Preview
FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
VERIFIED ANSWER
Plaintiff,
Index No. EF2018-00001369
v.
CHARLES PETER HUNKELE, JR., and
DAVID STROTHERS
Defendants.
Defendant David Strothers, for a Verified Answer to the Verified Complaint of
the Plaintiff:
1. Admits the allegations contained at paragraphs 3, 4, 5, 25 and 26 of the
Verified Complaint.
2. Upon information and belief, admits the allegations contained at
paragraphs 1, 2, 7 and 8 of the Verified Complaint.
3. Admits so much of the allegations contained at paragraph 9 of the Verified
Complaint which allege that the deeds granted an easement for "the use of, along with others, of
a parcel land along Lake Ontario, said land to be used for docking boats, fishing, swimming and
area."
as a picnic The original deed from Edith R. Abbey Roeschlaub continued, however "the
grantor."
use of said premises are subject to the sale of the same by the
4. Deny knowledge and information sufficient to form a belief as to the truth
or falsity of the allegations contained at paragraphs 6, 13, 14, 15, 17, 18 and 27 of the Verified
Complaint, and therefore deny the same.
5. Deny each and every remaining allegation of the Verified Complaint.
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FOR A FIRST AFFIRMATIVE DEFENSE
6. The deed from Roeschlaub to Mervin and Barbara Miller which called for
Millers'
the "use of...a parcel of land along Lake Ontario, said land to be used for docking boats,
area"
fishing, swimming and as a picnic is separate from the grant "conveying the right to install
a water pump and line from the lake to the above described 0.155 acre parcel, said water
grantees."
facilities to be maintained by the
7. The use, of docking boats, etc.,was expressly made "subject to the sale of
grantor."
the same by the
8. That provision put Plaintiff and his predecessors in title on notice that any
sale by Edith J. Roeschlaub of the burdened property would serve to terminate the recreational
use.
9. On September 20, 1996, Edith J. Roeschlaub, as trustee of her trust,
conveyed the parcel now owned by this Defendant to Bernard L. Harvey and Michele A. Harvey.
A copy of that deed is attached as exhibit A.
10. The Roeschlaub to Harvey deed contained a provision excepting and
reserving to the Millers the right to "come upon the above described premises to maintain, repair
and/or replace the water pump and underground power and water lines running from said
pump..."
puIIlp...
11. Otherwise, the deed from Roeschlaub to Harvey, being a sale by the
easement."
grantor, extinguished, as of 1996, Plaintiff's complained-of "recreation
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FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369
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FOR A SECOND AFFIRMATIVE DEFENSE
12. This Defendant's land was so overgrown with underbrush and
undergrowth that Plaintiff could not possibly have utilized those lands for the claimed
area."
prescriptive use of "docking boats, fishing, swimming, or as a picnic
13. Subsequent to 1996, Plaintiff has not openly, notoriously, adversely, and
continuously utilized this Defendant's land in the manner described in the Roeschlaub deed to
Plaintiff in 1984.
14. Any period of use of the property by Plaintiff or his predecessors in title
between 1984 and 1996 was not adverse, but was pursuant to deed, which use was extinguished
in 1996, or was otherwise permissive.
FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF
15. Defendant repeats and realleges paragraphs 1 through 14 of this Verified
Answer.
16. Defendant is entitled to an order and judgment of this Court, pursuant to
CPLR 3001, declaring that to the extent of the Roeschlaub deed to Plaintiff's predecessors in
easement,"
interest granted the claimed "recreation it was extinguished by its own terms by the
Roeschlaub deed to Harvey as attached as Exhibit A.
WHEREFORE, Defendant David Strothers demands judgment dismissing the
Complaint as against him, together with judgment on his counterclaim against Plaintiff for a
declaration that Plaintiff's rights, as claimed to exist pursuant to the 1984 deed to Plaintiff's
predecessors in interest, was extinguished by the Roeschlaub sale to Harvey, together with
judgment for the costs of this action, disbursements, and such other and further relief as the
Court deems just and proper.
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018
Dated: June 19, 2018
Robert J. Slye, E
SLYE LAW OFFICES, P.C.
Attorneys for Defendant
David Strothers
Office and P. O. Address
104 Washington Street
Watertown, New York 13601
Telephone: (315) 786-0266
TO: Thomas P. Givas, Esq.
PAPPAS, COX, KIMPEL, DODD 86 LEVINE, P.C.
Attorneys for Plaintiff
614 James Street
Syracuse, New York 13203
Telephone: (315) 724-3164
Charles Peter Hunkele, Jr.,
80 North Dell Ave, Suite 12
Kenvil, New Jersey 07847
STATE OF NEW YORK )
) SS.:
COUNTY OF JEFFERSON )
Robert J. Slye, being duly sworn, deposes and says that he is the attorney for Defendant
David Strothers, that his office is not in the same County as the Defendant, that he has read the
foregoing Verified Answer, and that the same is true to his own knowledge, except as to those
matters stated to be upon information and belief, and as to those matters he believes itto be true;
and that the basis for his knowledge is meetings, discussions, and correspondence with the
Defendant.
Robert J.
S orn to before me this
&
i'b'
Spam
day o June, 2018.
COt1EEN A. HANRAHAN
c, State ofNew York
Public No. 01HA6314781 ((/
Notary
Commission Expires 11/17/20
4
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Preview
FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, VERIFIED ANSWER Plaintiff, Index No. EF2018-00001369 v. CHARLES PETER HUNKELE, JR., and DAVID STROTHERS Defendants. Defendant David Strothers, for a Verified Answer to the Verified Complaint of the Plaintiff: 1. Admits the allegations contained at paragraphs 3, 4, 5, 25 and 26 of the Verified Complaint. 2. Upon information and belief, admits the allegations contained at paragraphs 1, 2, 7 and 8 of the Verified Complaint. 3. Admits so much of the allegations contained at paragraph 9 of the Verified Complaint which allege that the deeds granted an easement for "the use of, along with others, of a parcel land along Lake Ontario, said land to be used for docking boats, fishing, swimming and area." as a picnic The original deed from Edith R. Abbey Roeschlaub continued, however "the grantor." use of said premises are subject to the sale of the same by the 4. Deny knowledge and information sufficient to form a belief as to the truth or falsity of the allegations contained at paragraphs 6, 13, 14, 15, 17, 18 and 27 of the Verified Complaint, and therefore deny the same. 5. Deny each and every remaining allegation of the Verified Complaint. 1 of 4 FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018 FOR A FIRST AFFIRMATIVE DEFENSE 6. The deed from Roeschlaub to Mervin and Barbara Miller which called for Millers' the "use of...a parcel of land along Lake Ontario, said land to be used for docking boats, area" fishing, swimming and as a picnic is separate from the grant "conveying the right to install a water pump and line from the lake to the above described 0.155 acre parcel, said water grantees." facilities to be maintained by the 7. The use, of docking boats, etc.,was expressly made "subject to the sale of grantor." the same by the 8. That provision put Plaintiff and his predecessors in title on notice that any sale by Edith J. Roeschlaub of the burdened property would serve to terminate the recreational use. 9. On September 20, 1996, Edith J. Roeschlaub, as trustee of her trust, conveyed the parcel now owned by this Defendant to Bernard L. Harvey and Michele A. Harvey. A copy of that deed is attached as exhibit A. 10. The Roeschlaub to Harvey deed contained a provision excepting and reserving to the Millers the right to "come upon the above described premises to maintain, repair and/or replace the water pump and underground power and water lines running from said pump..." puIIlp... 11. Otherwise, the deed from Roeschlaub to Harvey, being a sale by the easement." grantor, extinguished, as of 1996, Plaintiff's complained-of "recreation 2 2 of 4 FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018 FOR A SECOND AFFIRMATIVE DEFENSE 12. This Defendant's land was so overgrown with underbrush and undergrowth that Plaintiff could not possibly have utilized those lands for the claimed area." prescriptive use of "docking boats, fishing, swimming, or as a picnic 13. Subsequent to 1996, Plaintiff has not openly, notoriously, adversely, and continuously utilized this Defendant's land in the manner described in the Roeschlaub deed to Plaintiff in 1984. 14. Any period of use of the property by Plaintiff or his predecessors in title between 1984 and 1996 was not adverse, but was pursuant to deed, which use was extinguished in 1996, or was otherwise permissive. FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF 15. Defendant repeats and realleges paragraphs 1 through 14 of this Verified Answer. 16. Defendant is entitled to an order and judgment of this Court, pursuant to CPLR 3001, declaring that to the extent of the Roeschlaub deed to Plaintiff's predecessors in easement," interest granted the claimed "recreation it was extinguished by its own terms by the Roeschlaub deed to Harvey as attached as Exhibit A. WHEREFORE, Defendant David Strothers demands judgment dismissing the Complaint as against him, together with judgment on his counterclaim against Plaintiff for a declaration that Plaintiff's rights, as claimed to exist pursuant to the 1984 deed to Plaintiff's predecessors in interest, was extinguished by the Roeschlaub sale to Harvey, together with judgment for the costs of this action, disbursements, and such other and further relief as the Court deems just and proper. 3 3 of 4 FILED: JEFFERSON COUNTY CLERK 06/20/2018 10:05 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/20/2018 Dated: June 19, 2018 Robert J. Slye, E SLYE LAW OFFICES, P.C. Attorneys for Defendant David Strothers Office and P. O. Address 104 Washington Street Watertown, New York 13601 Telephone: (315) 786-0266 TO: Thomas P. Givas, Esq. PAPPAS, COX, KIMPEL, DODD 86 LEVINE, P.C. Attorneys for Plaintiff 614 James Street Syracuse, New York 13203 Telephone: (315) 724-3164 Charles Peter Hunkele, Jr., 80 North Dell Ave, Suite 12 Kenvil, New Jersey 07847 STATE OF NEW YORK ) ) SS.: COUNTY OF JEFFERSON ) Robert J. Slye, being duly sworn, deposes and says that he is the attorney for Defendant David Strothers, that his office is not in the same County as the Defendant, that he has read the foregoing Verified Answer, and that the same is true to his own knowledge, except as to those matters stated to be upon information and belief, and as to those matters he believes itto be true; and that the basis for his knowledge is meetings, discussions, and correspondence with the Defendant. Robert J. S orn to before me this & i'b' Spam day o June, 2018. COt1EEN A. HANRAHAN c, State ofNew York Public No. 01HA6314781 ((/ Notary Commission Expires 11/17/20 4 4 of 4