Preview
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ESSEX
$ !****** ****** * * $ !***!!!* *
*
ESSEX ONE, LLC,
*
Index No.
*
CV17-01 01
Plaintiff,
*
- - * SUMMONS
against
*
A. ROBERT *
PATRICIA BURLEY, A. BURLEY,
TODD ROBERT *
BURLEY, JILL BURLEY, THE .
*
A. BURLEY REVOCABLE TRUST, AND THE
*
PATRICIA A. BURLEY REVOCABLE TRUST
* r a
*
Defendants.
* * * + * * * * * + + * * * * $ * * * * * * * * * * *
To the above named defendant: m-
You Are Hereby Summoned to answer the complaint in this action, and to serve a copy of
your answer, or, if the complaint is not served with this summons, to serve a notice of appearance,
plainti[²'
on the attorney within twenty (20) days after the service of this summons, exclusive of the
day of service, where service is made by delivery upon you personally within the state, or within
thirty (30) days after completion of service where service is made in any other manner. In case of
your failure to appear or answer, judgment will be taken against you by default for the relie f
demanded in the complaint.
Trial to be held in the County of Essex
The basis of the venue is
1"
Dated this day >f trch, 2017
1·
By Matthew H McArdle, .
Attorney for Plaintiff
FISCHER, BESSETTE, MULDOWNEY & McARDLE, LLP
PO Box 420 - 43 Course Road
Golf
Malone, New York 12953-0420
Telephone: (518) 481-5000
To the above named Defendant
The nature of the action is Declaratory Judgment
The relief sought is Declaratory Judgment
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ESSEX
*********** c !****** c ` *** c ** *
ESSEX *
ONE, LLC,
* Index No.
*
Plaintiff,
*
- - *
against COMPLAINT
*
*
PATRICIA A. BURLEY, ROBERT A. BURLEY,
*
TODD BURLEY, JILL BURLEY, THE ROBERT
-0 0
A. BURLEY REVOCABLE TRUST, AND THE
* Ûx
PATRICIA TRUST *
A. BURLEY REVOCABLE
*
Defendants.
* * * * ** * * * ** * * * * * **** * *** * ** *
Plaintiff, by and through its attorneys, Fischer, Bessette, Muldowney & McArdle, LLP,
complaining of the defendants herein, respectfully states and alleges as follows:
1. Essex One, LLC is a limited liability company with a principal place of business
in Essex County, New York.
2. Upon information and belief, defendants Patricia A. Burley, Robert Burley, Todd
Burley and Jill Burley were and are residents of the Town of Waitsfield, County of Washington,
State of Vermont. Upon information and belief, defendants The Robert A. Burley Revocable
Trust and the Patricia A. Burley Revocable Trust are trusts created and enforceable under the
laws of the State of New York.
AS AND FOR A FIRST CAUSE OF ACTION
3. This action is brought by plaintiff pursuant to Article 15 in the Real Property
Actions and Proceedings Law to compel the determination of claims adverse to those of the
plaintiff in an easement encumbering the premises described as follows:
Certain premises located in the Town of Essex, Essex County, New York
and conveyed to Shipyard Properties, Inc. by Robert A. and Patricia A. Burley
by a deed dated March 23, 1990 and recorded in Essex County Clerk's Office on
March 26, 1990 at Book 964 of Deeds, Page 345. (hereinafter "the Property")
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
4. That on or about April 21, 2009, the Robert A. Burley Revocable Trust and the
Patricia A. Burley Revocable Trust granted a Deed of Exchange of Easements relating to the
Property to Shipyard Properties, Inc. by said Deed of Exchange of Easements was recorded in
the Essex County Clerk's Office in Book 1606, Page 311. Said deed is attached hereto as
Exhibit A.
5. In the aforementioned deed, Shipyard Properties, Inc. granted a limited easement
to the defendants herein by providing the following language:
That the party of the second part has given and by these presents does give
and grant to Robert Burley, Patricia Burley, Todd Burley and Jin Burley, so long
as any of them are alive, to use without charge Slip #7 on the current dock plan,
and further the party of the second part, on behalf of its successors and assigns
agrees that so long as either Robert Burley or Patricia Burley are alive Slip #6 will
not be leased to any boat with a length greater than 20 feet.
6. That on or about April 21, 2009 Shipyard Properties, Inc. transferred the title to
the above-described Property to Essex One, LLC by Warranty Deed; and said deed was recorded
in the Essex County Clerk's Office in Book 1606 of Deeds, Page 304. A copy of this deed is
attached hereto and made a part hereof and marked Exhibit B.
7. That said defendants unjustly claim an interest in said Property adverse to that of
the plaintiff, to wit: the adverse claim that the aforementioned easement provision provides them
with unlimited, year-long usage of dock slip #7 regardless of the dates of operation of the
marina, weather conditions in the area, or the necessary maintenance of the docks on the
Property.
8. That the marina on the Property which contains the docks at issue herein opens in
May and closes in October every year (the "Boating Season").
9. That each individual who leases a dock slip on the Property signs an agreement
which reiterates the policies of the Marina and requires the lease to abide by the same. A copy of
this agreement is attached hereto and made a part hereof and marked Ex. C.
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
10. That said agreement provides:
TERM: the term of this Agreement shall be for the 2017 summer season
(late May to early October for a period of approximately four months) and
shall not be automatically renewable. The exact term shall be subject to
weather conditions and at the sole discretion of the Shipyard.
11. That defendants are not entitled to use and possession of Slip #7 while the marina
is closed before or after the Boating Season.
12. That the defendants have lefta watercraft on the Property well after the operations
of the marina have closed, in violation of the plaintiff s right to exclusive use and enjoyment of
the Property.
13. That none of the defendants are unknown and none are infants or have any
disability. That any judgment granted herein will not affect any person or persons not being or
ascertained at the commencement of this action, who by any contingency contain then a devise
or grant could otherwise afterward become entitled to a beneficial estate of interest in the
aforesaid premises, and that every person and being who would have been entitled to such estate
or interest, if such had happened immediately before the commencement of the action is named
as a party hereto.
14. That the value of the use, occupation and enjoyment of said premises has been
wrongfully withheld from the plaintiff by the defendants. That any estate or interest that the
defendants have in the premises is limited in scope, and is ineffective against the title of plaintiff
during those times of the year when the marina is not in operation.
15. That the value of the despoliation of said property by the defendants and the
wrongful withholding of the use, occupation and enjoyment of said premises from the plaintiff is,
upon information and belief, in excess of the jurisdictional limits of all lower courts.
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
AS AND FOR A SECOND CAUSE OF ACTION
16. Plaintiff repeats and realleges paragraphs 1 through 15 of this Complaint as if
fidly set forth herein.
17. The rights of the parties herein are dictated under the aforementioned deeds
attached hereto as Exhibits A and B.
18. The marina on the property opens in May and shuts down in October of every
year.
19. Defendants are only entitled to usage of a dock on the Property without rental
during those times when the marina is open.
20. Under CPLR §3001 plaintiff is entitled to a declaratory judgment making a
determiuation that defendants are only entitled to usage of Slip #7 on the Property when the
marina is open, that plaintiff has the exclusive right to the same for the remainder of the year,
and the defendants are bound to usage of the Marina as prescribed under the standard slip
agreement attached hereto as Exhibit C, excluding payment for the same.
AS AND FOR A THIRD CAUSE OF ACTION
21. Plaintiff repeats and realleges paragraphs 1 through 20 of this Complaint as if
fully set forth herein.
22. Plaintiff is the rightful owner ofthe Property.
23. Defendants have left a watercraft in dock slip #7 beyond the operating season of
the marina without the legal right to do the same.
24. The watercraft was left without the permission of the plaintiff. Plaintiff has
routinely requested that defendant remove the watercraft since the time that the marina was
closed.
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
25. That by leaving the watercraft on the property without permission directly against
the requests of the plaintiff and after such a time when defendants had a legal right to do so,
defendants have trespassed upon the Property of plaintiff.
26. Such trespass has resulted in damages in excess of the jurisdictional limits of all
lower courts.
WHEREFORE, the plaintiff demands:
defendants'
1. A declaratory.judgment finding that lifetime uses of dock slip #7 on
the Property are limited to the dates of operation of the marina;
2. That the defendants and every other person claiming under them be barred from
any further interest in the property of whatsoever nature owned by the plaintiff
and herein described;
3. That defendants are bound to usage of the Marina under the standard requirements
Agreement"
and limitations of the Marina enumerated in the "Slip Rental with the
exclusion of the payment requirements therein;
4. A judgment of damages for the despoliation of the property and the withholding
of possession of said plaintiff; and
5. For such other and further relief as may be just and equitable together with the
costs and disbursements of this action.
Dated: March 1, 2017
ESSE'
FIS tR, 'TE, MULDOW &
Mc , P
By:
Matthew H. McArdle, Esq.
Attorneys for Plaintiff
Office and Post Office Address
43 Golf Course Road - P.O. Box 420
Malone, New York 12953-0420
Telephone: (518) 481-5000
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
EXHIBIT A
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
BOOK 160i3 PAGE JG
DEED OF EXCHANGE OF EASEMENTS
- Thousand Nine
THIS INDENTURE, Made the ay of April , Two
BETWEEN
THE ROBERT A. BURLEY REVOCABLE TRUST, dated June 13, 1994, Robert A. Burley
and PatriciaA. Burley as Trustees, 831 Mill Brook Road, Waitsfield, VT 05673, and THE
PATRICIA A. BURLEY REVOCABLE TRUST, dated June 13, 1994, PatriciaA. Burley and
Robert A. Burley as Trustees, 831 Mill Brook Road, Waitsfield, VT 05673, as equal tenantsin
common, hereinafter referred to as partiesof the firstpart,
and
SHIPYARD PROPERTIES, INC., a New York business conoration with an office located at
address at 831 Mill Brook Road, Waitsfield, Vermont 05673, hereinafter referred to as partyof
the second part,
WHEREAS, the partiesof the firstpart arethe owners of cenain premises located in
the Town of Essex, Essex County, New York and excepted and reserved by them in a certain
deed to Shipyard Properties, Inc. dated March 23, 1990 and recorded inthe Essex county Cledc's
Office on March 26, 1990 at Book 964 of Deeds, Page 345, said premises excepted and reserved
by the parties of the firstpart therein being referred to there and here as "the Boathouse
Property", and
WHEREAS, the party of the second partis the owner of certainpremises located in
the Town of Essex, Essex County, New York and conveyed to Shipyard Properties,Inc. by
Robert and PatriciaBurley by a deed dated March 23, 1990 and recorded inthe Essex county
Clerk's Office on March 26, 1990 atBook 964 of Deeds, Page 345, saidpremises conveyed to the
party of the second part therein being referred to thereand here as "the Shipyard Property", and
WHEREAS, the parties previously exchanged cenain easements by an Indenture
dated April 27, 1991 and recorded in the Essex County Clerk's Office on May 13, 1991 atBook
991 of Deeds, Page 78, and
WHEREAS, the parties of the firstpart and the party of the second part wish to grant
and exchange and toreceive and modify certain easements over thetwo adjacent parcels
Property"
described here as "the Boathouse and "the Shipyard Property".
WITNESSETH:
p That the partiesof the firstpart have given and granted and by these presents do give
O and grant unto the said party of the second part,itssuccessors and assigns forever the following:
1. Release and relinquish allright, title
and interest in and to an easement to use,
o repair,replace and install septic systems and leach fields and rights of ingressand egress in
connection therewith on the Shipyard Property previously reserved by Robert and Patricia
Burley
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
BOOK 1606 PMiE 312
Burley in a deed to Shipyard Properties, Inc.dated March 23, 1990 and recorded in theEssex
County Clerk's Office on March 26, 1990 at Book 964 ofDeeds atPage 345.
2. Release and alinquish allright,titleand interestinand to an easement to use
parking spaces in the existing parking lotlocated on theShipyard Property as previously reserved
by Robert Burley and Patricia Burley in a deed to Shipyard Properties, Inc.dated March 23, 1990
and recorded in the Essex County Clerk's Office on March 26, 1990 at Book 964 ofDeeds at
Page 345.
3. No boat trailersor other vehicles shall be parked overnight within the parking
easement area on the Boathouse Property except with a permit issued by the owner oroperator
of the Shipyard Property.
4. Confirmation of the existing easement for themaintenance and use of the existing
underground clectric power line between the power company's meter on the exteriorof the retail
store on the Boathouse Property and the Shipyard Property to thesouthwest.
5. An easement to install,
maintain, repair,use and operate a bridge within the
"A" Easement"
easement area shown on the attached Exhibit and identified there as "Connector
subject to the following conditions:
a. The bridge connector will include a bridge with a mechanical liftsystem and a
16 ft.clear span, as measured at a rightangle to the centerline of themarine railway, to allow
the launching and hauling of boats from the Boathouse Property.
b. When closed, the underside of the bridge
lift stmcture will be no tower than
101.5 feet above sea level.
c. Fixed portions of the connector bridge will be supported on piers and ramp up
gradually to the liftbridge level.
TO HAVE AND TO HOLD the premises herein granted unto the party of the second
part,itssuccessors and assigns fo ever.
AND WITNESSETH:
That the party of the second part has given and granted and by these presents does
give and grant unto the said parties of thefirstpart, theirrespective heirs and assigns forever the
following
1. Release and relinquish allright,titleand interest in and to an easement to use,
repair,replace and installseptic systems and leach fieldsand rights ofingress and egress in
connection therewith on the Boathouse Property as previously conveyed by Robert Burley and
PatriciaBurley to Shipyard Properties, Inc. ina deed dated March 23, 1990 and recorded inthe
Essex County Clerk's Office on March 26, 1990 at Book 964 of Deeds at Page 345.
2. An easement to maintain a placard sign for the Boathouse on the sign that
identifiesthe Essex Shipyard operation located in ornear itspresent location on the Shipyard
Property.
2
AURou0907Essement
Agreantza
90-00M5.wpe.Novemhcr
I1,2005.
Final
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
b
BOOK 1606 PAGE 313
3. That theparty ofthe second part has given and by these presents does give and
grant unto Robert Burley, Patricia Burley, Todd Burley and JillBurley, so long as any ofthern are
alive,to use without charge Slip #7 on the current dock plan, and further the party ofthe second
part,on behalf of itssuccessors and assigns agrees that solong as eitherRobert Burley or Patricia
Burley are alive Slip#6 will not be leased to any boat with a length greater than 20 feet.
TO HAVE AND TO HOLD the premises herein granted unto the parties of the first
part, theirheirs, successors and assigns forever,
AND THE SAID PARTIES OF THE FIRST PART COVENANT AS FOLLOWS:
That each easement granted above by the parties of thefirstpart isfor the benefit of
and appurtenant to thatland or any portion thereof described he ein as the Shipyard Property-
Each grant of easement shall run with the land and shallbe binding on and shallinute
to the benefit of the partieshereto, their respective heirs, successors or assigns.
AND THE SAID PARTY OF THE SECOND PART COVENANTS AS FOLLOWS:
That cach casement granted above by the party at thesecond part isfor the benefit of
and appurtenant to thatland or any portion thereof described herein as theBoathouse Property.
Each grant of easement, except as atherwise specificallystated, shall run with the
land and shall be binding on and shallinure tothe benefit of the partieshereto, their respective
heirs, successors or assigns.
IN WITNESS WHEREOF, the partieshave duly executed thisdeed the day and year
firstwritten above.
In presence of: R a6eRT A- b ve <--fy
Ro ertA. Burley, as Trustee of The Robert A.
Burley Revocable Tmst and The Patricia A. Burley
Revocable
O
Trust
n-rthe I vt e- Ey , \
f..q
A 87
m A c1
Patri is A. Burley as Trustee of The Robert A.
Burley Revocable Trust and The PatriciaA. Burley
Revocable Trust
Shipyard P operties, Inc.
By:
Robert A. Burley, President
[Tax Map Nos. 40.73-6-A1, 40-73-7-L1. 40.73-6-.8]
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07Ememan
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FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
BOOK 16{ 6 PME 31
State of New York
ss.:
County of Esse3
On the. 21st day of April in the year 2009 before me, the
undersigned, a Notary Public in and for said State, personally appeared Robert A. Burley ,
known to me or proved tome on the basis of satisfactoryevidence to be the individual
personally
whose name is subscribed to the within instnament and acknowledged to me thathe executed the
sarne in his capacity,and that by his signature on the instnanent, the individual, or the person upon
behalf of which the individual acted, executed the instmmenI.
Notary Public
State of New York KALDRALRNUCANE
ss.: NotagM
of Fasex s88508
County _of
On the 2 Ist day of April in theyear 2009 before me, the undersigned,
a Notary Public in and for saidState, personally appeared PatriciaA. Burley .personally known
to me or pmved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instmment and acknowledged to me that she executed the same inher
capacity, and that by her signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
dh - 4,ann1
Notary Public
State of New York KAtcRAK RNUCANE
SS--
M
Notaq PuMic.Etateof New
#4685513
County of Essex Resimg In EssexOpumly
9Æ-07
My commissionEntres
On the 21st day of April in the year 2009 before me, the
undersigned, a Notary Public in and for said State, personally appeared Robert A. Burley .
personally known to me or pmved to me on the basis of satisfactory evidence tobe the individual
whose name issubscribed tothe within instrument and acknowledged to me that he executed the
same in hiscapacity, and that by his signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the instrument.
Notary Public
KALORAK.FINUCANE
M
Nolan Pubile,StateofNew
#4685513
missionEntes@-
AOROBOfloHasemem November
Agreemere90-co3.10Apd. Final
I 1,2008.
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
500t. 1606 PAGE 315
Math . ST.
"A"
Exhibit
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
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FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022
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I .
All that serta&B parpal of lea6 10satti in the Town and
sesem and as New "FancB&. tra as
comaty of state T"rk, betay *
.descrihad in m dee4 to the partina of the first part hereto dated
May 31, 1989 and recorded 18 deed book 915 at page 193 ame betag .
bounded and described as folloung
at a 1.7 foot long 1/28 ires pipe set to.grade la
beginning
equerate end stoman in the sesumed easterly bounds of. Main
Street, 'also knona as Resent County Route 1sm. 224, mate ite pipe
being locatea st the morthwest corner of party of Richard mat
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running;
1. W 4h23' E as referenced to magnetic north 1k 3945 a
distance of 68.11 fami.along mai4 road bounds to a point, and
. running the following four .coutess along property of sack and
Joanne Halpin as described in deed hook 915 at paga 1843
2, a ashe3' 3 56,43 feet to ea. angle point;
3, 3 79656'-45," E 144.62 feet to the northeast corner of a
.one atory frame beat houses
9"-4S' W 16.50 feet alqas the east 54on. of maid hoat "
4. 8
Noese to ma angle potaty
5. s 1s"’e' E 439.71 feet to an angLe points
s. 4 7"-o5" u 391.24 feet alone the easterly heende et an .
sederwater grant to smary N. Ross date4 45me 13, 1833 and
recorded to sock 31 of
Preview
FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ESSEX $ !****** ****** * * $ !***!!!* * * ESSEX ONE, LLC, * Index No. * CV17-01 01 Plaintiff, * - - * SUMMONS against * A. ROBERT * PATRICIA BURLEY, A. BURLEY, TODD ROBERT * BURLEY, JILL BURLEY, THE . * A. BURLEY REVOCABLE TRUST, AND THE * PATRICIA A. BURLEY REVOCABLE TRUST * r a * Defendants. * * * + * * * * * + + * * * * $ * * * * * * * * * * * To the above named defendant: m- You Are Hereby Summoned to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, plainti[²' on the attorney within twenty (20) days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or within thirty (30) days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relie f demanded in the complaint. Trial to be held in the County of Essex The basis of the venue is 1" Dated this day >f trch, 2017 1· By Matthew H McArdle, . Attorney for Plaintiff FISCHER, BESSETTE, MULDOWNEY & McARDLE, LLP PO Box 420 - 43 Course Road Golf Malone, New York 12953-0420 Telephone: (518) 481-5000 To the above named Defendant The nature of the action is Declaratory Judgment The relief sought is Declaratory Judgment FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ESSEX *********** c !****** c ` *** c ** * ESSEX * ONE, LLC, * Index No. * Plaintiff, * - - * against COMPLAINT * * PATRICIA A. BURLEY, ROBERT A. BURLEY, * TODD BURLEY, JILL BURLEY, THE ROBERT -0 0 A. BURLEY REVOCABLE TRUST, AND THE * Ûx PATRICIA TRUST * A. BURLEY REVOCABLE * Defendants. * * * * ** * * * ** * * * * * **** * *** * ** * Plaintiff, by and through its attorneys, Fischer, Bessette, Muldowney & McArdle, LLP, complaining of the defendants herein, respectfully states and alleges as follows: 1. Essex One, LLC is a limited liability company with a principal place of business in Essex County, New York. 2. Upon information and belief, defendants Patricia A. Burley, Robert Burley, Todd Burley and Jill Burley were and are residents of the Town of Waitsfield, County of Washington, State of Vermont. Upon information and belief, defendants The Robert A. Burley Revocable Trust and the Patricia A. Burley Revocable Trust are trusts created and enforceable under the laws of the State of New York. AS AND FOR A FIRST CAUSE OF ACTION 3. This action is brought by plaintiff pursuant to Article 15 in the Real Property Actions and Proceedings Law to compel the determination of claims adverse to those of the plaintiff in an easement encumbering the premises described as follows: Certain premises located in the Town of Essex, Essex County, New York and conveyed to Shipyard Properties, Inc. by Robert A. and Patricia A. Burley by a deed dated March 23, 1990 and recorded in Essex County Clerk's Office on March 26, 1990 at Book 964 of Deeds, Page 345. (hereinafter "the Property") FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 4. That on or about April 21, 2009, the Robert A. Burley Revocable Trust and the Patricia A. Burley Revocable Trust granted a Deed of Exchange of Easements relating to the Property to Shipyard Properties, Inc. by said Deed of Exchange of Easements was recorded in the Essex County Clerk's Office in Book 1606, Page 311. Said deed is attached hereto as Exhibit A. 5. In the aforementioned deed, Shipyard Properties, Inc. granted a limited easement to the defendants herein by providing the following language: That the party of the second part has given and by these presents does give and grant to Robert Burley, Patricia Burley, Todd Burley and Jin Burley, so long as any of them are alive, to use without charge Slip #7 on the current dock plan, and further the party of the second part, on behalf of its successors and assigns agrees that so long as either Robert Burley or Patricia Burley are alive Slip #6 will not be leased to any boat with a length greater than 20 feet. 6. That on or about April 21, 2009 Shipyard Properties, Inc. transferred the title to the above-described Property to Essex One, LLC by Warranty Deed; and said deed was recorded in the Essex County Clerk's Office in Book 1606 of Deeds, Page 304. A copy of this deed is attached hereto and made a part hereof and marked Exhibit B. 7. That said defendants unjustly claim an interest in said Property adverse to that of the plaintiff, to wit: the adverse claim that the aforementioned easement provision provides them with unlimited, year-long usage of dock slip #7 regardless of the dates of operation of the marina, weather conditions in the area, or the necessary maintenance of the docks on the Property. 8. That the marina on the Property which contains the docks at issue herein opens in May and closes in October every year (the "Boating Season"). 9. That each individual who leases a dock slip on the Property signs an agreement which reiterates the policies of the Marina and requires the lease to abide by the same. A copy of this agreement is attached hereto and made a part hereof and marked Ex. C. FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 10. That said agreement provides: TERM: the term of this Agreement shall be for the 2017 summer season (late May to early October for a period of approximately four months) and shall not be automatically renewable. The exact term shall be subject to weather conditions and at the sole discretion of the Shipyard. 11. That defendants are not entitled to use and possession of Slip #7 while the marina is closed before or after the Boating Season. 12. That the defendants have lefta watercraft on the Property well after the operations of the marina have closed, in violation of the plaintiff s right to exclusive use and enjoyment of the Property. 13. That none of the defendants are unknown and none are infants or have any disability. That any judgment granted herein will not affect any person or persons not being or ascertained at the commencement of this action, who by any contingency contain then a devise or grant could otherwise afterward become entitled to a beneficial estate of interest in the aforesaid premises, and that every person and being who would have been entitled to such estate or interest, if such had happened immediately before the commencement of the action is named as a party hereto. 14. That the value of the use, occupation and enjoyment of said premises has been wrongfully withheld from the plaintiff by the defendants. That any estate or interest that the defendants have in the premises is limited in scope, and is ineffective against the title of plaintiff during those times of the year when the marina is not in operation. 15. That the value of the despoliation of said property by the defendants and the wrongful withholding of the use, occupation and enjoyment of said premises from the plaintiff is, upon information and belief, in excess of the jurisdictional limits of all lower courts. FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 AS AND FOR A SECOND CAUSE OF ACTION 16. Plaintiff repeats and realleges paragraphs 1 through 15 of this Complaint as if fidly set forth herein. 17. The rights of the parties herein are dictated under the aforementioned deeds attached hereto as Exhibits A and B. 18. The marina on the property opens in May and shuts down in October of every year. 19. Defendants are only entitled to usage of a dock on the Property without rental during those times when the marina is open. 20. Under CPLR §3001 plaintiff is entitled to a declaratory judgment making a determiuation that defendants are only entitled to usage of Slip #7 on the Property when the marina is open, that plaintiff has the exclusive right to the same for the remainder of the year, and the defendants are bound to usage of the Marina as prescribed under the standard slip agreement attached hereto as Exhibit C, excluding payment for the same. AS AND FOR A THIRD CAUSE OF ACTION 21. Plaintiff repeats and realleges paragraphs 1 through 20 of this Complaint as if fully set forth herein. 22. Plaintiff is the rightful owner ofthe Property. 23. Defendants have left a watercraft in dock slip #7 beyond the operating season of the marina without the legal right to do the same. 24. The watercraft was left without the permission of the plaintiff. Plaintiff has routinely requested that defendant remove the watercraft since the time that the marina was closed. FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 25. That by leaving the watercraft on the property without permission directly against the requests of the plaintiff and after such a time when defendants had a legal right to do so, defendants have trespassed upon the Property of plaintiff. 26. Such trespass has resulted in damages in excess of the jurisdictional limits of all lower courts. WHEREFORE, the plaintiff demands: defendants' 1. A declaratory.judgment finding that lifetime uses of dock slip #7 on the Property are limited to the dates of operation of the marina; 2. That the defendants and every other person claiming under them be barred from any further interest in the property of whatsoever nature owned by the plaintiff and herein described; 3. That defendants are bound to usage of the Marina under the standard requirements Agreement" and limitations of the Marina enumerated in the "Slip Rental with the exclusion of the payment requirements therein; 4. A judgment of damages for the despoliation of the property and the withholding of possession of said plaintiff; and 5. For such other and further relief as may be just and equitable together with the costs and disbursements of this action. Dated: March 1, 2017 ESSE' FIS tR, 'TE, MULDOW & Mc , P By: Matthew H. McArdle, Esq. Attorneys for Plaintiff Office and Post Office Address 43 Golf Course Road - P.O. Box 420 Malone, New York 12953-0420 Telephone: (518) 481-5000 FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 EXHIBIT A FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 BOOK 160i3 PAGE JG DEED OF EXCHANGE OF EASEMENTS - Thousand Nine THIS INDENTURE, Made the ay of April , Two BETWEEN THE ROBERT A. BURLEY REVOCABLE TRUST, dated June 13, 1994, Robert A. Burley and PatriciaA. Burley as Trustees, 831 Mill Brook Road, Waitsfield, VT 05673, and THE PATRICIA A. BURLEY REVOCABLE TRUST, dated June 13, 1994, PatriciaA. Burley and Robert A. Burley as Trustees, 831 Mill Brook Road, Waitsfield, VT 05673, as equal tenantsin common, hereinafter referred to as partiesof the firstpart, and SHIPYARD PROPERTIES, INC., a New York business conoration with an office located at address at 831 Mill Brook Road, Waitsfield, Vermont 05673, hereinafter referred to as partyof the second part, WHEREAS, the partiesof the firstpart arethe owners of cenain premises located in the Town of Essex, Essex County, New York and excepted and reserved by them in a certain deed to Shipyard Properties, Inc. dated March 23, 1990 and recorded inthe Essex county Cledc's Office on March 26, 1990 at Book 964 of Deeds, Page 345, said premises excepted and reserved by the parties of the firstpart therein being referred to there and here as "the Boathouse Property", and WHEREAS, the party of the second partis the owner of certainpremises located in the Town of Essex, Essex County, New York and conveyed to Shipyard Properties,Inc. by Robert and PatriciaBurley by a deed dated March 23, 1990 and recorded inthe Essex county Clerk's Office on March 26, 1990 atBook 964 of Deeds, Page 345, saidpremises conveyed to the party of the second part therein being referred to thereand here as "the Shipyard Property", and WHEREAS, the parties previously exchanged cenain easements by an Indenture dated April 27, 1991 and recorded in the Essex County Clerk's Office on May 13, 1991 atBook 991 of Deeds, Page 78, and WHEREAS, the parties of the firstpart and the party of the second part wish to grant and exchange and toreceive and modify certain easements over thetwo adjacent parcels Property" described here as "the Boathouse and "the Shipyard Property". WITNESSETH: p That the partiesof the firstpart have given and granted and by these presents do give O and grant unto the said party of the second part,itssuccessors and assigns forever the following: 1. Release and relinquish allright, title and interest in and to an easement to use, o repair,replace and install septic systems and leach fields and rights of ingressand egress in connection therewith on the Shipyard Property previously reserved by Robert and Patricia Burley FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 BOOK 1606 PMiE 312 Burley in a deed to Shipyard Properties, Inc.dated March 23, 1990 and recorded in theEssex County Clerk's Office on March 26, 1990 at Book 964 ofDeeds atPage 345. 2. Release and alinquish allright,titleand interestinand to an easement to use parking spaces in the existing parking lotlocated on theShipyard Property as previously reserved by Robert Burley and Patricia Burley in a deed to Shipyard Properties, Inc.dated March 23, 1990 and recorded in the Essex County Clerk's Office on March 26, 1990 at Book 964 ofDeeds at Page 345. 3. No boat trailersor other vehicles shall be parked overnight within the parking easement area on the Boathouse Property except with a permit issued by the owner oroperator of the Shipyard Property. 4. Confirmation of the existing easement for themaintenance and use of the existing underground clectric power line between the power company's meter on the exteriorof the retail store on the Boathouse Property and the Shipyard Property to thesouthwest. 5. An easement to install, maintain, repair,use and operate a bridge within the "A" Easement" easement area shown on the attached Exhibit and identified there as "Connector subject to the following conditions: a. The bridge connector will include a bridge with a mechanical liftsystem and a 16 ft.clear span, as measured at a rightangle to the centerline of themarine railway, to allow the launching and hauling of boats from the Boathouse Property. b. When closed, the underside of the bridge lift stmcture will be no tower than 101.5 feet above sea level. c. Fixed portions of the connector bridge will be supported on piers and ramp up gradually to the liftbridge level. TO HAVE AND TO HOLD the premises herein granted unto the party of the second part,itssuccessors and assigns fo ever. AND WITNESSETH: That the party of the second part has given and granted and by these presents does give and grant unto the said parties of thefirstpart, theirrespective heirs and assigns forever the following 1. Release and relinquish allright,titleand interest in and to an easement to use, repair,replace and installseptic systems and leach fieldsand rights ofingress and egress in connection therewith on the Boathouse Property as previously conveyed by Robert Burley and PatriciaBurley to Shipyard Properties, Inc. ina deed dated March 23, 1990 and recorded inthe Essex County Clerk's Office on March 26, 1990 at Book 964 of Deeds at Page 345. 2. An easement to maintain a placard sign for the Boathouse on the sign that identifiesthe Essex Shipyard operation located in ornear itspresent location on the Shipyard Property. 2 AURou0907Essement Agreantza 90-00M5.wpe.Novemhcr I1,2005. Final FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 b BOOK 1606 PAGE 313 3. That theparty ofthe second part has given and by these presents does give and grant unto Robert Burley, Patricia Burley, Todd Burley and JillBurley, so long as any ofthern are alive,to use without charge Slip #7 on the current dock plan, and further the party ofthe second part,on behalf of itssuccessors and assigns agrees that solong as eitherRobert Burley or Patricia Burley are alive Slip#6 will not be leased to any boat with a length greater than 20 feet. TO HAVE AND TO HOLD the premises herein granted unto the parties of the first part, theirheirs, successors and assigns forever, AND THE SAID PARTIES OF THE FIRST PART COVENANT AS FOLLOWS: That each easement granted above by the parties of thefirstpart isfor the benefit of and appurtenant to thatland or any portion thereof described he ein as the Shipyard Property- Each grant of easement shall run with the land and shallbe binding on and shallinute to the benefit of the partieshereto, their respective heirs, successors or assigns. AND THE SAID PARTY OF THE SECOND PART COVENANTS AS FOLLOWS: That cach casement granted above by the party at thesecond part isfor the benefit of and appurtenant to thatland or any portion thereof described herein as theBoathouse Property. Each grant of easement, except as atherwise specificallystated, shall run with the land and shall be binding on and shallinure tothe benefit of the partieshereto, their respective heirs, successors or assigns. IN WITNESS WHEREOF, the partieshave duly executed thisdeed the day and year firstwritten above. In presence of: R a6eRT A- b ve <--fy Ro ertA. Burley, as Trustee of The Robert A. Burley Revocable Tmst and The Patricia A. Burley Revocable O Trust n-rthe I vt e- Ey , \ f..q A 87 m A c1 Patri is A. Burley as Trustee of The Robert A. Burley Revocable Trust and The PatriciaA. Burley Revocable Trust Shipyard P operties, Inc. By: Robert A. Burley, President [Tax Map Nos. 40.73-6-A1, 40-73-7-L1. 40.73-6-.8] -3- 07Ememan AORO600 Agreernew 90-003.4 6mpd.November U.2008. Fmal FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 BOOK 16{ 6 PME 31 State of New York ss.: County of Esse3 On the. 21st day of April in the year 2009 before me, the undersigned, a Notary Public in and for said State, personally appeared Robert A. Burley , known to me or proved tome on the basis of satisfactoryevidence to be the individual personally whose name is subscribed to the within instnament and acknowledged to me thathe executed the sarne in his capacity,and that by his signature on the instnanent, the individual, or the person upon behalf of which the individual acted, executed the instmmenI. Notary Public State of New York KALDRALRNUCANE ss.: NotagM of Fasex s88508 County _of On the 2 Ist day of April in theyear 2009 before me, the undersigned, a Notary Public in and for saidState, personally appeared PatriciaA. Burley .personally known to me or pmved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instmment and acknowledged to me that she executed the same inher capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. dh - 4,ann1 Notary Public State of New York KAtcRAK RNUCANE SS-- M Notaq PuMic.Etateof New #4685513 County of Essex Resimg In EssexOpumly 9Æ-07 My commissionEntres On the 21st day of April in the year 2009 before me, the undersigned, a Notary Public in and for said State, personally appeared Robert A. Burley . personally known to me or pmved to me on the basis of satisfactory evidence tobe the individual whose name issubscribed tothe within instrument and acknowledged to me that he executed the same in hiscapacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Notary Public KALORAK.FINUCANE M Nolan Pubile,StateofNew #4685513 missionEntes@- AOROBOfloHasemem November Agreemere90-co3.10Apd. Final I 1,2008. FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 500t. 1606 PAGE 315 Math . ST. "A" Exhibit FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 sees964 not 345 maurrr-ans a " Reds sks 2,3, day st M A4CH mneman annmed sad Ninety P.erseen nm e at Walttfield,ye a he acre ,"rties of neths:pae4 and SilMARD PROMMTIES INC., a NewYork business ton havingIts principerofficelec4 to Essex County. NewYork an fig a . st addmss at P.0.Box 150, Nattsfieht, Vanent 05673, herwinsfte " NE------pogra, t.00 and othergood·aulvaluable tton as pus. easte e"as "u"e"an I the son a se . ..m e -x=anr0.s-...e.... o.rn... . - EsrATE - - anag e son set TAX 25mt ER . · - FILED: ESSEX COUNTY CLERK 08/05/2022 12:08 PM INDEX NO. CV17-0101 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 08/05/2022 amS64 PE 3d$ scumotma A . I . All that serta&B parpal of lea6 10satti in the Town and sesem and as New "FancB&. tra as comaty of state T"rk, betay * .descrihad in m dee4 to the partina of the first part hereto dated May 31, 1989 and recorded 18 deed book 915 at page 193 ame betag . bounded and described as folloung at a 1.7 foot long 1/28 ires pipe set to.grade la beginning equerate end stoman in the sesumed easterly bounds of. Main Street, 'also knona as Resent County Route 1sm. 224, mate ite pipe being locatea st the morthwest corner of party of Richard mat thirter Barmahy ne damaribed in dead bee 491 at page 224 and running; 1. W 4h23' E as referenced to magnetic north 1k 3945 a distance of 68.11 fami.along mai4 road bounds to a point, and . running the following four .coutess along property of sack and Joanne Halpin as described in deed hook 915 at paga 1843 2, a ashe3' 3 56,43 feet to ea. angle point; 3, 3 79656'-45," E 144.62 feet to the northeast corner of a .one atory frame beat houses 9"-4S' W 16.50 feet alqas the east 54on. of maid hoat " 4. 8 Noese to ma angle potaty 5. s 1s"’e' E 439.71 feet to an angLe points s. 4 7"-o5" u 391.24 feet alone the easterly heende et an . sederwater grant to smary N. Ross date4 45me 13, 1833 and recorded to sock 31 of