Preview
FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021
True, Walsh & Miller
CI2021-16671 Pleading Letterhead Index # : EF2021-0164
STATE OF NEW YORK
SUPREME COURT: COUNTY OF TOMPKINS
TERRY COLE,
Plaintiff,
ATTORNEY AFFIRMATION
v.
Index No: EF2021-0164
BEVERLY STEVENSON and RJI No.: 2021-0098-M
SHAWN ROWSER,
Defendants.
Jessica J. Rapp, Esq., an attorney duly admitted to practice law in the courts of the State of
New York, hereby affirms as follows under penalty of perjury:
1. I am a member of the law firm Miller Mayer, LLP, attorneys for Plaintiff Terry Cole,
and as such, I am fully aware of the underlying action as well as the proceedings had herein.
2. I submit this Affirmation in support of Plaintiff's application for contempt and arrest
against Defendants for Defendants' willful failure to abide by Order of this Court dated August 5,
2021. Attached hereto as Exhibit "A" is a copy of the Order.
DEFENDANTS HAVE FAILED TO REMOVE THE OBSTRUCTIONS AS REQUIRED
3. By way of background, Plaintiff commenced a nuisance action against Defendants due
to several obstructions placed by Defendants upon a .0389-acre strip of land, Tax Parcel 14.-1-1.34,
part of Military Lot 68 in the town of Enfield, New York (the “Driveway Parcel”), which prevent
Plaintiff and those authorized by him from accessing land owned by Plaintiff.
4. Simultaneously therewith, Plaintiff moved the Court by Order to Show Cause seeking
an order directing Defendants to remove said obstructions and enjoining and restraining Defendants
and those in concert with Defendants from directly or indirectly:
a. Engaging in any conduct that interferes with the property rights of Plaintiff and
those permitted by Plaintiff to use and enjoy Plaintiff's land
MILLER MAYER, LLP 1
215 East State Street
Ithaca, New York 14850
(607) 273-4200
1 of 3
FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021
True, Walsh & Miller
CI2021-16671 Pleading Letterhead Index #: EF2021-0164
b. Engaging in any conduct that interferes with the property rights of Plaintiff and
those permitted by Plaintiff to use the Driveway Parcel for ingress and egress to
access Plaintiff’s land;
c. Engaging in any conduct that harasses Plaintiff or those permitted by Plaintiff to
use the Driveway Parcel for ingress and egress to access Plaintiff’s land;
d. Obstructing the Driveway Parcel; and
e. Causing intentional damage to the Driveway Parcel.
5. The motion came before the Court for oral argument on August 4, 2021. Both
Defendants were present in Court.
6. The Court granted Plaintiff's motion for a permanent injunction and ordered
Defendants to remove the obstructions from the Driveway Parcel, including the camper located on the
Driveway Parcel, the wooden bench located on the Driveway Parcel, the fencing located on the
easterly side of the Driveway Parcel, and the fencing running east and west across the Driveway Parcel
within 30 days from the date of entry of the Order. The Order was entered on August 5, 2021.
7. The Defendants were each served with a Notice of Entry and a copy of the Order.
Attached hereto as Exhibit "B" are the Affidavits of Service for each Defendant. Indeed, I received a
voicemail from Defendant Shawn Rowser on August 13, 2021, in which he asked why I was "still
sending papers" and requested that I do not send Defendant Stevenson or him anything else.
Accordingly, I submit that the Defendants received the Notices of Entry and Order.
8. September 4, 2021, marked the thirty-day deadline.
9. Plaintiff informed me that Defendants took down one section of fencing and removed
some tires and boards. However, the camper on the Driveway Parcel, the wooden bench on the
Driveway Parcel, and the fencing running east and west across the Driveway Parcel remain. Attached
hereto as Exhibit "C" are photos taken by Plaintiff on September 11, 2021, demonstrating that the
obstructions remain.
10. Defendants are willfully refusing to comply with the Order of this Court. At oral
argument, the Court verbally directed the Defendants to remove the obstructions in thirty days. The
MILLER MAYER, LLP 2
215 East State Street
Ithaca, New York 14850
(607) 273-4200
2 of 3
FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021
True, Walsh & Miller
CI2021-16671 Pleading Letterhead Index #: EF2021-0164
Defendants subsequently received the written Court Order particularly describing the obstructions that
were to be removed.
11. However, Defendants have not fully complied despite knowledge of the Court's Order,
and thus are continuing to interfere with Plaintiff's property rights by impermissibly blocking access
to Plaintiff's farmland.
12. Upon information and belief, the Defendants do not have any significant assets or
money and requiring the Defendants to pay a fine would in ineffectual.
13. Accordingly, attached hereto as Exhibit "D" is a proposed Order of Contempt and
Arrest for the convenience of the Court.
WHEREFORE, it is respectfully requested that this Court issue an Order adjudging the
Defendants in Contempt of Court for their willful failure to comply with the August 5, 2021, Order of
this Court and directing that Defendants be imprisoned in the Tompkins County jail until Defendants
purge of said contempt by removing the obstructions.
Dated: September 24, 2021 ___________________________________
Jessica J. Rapp, Esq.
Miller Mayer, LLP
Attorneys for Plaintiff
215 East State Street, Suite 200
PO Box 6435
Ithaca, NY 14851-6435
MILLER MAYER, LLP 3
215 East State Street
Ithaca, New York 14850
(607) 273-4200
3 of 3
Preview
FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021 True, Walsh & Miller CI2021-16671 Pleading Letterhead Index # : EF2021-0164 STATE OF NEW YORK SUPREME COURT: COUNTY OF TOMPKINS TERRY COLE, Plaintiff, ATTORNEY AFFIRMATION v. Index No: EF2021-0164 BEVERLY STEVENSON and RJI No.: 2021-0098-M SHAWN ROWSER, Defendants. Jessica J. Rapp, Esq., an attorney duly admitted to practice law in the courts of the State of New York, hereby affirms as follows under penalty of perjury: 1. I am a member of the law firm Miller Mayer, LLP, attorneys for Plaintiff Terry Cole, and as such, I am fully aware of the underlying action as well as the proceedings had herein. 2. I submit this Affirmation in support of Plaintiff's application for contempt and arrest against Defendants for Defendants' willful failure to abide by Order of this Court dated August 5, 2021. Attached hereto as Exhibit "A" is a copy of the Order. DEFENDANTS HAVE FAILED TO REMOVE THE OBSTRUCTIONS AS REQUIRED 3. By way of background, Plaintiff commenced a nuisance action against Defendants due to several obstructions placed by Defendants upon a .0389-acre strip of land, Tax Parcel 14.-1-1.34, part of Military Lot 68 in the town of Enfield, New York (the “Driveway Parcel”), which prevent Plaintiff and those authorized by him from accessing land owned by Plaintiff. 4. Simultaneously therewith, Plaintiff moved the Court by Order to Show Cause seeking an order directing Defendants to remove said obstructions and enjoining and restraining Defendants and those in concert with Defendants from directly or indirectly: a. Engaging in any conduct that interferes with the property rights of Plaintiff and those permitted by Plaintiff to use and enjoy Plaintiff's land MILLER MAYER, LLP 1 215 East State Street Ithaca, New York 14850 (607) 273-4200 1 of 3 FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021 True, Walsh & Miller CI2021-16671 Pleading Letterhead Index #: EF2021-0164 b. Engaging in any conduct that interferes with the property rights of Plaintiff and those permitted by Plaintiff to use the Driveway Parcel for ingress and egress to access Plaintiff’s land; c. Engaging in any conduct that harasses Plaintiff or those permitted by Plaintiff to use the Driveway Parcel for ingress and egress to access Plaintiff’s land; d. Obstructing the Driveway Parcel; and e. Causing intentional damage to the Driveway Parcel. 5. The motion came before the Court for oral argument on August 4, 2021. Both Defendants were present in Court. 6. The Court granted Plaintiff's motion for a permanent injunction and ordered Defendants to remove the obstructions from the Driveway Parcel, including the camper located on the Driveway Parcel, the wooden bench located on the Driveway Parcel, the fencing located on the easterly side of the Driveway Parcel, and the fencing running east and west across the Driveway Parcel within 30 days from the date of entry of the Order. The Order was entered on August 5, 2021. 7. The Defendants were each served with a Notice of Entry and a copy of the Order. Attached hereto as Exhibit "B" are the Affidavits of Service for each Defendant. Indeed, I received a voicemail from Defendant Shawn Rowser on August 13, 2021, in which he asked why I was "still sending papers" and requested that I do not send Defendant Stevenson or him anything else. Accordingly, I submit that the Defendants received the Notices of Entry and Order. 8. September 4, 2021, marked the thirty-day deadline. 9. Plaintiff informed me that Defendants took down one section of fencing and removed some tires and boards. However, the camper on the Driveway Parcel, the wooden bench on the Driveway Parcel, and the fencing running east and west across the Driveway Parcel remain. Attached hereto as Exhibit "C" are photos taken by Plaintiff on September 11, 2021, demonstrating that the obstructions remain. 10. Defendants are willfully refusing to comply with the Order of this Court. At oral argument, the Court verbally directed the Defendants to remove the obstructions in thirty days. The MILLER MAYER, LLP 2 215 East State Street Ithaca, New York 14850 (607) 273-4200 2 of 3 FILED: TOMPKINS COUNTY CLERK 09/24/2021 04:34 PM INDEX NO. EF2021-0164 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 09/24/2021 True, Walsh & Miller CI2021-16671 Pleading Letterhead Index #: EF2021-0164 Defendants subsequently received the written Court Order particularly describing the obstructions that were to be removed. 11. However, Defendants have not fully complied despite knowledge of the Court's Order, and thus are continuing to interfere with Plaintiff's property rights by impermissibly blocking access to Plaintiff's farmland. 12. Upon information and belief, the Defendants do not have any significant assets or money and requiring the Defendants to pay a fine would in ineffectual. 13. Accordingly, attached hereto as Exhibit "D" is a proposed Order of Contempt and Arrest for the convenience of the Court. WHEREFORE, it is respectfully requested that this Court issue an Order adjudging the Defendants in Contempt of Court for their willful failure to comply with the August 5, 2021, Order of this Court and directing that Defendants be imprisoned in the Tompkins County jail until Defendants purge of said contempt by removing the obstructions. Dated: September 24, 2021 ___________________________________ Jessica J. Rapp, Esq. Miller Mayer, LLP Attorneys for Plaintiff 215 East State Street, Suite 200 PO Box 6435 Ithaca, NY 14851-6435 MILLER MAYER, LLP 3 215 East State Street Ithaca, New York 14850 (607) 273-4200 3 of 3