Preview
FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF WARREN
SUSAN A. and ROBERT W. MANDELL,
92 Bob Kat Lane
Hague, New York 12836 VERIFIED ANSWER
Plaintiffs, WITH COUNTERCLAIMS
-against-
Index No. EF2021-69069
TOWN OF HAGUE,
9793 Graphite Mountain Road
Hague, New York 12836
Defendant.
Defendant, TOWN OF HAGUE, by and through its attorney, John M. Silvestri,
Plaintiffs'
Esq., as and for a Verified Answer with Counterclaims to Complaint,
respectfully shows and alleges to this Court as follows:
1. Defendant, TOWN OF HAGUE, denies knowledge or information sufficient to
Plaintiffs'
form a belief as to the truth of the allegations set forth in ¶¶ 1, 3, and 4 of
Complaint, and therefore denies same.
2. As and for a response to ¶ 2 of the Complaint, Defendant admits that portion of ¶
2 which alleges that Defendant, TOWN OF HAGUE, "is a municipal corporation
York."
organized and existing under the laws of the State of New (Compl. 1 2.)
Plaintiffs'
Defendant also admits allegation that Pine Cove Road is a Town Road,
and that Defendant is therefore responsible for its maintenance and repair.
Plaintiffs'
Defendant denies each and every other allegation set forth in ¶ 2 of
Complaint, and in particular denies the allegation that Defendant is responsible
"layout"
for the of Pine Cove Road.
3. As and for a response to ¶ 5 of the Complaint, Defendant admits to so much of that
paragraph which alleges that Plaintiffs, through their attorneys, sent a letter
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addressed to Defendant dated September 15, 2020. Defendant denies knowledge
or information sufficient to form a belief as to the truth of each and every other
Plaintiffs'
remaining allegation set forth in ¶ 5 of Complaint, and therefore denies
same.
4. As and for a response to ¶ 6 of the Complaint, Defendant admits to so much of that
paragraph which alleges that Plaintiffs, through their attorneys, sent a letter
addressed to Defendant dated November 24, 2020. Defendant denies knowledge
or information sufficient to form a belief as to the truth of each and every other
Plaintiffs'
remaining allegation set forth in ¶ 6 of Complaint, and therefore denies
same.
Plaintiffs'
5. Defendant denies each and every allegation set forth in ¶¶ 7 and 8 of
Complaint.
AS AND FOR A FIRST
AFFIRMATIVE DEFENSE
6. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 5 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
Plaintiffs'
7. Complaint fails to state a cause of action upon which relief may be
granted.
AS AND FOR A SECOND
AFFIRMATIVE DEFENSE
8. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 7 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
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Plaintiffs'
9. claim is barred by the doctrine of laches.
AS AND FOR A THIRD
AFFIRMATIVE DEFENSE
10. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 9 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
11. Plaintiffs have failed to include all necessary parties to this action.
AS AND FOR A FOURTH
AFFIRMATIVE DEFENSE
12. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 11 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
Plaintiffs'
13. cause of action is barred by the doctrine of unclean hands.
AS AND FOR A FIFTH
AFFIRMATIVE DEFENSE
14. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 13 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
Plaintiffs'
15. cause of action is barred by the doctrine of equitable estoppel.
AS AND FOR A SIXTH
AFFIRMATIVE DEFENSE
16. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 15ofthis responsive pleading with the same
force and effect as if set forth verbatim herein.
Plaintiffs'
17. claim is barred by the applicable statute of limitations.
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AS AND FOR A SEVENTH
AFFIRMATIVE DEFENSE
18. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 17 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
19. If Plaintiffs have suffered any damages as alleged in their Complaint, the damages
they suffered were solely the result of their own culpable conduct, negligence,
and/or lack of due diligence, without any fault or liability on the part of Defendant.
AS AND FOR AN EIGHTH
AFFIRMATIVE DEFENSE
20.Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 19 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
21. Plaintiffs as purchasers had actual and/or constructive knowledge of the location
of Pine Cove Road in relation to their property, as well as knowledge of the status
of Pine Cove Road as a public highway that was both open to use by the general
public, and continuously maintained by public authorities.
22. Defendant is advised by its attorney and verily believes that such open and obvious
use of Pine Cove Road by the general public as a public highway, as well as evidence
of its continuous maintenance by the public authorities, gave rise to a duty on the
part of Plaintiffs to investigate and inquire with regard to Pine Cove Road's
location, public use, and maintenance.
23. Defendant is also advised by its attorney and verily believes that Plaintiffs took
ownership of their property with actual and/or constructive knowledge of the
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location, use, and maintenance of Pine Cove Road as a public highway bordering
Plaintiffs'
their property, and that it was therefore own responsibility to obtain a
survey of said property and its boundaries prior to purchasing it ifthey had any
reservations concerning the location, bounds, usage, and maintenance of Pine
Cove Road as a public highway bordering said property.
24. Due to the foregoing, Defendant avers that if Plaintiffs did indeed suffer any
Plaintiffs'
damages as a result of the allegations made in Complaint, said damages
Plaintiffs'
were solely a result of own failure to undertake such investigation and
Plaintiffs'
inquiry, which was responsibility.
AS AND FOR A
FIRST COUNTERCLAIM
25. Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 24 of this responsive pleafing with the same
force and effect as if set forth verbatim herein.
26. This Counterclaim is brought pursuant to Article 15 of the Real Property Actions
and Proceedings Law to compel the determination of claims to real property.
27. Upon information and belief, and at all times hereinafter mentioned, Plaintiffs
SUSAN A. MANDELL and ROBERT W. MANDELL were and are residents
of Warren County, State of New York, residing at 92 Bob Kat Lane in the Town of
Hague.
28.At all times hereinafter mentioned, Defendant TOWN OF HAGUE was and is a
municipal corporation organized and existing under the laws of the State of New
York, with its principal offices located at 9793 Graphite Mountain Road, in the
Town of Hague, County of Warren, State of New York.
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29.Upon information and belief, approximately forty-five (45) years ago, Defendant
TOWN OF HAGUE accepted the dedication of a subdivision road - the roadway
known as Pine Cove Road which is the subject of the instant action - to
currently
be used as a public highway in the Town.
30.The aforementioned public highway, currently known as Pine Cove Road, was
offered in dedication to the Town by the developer of the subdivision lots through
which said highway runs. The public highway borders certain lots within said
development, including the lot which is owned by Plaintiffs in this action.
31. Defendant did not design, layout, excavate, build, develop, or otherwise create said
roadway. The roadway was, upon information and belief, designed and built by
Plaintiffs'
the developer of the subdivision within which lot is located.
32.Said public highway known as Pine Cove Road has, upon information and belief,
been used openly and continuously by the general public, and has been
continuously maintained by public authorities, since the aforementioned
dedication approximately forty-five (45) years ago.
33. Said public highway's use, upon information and belief, has never been limited to
that of residents owning property bounded by it, and has instead been open to the
general public for the entirety of its existence, like any other public highway.
34.Said public highway has, upon information and belief, been continuously
maintained by public authorities since its dedication to the Town by, inter alia,
being kept in good repair, being plowed of snow and ice, and being continuously
policed by local authorities.
35. As such, should any part or portion of said public highway encroach, traverse,
Plaintiffs'
enter, or run across private property, pursuant to N.Y. Highway Law §
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189, Defendant has, by the aforementioned open and continuous use by the public
and maintenance by the public authorities, gained prescriptive rights to all such
Plaintiffs'
parts or portions of property, and as such, they "shall be a highway, with
the same force and effect as if [they] had been duly laid out and recorded as a
highway."
Highway Law § 189.
36.By reason of the aforesaid, should any part or portion of the public highway known
as Pine Cove Road traverse or encroach upon the private property owned by
Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant is entitled
to a declaratory judgment of this Court declaring that Defendant has an easement
Plaintiffs'
by prescription over all such portions of lot, that Plaintiffs are thereby
estopped from denying the existence of such easement by prescription over their
land, and that Plaintiffs are enjoined from interfering in any way with Defendant's
rights to use and maintain said easement as it exists in its current form, which is
defined by its current usage by the general public.
37. There are no unknown defendants, and, upon information and belief, the parties
named herein are not infants and are not incompetent to manage themselves or
their affairs.
38.Any judgment granted herein will not affect any person or persons not in being or
ascertained at the commencement of this action, who by any contingency
contained in a devise or grant or otherwise could hereafter become entitled to a
beneficial estate or interest in the aforesaid premises, and every person in being
who would have been entitled to such estate or interest, if such event happened
immediately before the commencement of this action, is named as a party hereto.
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39. No personal claim is made against Plaintiffs for this cause of action, unless
Plaintiffs assert a claim adverse to the claims of Defendant as set forth in this
counterclaim.
AS AND FORA
SECOND COUNTERCLAIM
40.Defendant repeats and realleges each and every response and allegation set forth
in Paragraphs numbered 1 through 39 of this responsive pleading with the same
force and effect as if set forth verbatim herein.
41. Plaintiffs herein took title to the property now known as 92 Bob Kat Lane, Town of
Hague, with actual and/or constructive knowledge of the location of the public
highway known as Pine Cove Road in relation to said property, regardless of
whether any part or portion of said highway traverses or encroaches upon
Plaintiffs'
private property.
42.Plaintiffs herein took title to the property now known as 92 Bob Kat Lane with
actual and/or constructive knowledge that the highway known as Pine Cove Road
has been openly and continuously used as a public highway by the general public,
in its approximate current form, location, and layout, since its development about
forty-five (45) years prior, regardless of whether any part or portion of said
Plaintiffs'
highway traverses or encroaches upon private property.
43.Plaintiffs herein took title to the property now known as 92 Bob Kat Lane with
actual and/or constructive knowledge that public authorities have maintained the
highway known as Pine Cove Road, in its approximate current form, location, and
layout, in the manner of a public highway, regardless of whether any part or
Plaintiffs'
portion of said highway traverses or encroaches upon private property.
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44.Plaintiffs have, upon information and belief, owned the property now known as 92
Bob Kat Lane since obtaining title thereto on or about September 27, 1997, without
objecting to the location, use, and/or maintenance of Pine Cove Road, and without
asserting rights contrary to Defendant's in relation to said public highway, until
Plaintiffs'
the time of the events alleged in Complaint herein. As such, Plaintiffs
have owned said property for approximately twenty-three (23) years, during which
time Pine Cove Road has been continuously used as a public highway and
maintained by public authorities in the same manner as it is today, regardless of
whether any part or portion of said highway traverses or encroaches upon
Plaintiffs'
private property.
45. Due to the foregoing, a dedication was made by implication of any and all portions
Plaintiffs'
of property which are currently being traversed or encroached upon by
the public highway known as Pine Cove Road. Said dedication by implication was
effected without the need for a deed or formal writing, and said dedication was
accepted by implication by Defendant TOWN OF HAGUE, as can be properly
inferred by the Town's continuous maintenance of Pine Cove Road as a public
Plaintiffs'
highway, including any parts or portions thereof which may run across
lot.
46.Because Plaintiffs had actual and/or constructive knowledge of any and all
portions of their property which were traversed or encroached upon by the public
highway known as Pine Cove Road at the time of purchase, Plaintiffs were placed
on notice of same when they took ownership thereof.
47. By reason of the aforesaid, should any part or portion of the public highway known
as Pine Cove Road traverse or encroach upon the private property owned by
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Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant is entitled
to a declaratory judgment of this Court declaring that Defendant has an easement
Plaintiffs'
by dedication over all such portions of lot, that Plaintiffs are thereby
estopped from denying the existence of said easement by dedication over their
land, and that Plaintiffs are enjoined from interfering in any way with Defendant's
rights to use and maintain said easement as it exists in its current form, which is
defined by its current usage by the general public.
WHEREFORE, Defendant, TOWN OF HAGUE, respectfully requests that the
Court dismiss the Complaint of PIaintiffs, SUSAN A. MANDELL and ROBERT W.
MANDELL, in its entirety, and grant judgment in favor of Defendant for the following
relief:
(a) On the First Counterclaim, a declaratory judgment that should any part or
portion of the public highway known as Pine Cove Road traverse or encroach
upon the private property owned by Plaintiffs known as 92 Bob Kat Lane in the
Town of Hague, Defendant has an easement by prescription over all such
Plaintiffs'
portions of lot, that Plaintiffs are thereby estopped from denying the
existence of said easement by prescription over their land, and that Plaintiffs
are hereinafter enjoined from interfering in any way with Defendant's rights to
use and maintain said easement as it exists in its current form, which is defined
by its current usage by the general public; and/or pursuant to Town Highway
Law Section 189 said portion of the roadway is a Highway By Use.
(b) On the Second Counterclaim, a declaratory judgment that should any part or
portion of the public highway known as Pine Cove Road traverse or encroach
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upon the private property owned by Plaintiffs known as 92 Bob Kat Lane in the
Town of Hague, Defendant has an easement by dedication over all such
Plaintiffs'
portions of lot, that Plaintiffs are thereby estopped from denying the
existence of said easement by dedication over their land, and that Plaintiffs are
hereinafter enjoined from interfering in any way with Defendant's rights to use
and maintain said easement as it exists in its current form, which is defined by
its current usage by the general public; and/or pursuant to Town Highway Law
Section 189 said portion of the roadway is a Highway By Use.
(c) Together with such other further and different relief which to the Court seems
proper and just.
Dated: July 2021
Glens Falls, New York HN M. SILVESTRI, Esq.
Signed pursuant to Rule 130.o-1(a)
Attorney for Defendant, Town of Hague
9 Broad Street, P.O. Box 2146
Glens Falls, New York 12801
(518) 832-4966 Phone
jms@silvestrilaw.com
To: Dennis J. Phillips, Esq.
McPHILLIPS, FITZGERAND & CULLUM LLP
Attorneys for Plaintiffs, Susan A. Mandell and Robert W. Mandell
288 Glen Street, P.O. Box 299
Glens Falls, New York 12801
(518) 792-1174 Phone
dphillips@mfellp.com
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VERIFICATION
STATE OF NEW YORK )
)ss.:
COUNTY OF WARREN )
EDNAA. FRASIER, being duly sworn, deposes and says that she is the Town
Supervisor for the Town of Hague, the defendant in the within action, and that as the
authorized agent and representative of said defendant, she has read the foregoing
Answer with Counterclaims and knows the contents thereof, that the same is true to her
knowledge, except as to those matters stated therein to be alleged upon information and
belief, and as to those matters she believes it to be true.
Hon. EDNA FRASIER
Town Supervisor, Town of Hague
As Authorized Agent and Representative
of Defendant, TOWN OF HAGUE
Sw. orn to before me this
de"day of iTO L '/ , 2021.
is -n
otary ic 24 F X'P 6 t /Á /
/ fb/
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Preview
FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF WARREN SUSAN A. and ROBERT W. MANDELL, 92 Bob Kat Lane Hague, New York 12836 VERIFIED ANSWER Plaintiffs, WITH COUNTERCLAIMS -against- Index No. EF2021-69069 TOWN OF HAGUE, 9793 Graphite Mountain Road Hague, New York 12836 Defendant. Defendant, TOWN OF HAGUE, by and through its attorney, John M. Silvestri, Plaintiffs' Esq., as and for a Verified Answer with Counterclaims to Complaint, respectfully shows and alleges to this Court as follows: 1. Defendant, TOWN OF HAGUE, denies knowledge or information sufficient to Plaintiffs' form a belief as to the truth of the allegations set forth in ¶¶ 1, 3, and 4 of Complaint, and therefore denies same. 2. As and for a response to ¶ 2 of the Complaint, Defendant admits that portion of ¶ 2 which alleges that Defendant, TOWN OF HAGUE, "is a municipal corporation York." organized and existing under the laws of the State of New (Compl. 1 2.) Plaintiffs' Defendant also admits allegation that Pine Cove Road is a Town Road, and that Defendant is therefore responsible for its maintenance and repair. Plaintiffs' Defendant denies each and every other allegation set forth in ¶ 2 of Complaint, and in particular denies the allegation that Defendant is responsible "layout" for the of Pine Cove Road. 3. As and for a response to ¶ 5 of the Complaint, Defendant admits to so much of that paragraph which alleges that Plaintiffs, through their attorneys, sent a letter 1 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 addressed to Defendant dated September 15, 2020. Defendant denies knowledge or information sufficient to form a belief as to the truth of each and every other Plaintiffs' remaining allegation set forth in ¶ 5 of Complaint, and therefore denies same. 4. As and for a response to ¶ 6 of the Complaint, Defendant admits to so much of that paragraph which alleges that Plaintiffs, through their attorneys, sent a letter addressed to Defendant dated November 24, 2020. Defendant denies knowledge or information sufficient to form a belief as to the truth of each and every other Plaintiffs' remaining allegation set forth in ¶ 6 of Complaint, and therefore denies same. Plaintiffs' 5. Defendant denies each and every allegation set forth in ¶¶ 7 and 8 of Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 6. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 5 of this responsive pleading with the same force and effect as if set forth verbatim herein. Plaintiffs' 7. Complaint fails to state a cause of action upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 8. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 7 of this responsive pleading with the same force and effect as if set forth verbatim herein. 2 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 Plaintiffs' 9. claim is barred by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 9 of this responsive pleading with the same force and effect as if set forth verbatim herein. 11. Plaintiffs have failed to include all necessary parties to this action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 12. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 11 of this responsive pleading with the same force and effect as if set forth verbatim herein. Plaintiffs' 13. cause of action is barred by the doctrine of unclean hands. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 14. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 13 of this responsive pleading with the same force and effect as if set forth verbatim herein. Plaintiffs' 15. cause of action is barred by the doctrine of equitable estoppel. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 16. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 15ofthis responsive pleading with the same force and effect as if set forth verbatim herein. Plaintiffs' 17. claim is barred by the applicable statute of limitations. 3 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 18. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 17 of this responsive pleading with the same force and effect as if set forth verbatim herein. 19. If Plaintiffs have suffered any damages as alleged in their Complaint, the damages they suffered were solely the result of their own culpable conduct, negligence, and/or lack of due diligence, without any fault or liability on the part of Defendant. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 20.Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 19 of this responsive pleading with the same force and effect as if set forth verbatim herein. 21. Plaintiffs as purchasers had actual and/or constructive knowledge of the location of Pine Cove Road in relation to their property, as well as knowledge of the status of Pine Cove Road as a public highway that was both open to use by the general public, and continuously maintained by public authorities. 22. Defendant is advised by its attorney and verily believes that such open and obvious use of Pine Cove Road by the general public as a public highway, as well as evidence of its continuous maintenance by the public authorities, gave rise to a duty on the part of Plaintiffs to investigate and inquire with regard to Pine Cove Road's location, public use, and maintenance. 23. Defendant is also advised by its attorney and verily believes that Plaintiffs took ownership of their property with actual and/or constructive knowledge of the 4 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 location, use, and maintenance of Pine Cove Road as a public highway bordering Plaintiffs' their property, and that it was therefore own responsibility to obtain a survey of said property and its boundaries prior to purchasing it ifthey had any reservations concerning the location, bounds, usage, and maintenance of Pine Cove Road as a public highway bordering said property. 24. Due to the foregoing, Defendant avers that if Plaintiffs did indeed suffer any Plaintiffs' damages as a result of the allegations made in Complaint, said damages Plaintiffs' were solely a result of own failure to undertake such investigation and Plaintiffs' inquiry, which was responsibility. AS AND FOR A FIRST COUNTERCLAIM 25. Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 24 of this responsive pleafing with the same force and effect as if set forth verbatim herein. 26. This Counterclaim is brought pursuant to Article 15 of the Real Property Actions and Proceedings Law to compel the determination of claims to real property. 27. Upon information and belief, and at all times hereinafter mentioned, Plaintiffs SUSAN A. MANDELL and ROBERT W. MANDELL were and are residents of Warren County, State of New York, residing at 92 Bob Kat Lane in the Town of Hague. 28.At all times hereinafter mentioned, Defendant TOWN OF HAGUE was and is a municipal corporation organized and existing under the laws of the State of New York, with its principal offices located at 9793 Graphite Mountain Road, in the Town of Hague, County of Warren, State of New York. 5 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 29.Upon information and belief, approximately forty-five (45) years ago, Defendant TOWN OF HAGUE accepted the dedication of a subdivision road - the roadway known as Pine Cove Road which is the subject of the instant action - to currently be used as a public highway in the Town. 30.The aforementioned public highway, currently known as Pine Cove Road, was offered in dedication to the Town by the developer of the subdivision lots through which said highway runs. The public highway borders certain lots within said development, including the lot which is owned by Plaintiffs in this action. 31. Defendant did not design, layout, excavate, build, develop, or otherwise create said roadway. The roadway was, upon information and belief, designed and built by Plaintiffs' the developer of the subdivision within which lot is located. 32.Said public highway known as Pine Cove Road has, upon information and belief, been used openly and continuously by the general public, and has been continuously maintained by public authorities, since the aforementioned dedication approximately forty-five (45) years ago. 33. Said public highway's use, upon information and belief, has never been limited to that of residents owning property bounded by it, and has instead been open to the general public for the entirety of its existence, like any other public highway. 34.Said public highway has, upon information and belief, been continuously maintained by public authorities since its dedication to the Town by, inter alia, being kept in good repair, being plowed of snow and ice, and being continuously policed by local authorities. 35. As such, should any part or portion of said public highway encroach, traverse, Plaintiffs' enter, or run across private property, pursuant to N.Y. Highway Law § 6 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 189, Defendant has, by the aforementioned open and continuous use by the public and maintenance by the public authorities, gained prescriptive rights to all such Plaintiffs' parts or portions of property, and as such, they "shall be a highway, with the same force and effect as if [they] had been duly laid out and recorded as a highway." Highway Law § 189. 36.By reason of the aforesaid, should any part or portion of the public highway known as Pine Cove Road traverse or encroach upon the private property owned by Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant is entitled to a declaratory judgment of this Court declaring that Defendant has an easement Plaintiffs' by prescription over all such portions of lot, that Plaintiffs are thereby estopped from denying the existence of such easement by prescription over their land, and that Plaintiffs are enjoined from interfering in any way with Defendant's rights to use and maintain said easement as it exists in its current form, which is defined by its current usage by the general public. 37. There are no unknown defendants, and, upon information and belief, the parties named herein are not infants and are not incompetent to manage themselves or their affairs. 38.Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise could hereafter become entitled to a beneficial estate or interest in the aforesaid premises, and every person in being who would have been entitled to such estate or interest, if such event happened immediately before the commencement of this action, is named as a party hereto. 7 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 39. No personal claim is made against Plaintiffs for this cause of action, unless Plaintiffs assert a claim adverse to the claims of Defendant as set forth in this counterclaim. AS AND FORA SECOND COUNTERCLAIM 40.Defendant repeats and realleges each and every response and allegation set forth in Paragraphs numbered 1 through 39 of this responsive pleading with the same force and effect as if set forth verbatim herein. 41. Plaintiffs herein took title to the property now known as 92 Bob Kat Lane, Town of Hague, with actual and/or constructive knowledge of the location of the public highway known as Pine Cove Road in relation to said property, regardless of whether any part or portion of said highway traverses or encroaches upon Plaintiffs' private property. 42.Plaintiffs herein took title to the property now known as 92 Bob Kat Lane with actual and/or constructive knowledge that the highway known as Pine Cove Road has been openly and continuously used as a public highway by the general public, in its approximate current form, location, and layout, since its development about forty-five (45) years prior, regardless of whether any part or portion of said Plaintiffs' highway traverses or encroaches upon private property. 43.Plaintiffs herein took title to the property now known as 92 Bob Kat Lane with actual and/or constructive knowledge that public authorities have maintained the highway known as Pine Cove Road, in its approximate current form, location, and layout, in the manner of a public highway, regardless of whether any part or Plaintiffs' portion of said highway traverses or encroaches upon private property. 8 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 44.Plaintiffs have, upon information and belief, owned the property now known as 92 Bob Kat Lane since obtaining title thereto on or about September 27, 1997, without objecting to the location, use, and/or maintenance of Pine Cove Road, and without asserting rights contrary to Defendant's in relation to said public highway, until Plaintiffs' the time of the events alleged in Complaint herein. As such, Plaintiffs have owned said property for approximately twenty-three (23) years, during which time Pine Cove Road has been continuously used as a public highway and maintained by public authorities in the same manner as it is today, regardless of whether any part or portion of said highway traverses or encroaches upon Plaintiffs' private property. 45. Due to the foregoing, a dedication was made by implication of any and all portions Plaintiffs' of property which are currently being traversed or encroached upon by the public highway known as Pine Cove Road. Said dedication by implication was effected without the need for a deed or formal writing, and said dedication was accepted by implication by Defendant TOWN OF HAGUE, as can be properly inferred by the Town's continuous maintenance of Pine Cove Road as a public Plaintiffs' highway, including any parts or portions thereof which may run across lot. 46.Because Plaintiffs had actual and/or constructive knowledge of any and all portions of their property which were traversed or encroached upon by the public highway known as Pine Cove Road at the time of purchase, Plaintiffs were placed on notice of same when they took ownership thereof. 47. By reason of the aforesaid, should any part or portion of the public highway known as Pine Cove Road traverse or encroach upon the private property owned by 9 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant is entitled to a declaratory judgment of this Court declaring that Defendant has an easement Plaintiffs' by dedication over all such portions of lot, that Plaintiffs are thereby estopped from denying the existence of said easement by dedication over their land, and that Plaintiffs are enjoined from interfering in any way with Defendant's rights to use and maintain said easement as it exists in its current form, which is defined by its current usage by the general public. WHEREFORE, Defendant, TOWN OF HAGUE, respectfully requests that the Court dismiss the Complaint of PIaintiffs, SUSAN A. MANDELL and ROBERT W. MANDELL, in its entirety, and grant judgment in favor of Defendant for the following relief: (a) On the First Counterclaim, a declaratory judgment that should any part or portion of the public highway known as Pine Cove Road traverse or encroach upon the private property owned by Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant has an easement by prescription over all such Plaintiffs' portions of lot, that Plaintiffs are thereby estopped from denying the existence of said easement by prescription over their land, and that Plaintiffs are hereinafter enjoined from interfering in any way with Defendant's rights to use and maintain said easement as it exists in its current form, which is defined by its current usage by the general public; and/or pursuant to Town Highway Law Section 189 said portion of the roadway is a Highway By Use. (b) On the Second Counterclaim, a declaratory judgment that should any part or portion of the public highway known as Pine Cove Road traverse or encroach 10 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 upon the private property owned by Plaintiffs known as 92 Bob Kat Lane in the Town of Hague, Defendant has an easement by dedication over all such Plaintiffs' portions of lot, that Plaintiffs are thereby estopped from denying the existence of said easement by dedication over their land, and that Plaintiffs are hereinafter enjoined from interfering in any way with Defendant's rights to use and maintain said easement as it exists in its current form, which is defined by its current usage by the general public; and/or pursuant to Town Highway Law Section 189 said portion of the roadway is a Highway By Use. (c) Together with such other further and different relief which to the Court seems proper and just. Dated: July 2021 Glens Falls, New York HN M. SILVESTRI, Esq. Signed pursuant to Rule 130.o-1(a) Attorney for Defendant, Town of Hague 9 Broad Street, P.O. Box 2146 Glens Falls, New York 12801 (518) 832-4966 Phone jms@silvestrilaw.com To: Dennis J. Phillips, Esq. McPHILLIPS, FITZGERAND & CULLUM LLP Attorneys for Plaintiffs, Susan A. Mandell and Robert W. Mandell 288 Glen Street, P.O. Box 299 Glens Falls, New York 12801 (518) 792-1174 Phone dphillips@mfellp.com 11 of 12 FILED: WARREN COUNTY CLERK 08/05/2021 07:46 PM INDEX NO. EF2021-69069 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/05/2021 VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF WARREN ) EDNAA. FRASIER, being duly sworn, deposes and says that she is the Town Supervisor for the Town of Hague, the defendant in the within action, and that as the authorized agent and representative of said defendant, she has read the foregoing Answer with Counterclaims and knows the contents thereof, that the same is true to her knowledge, except as to those matters stated therein to be alleged upon information and belief, and as to those matters she believes it to be true. Hon. EDNA FRASIER Town Supervisor, Town of Hague As Authorized Agent and Representative of Defendant, TOWN OF HAGUE Sw. orn to before me this de"day of iTO L '/ , 2021. is -n otary ic 24 F X'P 6 t /Á / / fb/ 12 of 12