Motion for Writ in Robert W Denz, Carol A Denz v. Virginia Remza, Paul E Whittaker, Bonnie J Whittaker, Lake May Homeowner'S Association, Inc.| Trellis.Law

On May 08, 2019 a Complaint,Petition was filed involving a dispute between Carol A Denz, Robert W Denz, and Bonnie J Whittaker, Lake May Homeowner'S Association, Inc., Paul E Whittaker, Virginia Remza, for Real Property - Other (restriction enforcement) in the District Court of Chenango County.

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FILED: CHENANGO COUNTY CLERK 08/24/2021 04:48 PM INDEX NO. 2019-5208
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 05/03/2022

SUPREME COURT :COUNTY OF CHENANGO
STATE OF NEW YORK
___________________________________________________________________________

Robert W. Denz and Carol A. Denz FIRST AMENDED
134 Youngs Road COMPLAINT
Greene, NY 13778,
Index No.: 2019-5208

Plaintiff(s)
RJI No.: 2020-0276-M
vs.

Justice Assigned:

Virginia Remza Hon. Joseph A. McBride
59 Leslie Avenue

Conklin, NY 13748

and

Paul E. Whittaker and Bonnie J. Whittaker
253 Ingraham Road

Greene, NY 13778,

and

Lake Mae Homeowner's Association, Inc.
253 Ingraham Road

Greene, NY 13778

Defendant(s)
___________________________________________________________________________

Plaintiffs, by and through their First Amended Complaint, complaining of the defendants,

respectfully show to the court by Law Office of Paul M. Price, Esq., their attorney:

1. That on or about the 30th day of October, 2007, Paul E. and Bonnie J. Whittaker

(hereinafter "Whittaker") filed in the office of the Chenango County Clerk as map number

Subdivision"
2007-72, a map entitled "Map of Lake Mae owned by Whittaker dated

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September 10, 2007, being in the Town of Greene, Chenango County, New York, Survey and

Map by Paul B. Koerts (The "Koerts Map").

2. The said map incorporated by reference a certain previously filed Declaration of

Restrictions (Restrictions) filed by Whittaker dated November 16, 2006 which were recorded in

the Chenango County Clerk's Office on December 5, 2006 as Instrument Number 2006-002540.

3. The Restrictions were and did touch and concern the entire premises conveyed to

Whittaker by Deed of David L. and Kandi Micha dated January 31, 2006 and recorded in the

Chenango County Clerk's Office on March 1, 2006 as Instrument Number 2006-00000443.

Hereinafter the "Whittaker Premises".

4. That thereafter said Whittaker offered for sale the lots shown on said map and

other lands encumbered by said Restrictions and to be developed as a high end residential district

and sold and conveyed divers of said lots with reference to said map for a valuable consideration

and promised and agreed to and with the purchasers of said lots and lands, including the

plaintiffs herein, that all of the lots shown on said map would be restricted in, among other ways,

as follows, to wit:

Each and every lot out of the Micha Parcel shall be used for a

single family home, agricultural, and recreational use only. There shall

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only be one dwelling constructed on any lot created from the Micha

Parcel. In home offices that are not accessed by the general public are

allowed. No other commercial use of the property is allowed. All uses

shall be in compliance with any local laws for the Town of Greene.

No residence shall contain less than 1100 square feet of living area

for the first floor.

Singlewide or doublewide mobile homes may not be placed or

stored on the premises.

5. The foregoing Restrictions were deemed to run with the land and be binding upon

the Grantees of the Subdivision and others including Plaintiff, their heirs and assigns forever.

6. All of the above prohibitions were part of a uniform scheme or plan to restrict all

of the lots shown on said map or properties otherwise encumbered by the Restrictions, like

Plaintiff's, against the use of the same for other than one single family home to be used for

residential purpose and no commercial purposes, not to contain less than 1100 square feet of

living area on the firstfloor.

7. Furthermore singlewide or doublewide mobile homes could not be placed or

stored on any of the encumbered premises.

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8. That thereafter the said Whittaker caused one of said lots shown upon the said

map to be sold and conveyed to Defendant Virginia M. Remza (hereinafter "Remza"), subject to

said Restrictions.

9. The conveyance to Remza was made by Warranty Deed dated June 9, 2008 and

recorded in the Chenango Clerk's Office on June 2008 as Instrument Number 2008-
County 16,

00001174. Hereinafter the "Remza Premises".

10. That the Plaintiffs herein, by deed of said Whittaker are the owners and in

possession of a lot encumbered and protected by said Restrictions, as follows, to wit:

Warranty Deed conveying title to Plaintiff's from Whittaker was dated December _,
2006 and recorded in the Chenango county Clerk's Office on December 5, 2006 as Instrument

Number 2006-00002539.

11. Defendant Whittaker continues to own of record a number of the lots in the

subdivision or property otherwise encumbered by the Restrictions.

12. That the deeds of conveyance to the Plaintiffs and Grantees of Whittaker,

including Remza, contained the same Restrictions against the use of said lots all as above set

forth.

13. That the said Restrictions were so inserted by Whittaker in all deeds of

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conveyance of lots shown on said map and other property sold to others, including Plaintiffs, and

constituted part of a general scheme or plan of subdivision of a tract of land subdivided on said

map and otherwise, and the Defendants herein took title by the deeds above-mentioned with

notice of the said general scheme or plan of subdivision and the Restrictions so inserted by.

Whittaker in all the deeds of conveyance of lots shown on said map and otherwise and sold by

said Whittaker constituted part of the same general scheme or plan of subdivision.

14. That the Defendants herein threaten to use said lots conveyed to them by the deeds

Premises"
aforesaid (the "Remza and the "Whittaker Premises") for purposes contrary to the

Restrictions, by allowing a trailer or trailers to be placed, stored or used, or used as a residence in

violation of said Restrictions.

15. That the use of the premises conveyed to the Defendants herein by the deeds

aforesaid or any portion thereof for such purposes will be in violation of said Restrictions which

are covenants running with the land and are applicable to all of the lots shown on said map and

other property, and that the use of said premises of Defendants or any portion thereof for such

purposes will cause irreparable damage to Plaintiffs and greatly diminish the value of said

Plaintiffs'
property upon which they have constructed a single single family home in full

compliance with said Restrictions.

16. That Plaintiffs have no adequate remedy at law.

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AS AND FOR A
SECOND CAUSE
OF ACTION AGAINST
THE DEFENDANTS, INCLUDING
IN THIS CAUSE DEFENDANT
LAKE MAE HOMEOWNER'S ASSOCIATION, INC.

17. Plaintiffs repeat and reallege the allegations set forth at paragraphs 1 - 16 of this

Complaint as if set forth herein in full.

18. That thereafter the said Whittaker caused the roadway set forth on the Koerts Map

which was part of the Whittaker premises to be transferred and conveyed to Defendant, Lake

Mae Homeowner's Association, Inc. (Hereinafter sometimes the "Homeowners Association".)

19. After Plaintiff purchased their premises they had permission from Defendant

Whittaker to use said roadway.

20. After a previous complaint by Plaintiff's concerning a violation of the

Restrictions, which was actually determined to be a violation of same, Defendant Whittaker

advised Plaintiffs they could no longer access the roadway which Defendant Whittaker had

transferred to the Homeowners Association.

21. Plaintiff understood the roadway was to be constructed in compliance with the

Town of Greene, New York road requirements as Defendant Whittaker had represented the intent

to have the road dedicated to the Town of Greene and ultimately become a public road.

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22. To date the roadway is not a public road.

23. Upon information and belief the Home Owner's Association is a New York Not

for Profit Corporation with an address at 253 Ingraham Road, Greene, NY 13778 with Hinman,

Howard & Kattell, LLP Attn: John Rosekrans, Esq., 70 Security Mutual Building, 80 Exchange

Street, POB 5250, Binghamton, NY 13902-5250 as the address to which NYS Department of

State will mail process if accepted on behalf of the Homeowner's Association.

24. Plaintiff has a vested indefeasible property right appurtenant to its premises by

way of the Restrictions.

25. Without access to the roadway Plaintiffs are wholly unable to protect their

property rights to be able to verify the Restrictions are being complied with.

26. Plaintiffs are as a result entitled to a right of way by necessity from the public

road, Youngs Road, over the private road as shown on the Koerts map.

AS AND FOR A
THIRD CAUSE
OF ACTION AGAINST
THE DEFENDANTS, INCLUDING
IN THIS CAUSE DEFENDANT
LAKE MAE HOMEOWNER'S ASSOCIATION, INC.

27. Plaintiffs repeat and reallege the allegations set forth at paragraphs 1 - 26 of this

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Complaint as if set forth herein in full.

28. Unbeknownst to Plaintiffs until recently Plaintiffs were entitled to be Optional

Members of the Homeowners Association as of right under and pursuant to its by-laws.

29. Defendants Whittaker and Homeowners Association never advised Plaintiff of

this right.

30. Plaintiffs having this right would alleviate the need for the prescriptive easement

set out in the second cause of action.

31. Defendants Whittaker, and upon information and belief, Homeowners Association

now claim the by-laws of the Homeowners Association were amended to in some way

specifically deny Plaintiff from having this right.

32. Defendants Whittaker and the Homeowners Association in connection with the

sale of lots of real property to Plaintiff and others in the subdivision are involved in business,

trade, commerce, or service as those terms are defined in New York State General Business Law

§349.

33. Defendants Whittaker and the Homeowners Association have and are engaged in

deceptive acts and/or practices in such business, trade, commerce or service as those terms are

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defined under New York State General Business Law other acts or practices -
§349, by among

deceiving Plaintiffs when they were asked by Plaintiffs about the Homeowners Association and

the possibility of joining when they never showed or presented the relevant by-laws to Plaintiffs;

now that Plaintiff's are aware of the by-laws taking the position that that section of the

by-laws no longer exists;

rather than acting in a businesslike way, acting like spoilt children in attempting to punish

Plaintiffs by this tact because they don't like that Plaintiffs, unlike Defendants Whittaker, do

intend to protect their property and property rights by having an understanding of the Restrictions

and understanding they were put in place to protect the Subdivision and the value of the lots.

34. All other current and potential future lot owners are impacted by Defendants

Whittaker and the Homeowners Association acts.

35. As a direct result of Defendant's violation of New York State General Business

Law §349 Plaintiff property has been devalued by an amount which can be determined by an

appraisal.

35. §349 of the New York State General Business law allows Plaintiff to also recover

from Defendants Whittaker and the Homeowner Association reasonable attorneys fees.

WHEREFORE, Plaintiffs demand judgment declaring and determining as follows:

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a) That a common and uniform plan to restrict the sale of lots shown on said "Koerts

Map"
map of Lake Mae Subdivision, Town of Greene, Chenango County, New York, and the

Micha Parcel for residential purposes and not for any commercial purposes whatsoever is now in

fullforce and effect.

b) That the following Restrictions, among others, are applicable to all of said lots

shown on said map and the Micha Parcel, to wit:

Each and every lot out of the Micha Parcel shall be used for a single family home,

agricultural, and recreational use only. There shall only be one dwelling constructed on any lot

created from the Micha Parcel. In home offices that are not accessed by the general public are

allowed. No other commercial use of the property is allowed. All uses shall be in compliance

with any local laws for the Town of Greene.

No residence shall contain less than 1100 square feet of living area for the first floor.

Singlewide or doublewide mobile homes may not be placed or stored on the premises.

The foregoing Restrictions shall be deemed to run with the land and shall be binding

upon the parties of the Defendants', their heirs and assigns forever.

c) That said Restrictions apply to the Whittaker premises, the Remza premises and to

each and every part thereof as well as to all other lots shown on said map and out of the Micha

Parcel.

d) That the use of the Defendant's said premises or any part thereof by placing or

storing a trailer on said premises will violate said Restrictions.

e) That the Defendants and all persons claiming under or through him/her

subsequent to the filing of the notice of pendency herein be perpetually enjoined and restrained

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from using any part of the premises in violation of said Restrictions.

f) That this court declare and determine the rights of the respective parties hereto not

herein specifically asked for.

g) That Plaintiffs have such other or different relief as the court may seem just and

proper.

h) That the Plaintiff's recover the costs and disbursements of this action from the

Defendants;

i) and that in addition specifically on the second cause of action against Defendant

Lake Mae Homeowner's Association, Inc. that Plaintiff's be delivered, and Defendant be ordered

to execute and deliver, a right of way over the roadway as set forth on the Koerts map;

j) and that in addition or alternatively specifically on the third cause of action

against Defendant's Whittaker and Lake Mae Homeowners Association, Inc. Plaintiffs be

awarded damages for loss of value to its property and reasonable attorneys fees or the Court

Order Plaintiffs continue to be entitled to be Optional Members, and

That Plaintiffs have such other and further relief as to the Court may be just and

proper, together with attorneys fees and the costs and disbursements of this action.

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Dated: , 2021

Binghamton, New York

Respec lly ubmitted,

Pa M. rice, sq.

Attorne for Plaintiff

Law Office of Paul M. Price, Esq
25 Main Street

Binghamton, NY 13905
Telephone: (607)-773-0711

State Bar No.: 1962653

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VERIFICATION

STATE OF NEW YORK )

) ss.:
COUNTY OF BROOME )

Robert W. Denz and Carol A. Denz, being duly sworn, depose and say that we are the plaintiffs
in the above-entitled action; that we have read the foregoing First Amended Summons & First
Amended Complaint, and that the same is true to our own knowledge, except as to those matter
stated therein to be alleged on information and belief, and as to those matter, we believe them to
be true.

obert W. Denz

Carol A. Denz

Severally su s rib d wo t before

me this f , 2021

No ary Public

PAUL MARNELLPRICE
PubHc. Statem ijew York
Notary
No 029R48¿9473 2
itRmome Coun
es¡aing
Commission ExpiresMarch 3 , ____-
My

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Index No.: 2019-5208 2021

SUPREME COURT: COUNTY OF CHENANGO
STATE OF NEW YORK

_________________________________________________________________________________

Robert W. Denz and Carol A. Denz,

Plaintiff(s),

vs.

Virginia Remza, Paul E. Whittaker and Bonnie J. Whittaker, Lake

Mae Homeowner's Association, Inc.

Defendant(s)

____________________________________________________________________________

FIRST AMENDED SUMMONS & COMPLAINT

LAW OFFICE OF PAUL M. PRICE, ESQ.

Attorney for Plaintiffs

Robert W. Denz and Carol A. Denz

25 Main Street, P.O. Box 1632

Binghamton, NY 13902-1632

(607) 773-0711

Due and personal serviceof thewithin is admitted this____ day of
, 2017.

Attorney for

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Case Info

Judge

Joseph A. Mcbride Track Judge’s New Case

Case No.

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Document Filed Date

August 24, 2021

Case Filing Date

May 08, 2019

County

Parties

Bonnie J Whittaker Defendant
Carol A Denz Plaintiff
Lake May Homeowner's Association, Inc. Defendant
LEWIS, RICHARD CHARLES Attorney for the Defendant
Paul E Whittaker Defendant
PRICE, PAUL M. Attorney for the Plaintiff
Robert W Denz Plaintiff
Virginia Remza Defendant
WEDLAKE, ROBERT H. Attorney for the Defendant
WEDLAKE, ROBERT H. Attorney for the Defendants
JEROME LEWIS Attorney
MARGARET PRICE Attorney

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Complaint,Petition: Robert W Denz, Carol A Denz v. Virginia Remza, Paul E Whittaker, Bonnie J Whittaker, Lake May Homeowner'S Association, Inc.

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