started legal action to see if their agreement with the village was valid.

They had agreed to let the village look for water on their property as the public water supply is limited.

In March of 2004, then-Mayor Paul DeSarbo signed a contract with the Trumplers stating the village could buy a piece of land, not to exceed five acres, at $25,000.

The Trumplers, who have said they wanted the water to go to village residents, balked when they learned Thomas had been promised village water by DeSarbo for a senior housing complex on Brandle Road, just over the village line.

In an eight-page decision, Judge Doyle outlines the background of the Trumplers’ action and addresses each of the four reasons they claim the agreement with the village is invalid and unenforceable. Mostly, she says, evidence is needed.

The Trumplers’ first assertion is that the Altamont Board of Trustees never authorized the option agreement.

Doyle said that, while the village board did not specifically authorize the contract with the Trumplers, as required by law, since the village is maintaining approval was granted through a series of resolutions, more evidence is needed.
"The village board never approved the contract," said Englert. "Most the resolutions cited by the village don’t pertain at all. To me, there’s no factual question. It’s all a matter of public record."

The Trumplers’ second assertion is that the agreement is illegal and unenforceable under state law since the village would be procuring and distributing water for the benefit of a multi-unit housing development constructed outside the village while the supply of water for villagers is insufficient.
Doyle cites village law that says the board "shall not sell nor permit use" of water if the supply for the village is insufficient. She notes, though, that "the record fails to contain a determination by the defendant [the village] that the supply of water for its inhabitants is insufficient...."

Accordingly, she says, a question of fact exists as to whether the village was authorized to sell water to an outside party.
The Trumplers’ third assertion is that the option agreement "fails to contain all essential and material terms to constitute an enforceable contract."

The Trumplers allege that the agreement provides no description or methodology to determine which acreage would be sold.
The judge cites a description from the agreement, which includes a relevant tax map parcel, and she concludes, "Accordingly, the property description contained in the option agreement is sufficient to defeat a motion for summary judgment and an evidentiary hearing is required to determine this issue..."
Finally, the Trumplers’ fourth assertion is that the village is in breach of the agreement "for failing to provide the consideration cited in the option agreement."
The Trumplers maintain that residential wells drilled on their property for their use as part of the agreement "are unusable for any purpose."

They had brought pictures to The Enterprise earlier showing brown water in their sink and bathtub.

Doyle cites an affidavit for the village from Tim McIntyre, Altamont’s superintendent of public works, stating that two wells were drilled and completed on the Trumplers’ property in 2004 and that the quality of the water was tested and approved by the Albany County Department of Health.
"Accordingly," Doyle concludes, "the plaintiffs have failed to establish their entitlement to judgment as a matter of law. The issue of whether the two residential wells comply with the option agreement is a question of fact, requiring resolution by a trier of fact following an evidentiary hearing."

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