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FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
AFFIRMATION
Plaintiff,
Index No. EF2018-00001369
v. RJI No.
CHARLES PETER HUNKELE, JR., and
DAVID STROTHERS,
Defendants.
Robert J. Slye, under penalties of perjury, affirms:
1. I am an attorney at law, duly admitted to practice in the State of New
York, and a shareholder in Slye Law Offices, P.C., attorneys for Defendant David Strothers in
this action. I am fully familiar with the facts and circumstances of this case.
Strothers'
2. This affirmation is submitted in support of Defendant Mr.
motion for summary judgment dismissing each cause of action of the complaint as against him.
3. A copy of the Amended Complaint is attached as Exhibit "A".
Strothers'
4. A copy of Defendant Verified Answer is attached as Exhibit
"B".
Complaint,"
5. Neither Defendant answered the "Amended because the only
change was the addition of a 1984 survey of the property which the amended pleading included
as part of its Exhibit "C".
Strothers'
6. Plaintiff's Reply to Defendant Verified Answer is attached
hereto as Exhibit "C".
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FIRST CAUSE OF ACTION - RECREATIONAL USE
7. The essence of Plaintiff's first cause of action is that the Defendants refuse
Defendants' area."
to allow Plaintiff and his friends to utilize both property as a "recreation
Defendants'
Plaintiff claims an entitlement to use both properties, including their waterfront, for
the launching and docking of boats, fishing, parties, and other get-togethers.
area"
8. Evidence of past use of the "recreational by virtually everyone in the
neighborhood was adduced during the testimony of James E. Ellinger conducted on November
19, 2018. Relevant pages from that testimony (pages 14-23) are attached as Exhibit "D".
9. For example, as questioned by Mr. Givas:
Question - Okay. And did you move there? Was that '87?
when, again,
Answer - '88.
'87,
See Exhibit "D", page 14, lines 10-12
Question - Okay. And as far as this recreation would you have ever used that -- that
area,
piece of property?
Answer: Are you talking on the water?
Question: Yeah. It's a little square thing on the water here.
Answer: Yeah. I mean, we -- we went down we utilized it for, you
there, know, putting
go fishing. We also used -- we also had access to the screened-in porch of the
chairs,
Roeschlaubs before it was tore down.
Question: okay.
Answer: There was a big screened-in porch right near the trailer, and we all utilized that.
-- "all," -- if
And I say by I say basically the community because there somebody wanted
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to have a get-together or something like that, I mean, we'd go over there because it was
all screened in. So it was, you know, for, you know, flies or whatever. And, you know,
we'd have, you know, hot dogs, hamburgers and a couple of beers, whatever it might
have been, in all said area (indicating). So you'd see kids down here. You'd see all
kinds of stuff going on. The only thing we never really used was the dock because it
wasn't utilized properly for, you know, bigger boats to come in, so they would use my
dock over here (indicating), you know, for big boats, you know, traveling, waterskiing
and that kind of stuff.
See Exhibit "D", page 15, line 21 - page 16, Line 23.
Questioning by Mr. Slye:
Question: So Merv Miller told you you could use the waterfront along Black River Bay;
right?
Answer: because there was -- there was always an agreement that can get
Yes, they
down through that no one could from down those -- let's
there, stop anybody getting say
the path to the stairs to use said shoreline.
Question: And I think you said that Mr. Merv Miller had told you that they had
permanent access; is that right?
Answer: I -- yes, sir. Permanent. They
-- it was an agreement with them. As I'm saying
only by saying that, is that they had an agreement that that was always to be used through
all -- no matter who owned the properties.
See Exhibit "D", page 22, line 20 - page 23, line 8
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10. Plaintiff's claim derives from a deed by Edith R. Abbey Roeschlaub to
Mervin Miller and Barbara Miller on November 5, 1984. A copy of that deed, together with all
other deeds which are relevant to this motion, are part of the Notice of Pendency filed by Mr.
Miller against the properties owned by Defendants on June 3, 2019. A copy of the Notice of
Pendency, which contains each of the deeds in question, is attached as Exhibit E".
11. The Roeschlaub to Miller deed contained the following provision:
ALSO, granting and conveying to the grantees the use of,
along with others, of a parcel of land along Lake Ontario,
said land to be used for docking boats, fishing, swimming
and as a picnic area, and also granting and conveying the
right to install a water pump and line from the lake to the
above described 0.155 acre parcel, said water facilities to
be maintained by the grantees. The use of said premises
are subject to the sale of the same by the grantor. (emphasis
added).
See the first deed at Exhibit "E".
12. Interestingly, rules were instituted in the deed for the use of the so-called
area." "rules"
"recreation The include the following: A) While adhering to all rules and
regulations posted in said area, special permission is needed from grantor for parties of more
than eight (8) persons in the recreation area. Special booking for use of screen house is needed,
pursuant to availability. Maintenance of dock and recreation area expenses are to be shared
equally by property owners.
See the November 5, 1984 deed at Liber 1081, page 247.
13. The inclusion of this additional language makes clear that even the
grantor, Ms. Roeschlaub, was concerned that the recreation area could be abused: so she decided
regulations" permission."
to post "rules and and to be asked for "special
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14. Most importantly, she made "the use of said premises...subject to the sale
grantor."
of the same by
"E" Strothers'
15. Exhibit makes reference to the Mr. deed separately at it_s
Strothers'
Exhibit "C". (NYSCEF Doc. No. 49). The deed reflects that it came from Mary Jane
Harvey and Bernard L. Harvey, who had previously obtained their deed from Bernard L. Harvey
and Michelle A. Harvey (former wife of Bernard Harvey). The Harveys received their deed to
the property directly from Mrs. Roeschlaub. See Exhibit "F".
"F"
16. Importantly, Exhibit reflects that an exception and reservation was
made for the benefit of Mervin and Barbara Miller, their heirs and assigns, "the right to enter
upon the above described premises to maintain, repair and or replace the water pump and
pump...."
underground power and water lines running from said
use"
17. But no reservation of a "recreation was part of the Roeschlaub deed
to the Harveys.
18. Indeed, according to the testimony of Bernard Harvey, given on
November 19, 2018, he confirmed that there was no right to use his property by the Millers
and/or their cadre of friends. For example, at page 9 of his testimony, he stated as follows:
By Mr. Slye:
Question: When you went to buy the were you aware of then --
property, existing
previously existing deeded rights to utilize a portion of the property you bought?
Answer: Yeah. On -- on this side of my property, on the east side of the property, there
was a right-of-way for an underground water line and electric line to this. There was a
pump house on the shoreline down here (indicating).
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Question: All right. Was there also a -- I want to make sure I use the right language.
Was there a right for persons to use land along Lake Ontario for docking boats, fishing,
swimming and as a picnic area?
Answer: No.
Question: Okay. Not on your property; correct?
Answer: I was advised not to buy the property if that was going to stay. Mrs.
Roeschlaub also used John Camann for a lawyer because it was just an inexpensive sale
there, and that was taken out when I bought the property.
Question: Okay.
Answer: When I bought my property.
out." --
Question: Okay. When you say "that was taken that's an area
Answer: Forty foot by the length of the property, across the front.
Question: Okay. Slow down a minute. Is that the area denominated recreation area --
Answer: Yes.
-- on "I" -- do
Question: Exhibit A? [here Exhibit to this affirmation]. And how far did
you see where on Exhibit A it shows parcels A, B and C?
"C."
Answer: Yes. It was taken out on
"C;"
Question: When you purchased your property, it was taken out on is that correct?
Answer: Correct.
Question: And how do you know that?
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Answer: I was told by my lawyer don't buy it unless Mrs. Roeschlaub had it -- make
arrangements to take it away from there. So I proceeded to go and sign and buy it when
that was taken care of.
Question: Okay. What did you come to understand of how it was -- as you call it --
taken care of? What was your understanding?
.
Answer: She had to talk to Merv and Barb Miller about that. I don't know if there was
actual signing off from it, but she spoke to them and they knew about it.
Question: Did you have the property surveyed again in 1996?
Answer: Yes.
Question: Okay, and you paid for the survey in '96?
Answer: Yes I did.
See portions of the transcript of Bernard L. Harvey of November 19, 2018, attached as Exhibit
"G"
(page 9, line 3 - page 11, line 4).
Mr. Harvey's testimony continued on page 15:
By Mr. Slye:
Question: Now, after you bought the property, did you ever have any conversations with
the Millers in connection with their use of parcel C as shown on [the survey] Exhibit A?
Answer: No.
Question: None of the Millers?
Answer: No.
Question: And by that I'm including not only Mervin and Barbara Miller but also
Kenneth Miller?
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Answer: The only person I actually had a discussion with about it would have been Merv
and Barb. And the only thing they ever used was there was a cooker fireplace right here
on -- on B in the screen house (indicating). cooked breakfasts in there. And that
They
faded away after a few years. They quit doing it.
19. Finally, Mr. Harvey identified that he utilized the same attorney for the
as did Ms. Roeschlaub - John Camann from Creek. See the at
closing Sandy Harvey testimony
page 7, line 7 - line 9, at Exhibit "H".
20. The survey identified by Mr. Harvey as being updated by him in 1996 is
attached to this Affirmation as Exhibit "I".
"I"
21. Exhibit reflects that it was revised in August 1996. The deed from
Roeschlaub to Harvey (Exhibit "F") is dated the next month, on September 20, 1996.
"I"
22. Exhibit reflects the following revisions as noted by the surveyor:
1. Remove 0.159 ac. & recreation area
2. Add 0.252 ac. lot, pumps & water lines
3. Change title
4. Add 0.043 ac. r.o.w.
See Exhibit "I".
"I"
23. Thus, when one compares Exhibit with the original 1984 survey
contained as part of Ex. C to the Amended Complaint (here, Ex. A), it is clear that the
area"
"recreation was removed by the deed to Harvey. See the northerly part of the 1984 survey
area"
labeled "recreation as it extended across lots B and C.
cottage"
24. Moreover, the 1984 lot size of 0.159 for the "trailer was removed,
and replaced by a 0.252 acre lot showing pumps and water lines. (See Exhibit "I").
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"I"
25. Exhibit was created at the time title changed from Mrs. Roeschlaub to
the Harveys, and the deed description which was prepared follows the 1996 survey.
"I"
26. Finally, the survey at Exhibit added a specific right of way for the
Harvey/Strothers'
benefit of the property. It specifically allowed entry to that property along its
"B"
western border, as opposed having to cross a portion of parcel without a right of way.
27. I respectfully submit that it could not be more clear that the deed to the
"sale" premises,"
Harveys by Ms. Roeschlaub constituted a which discontinued the "use of said
grantor"
and which comports with the language "subject to the sale of the same by the in her
original deed to Millers in 1984.
28. It further could not be more clear that the 1996 sale to the Harveys clearly
area." "I"
evinced an intent to extinguish the "recreation See Exhibit and the deed description to
the Harveys at Exhibit "F".
29. Thus, there is no way that Kenneth Miller, by deed dated February 2014
(when he served as administrator of the estate of his father, Mervin H. Miller), could have
granted himself "the use of, along with others, of a parcel of land along Lake Ontario, said land
area...."
to be used for docking boats, fishing, swimming and a picnic as that phrase was used in
area" "B"
the original 1984 deed. No such "recreation then existed along either parcels or "C",
all as shown by the survey map attached as Exhibit "I".
30. Based upon all the foregoing, I respectfully submit that Defendant David
"C"
Strothers, being the grantee of parcel as conveyed by the Harveys, is entitled to summary
judgment dismissing the first cause of action of the Amended Complaint.
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SECOND CAUSE OF ACTION - CLAIMED EASEMENT
TO THE WATER
31. Enforcement of a claimed "deeded...10 foot easement from their property
water"
to the is sought in Plaintiff's second cause of action. A review of the 1984 deed,
however, (again, attached as part of Plaintiff's Notice of Pendency which now places a cloud
upon the title of the Defendants), states only as follows:
The grantees herein accept this property subject to the following
conditions, all of which the grantees accept and agree to:
B) Accessibility to lake is granted to grantees by corridor ten (10)
feet wide from a point of southwesterly surveyor's stake of Miller
property to northwesterly stake of Miller property east ten (10) feet
to southwesterly stake of Abbey property following a northerly
line ten (10) feet wide to a stake at northwesterly Abbey property,
a recreation area. (emphasis added).
See 1984 deed at recorded page 247.
32. Again,
Preview
FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, AFFIRMATION Plaintiff, Index No. EF2018-00001369 v. RJI No. CHARLES PETER HUNKELE, JR., and DAVID STROTHERS, Defendants. Robert J. Slye, under penalties of perjury, affirms: 1. I am an attorney at law, duly admitted to practice in the State of New York, and a shareholder in Slye Law Offices, P.C., attorneys for Defendant David Strothers in this action. I am fully familiar with the facts and circumstances of this case. Strothers' 2. This affirmation is submitted in support of Defendant Mr. motion for summary judgment dismissing each cause of action of the complaint as against him. 3. A copy of the Amended Complaint is attached as Exhibit "A". Strothers' 4. A copy of Defendant Verified Answer is attached as Exhibit "B". Complaint," 5. Neither Defendant answered the "Amended because the only change was the addition of a 1984 survey of the property which the amended pleading included as part of its Exhibit "C". Strothers' 6. Plaintiff's Reply to Defendant Verified Answer is attached hereto as Exhibit "C". 1 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 FIRST CAUSE OF ACTION - RECREATIONAL USE 7. The essence of Plaintiff's first cause of action is that the Defendants refuse Defendants' area." to allow Plaintiff and his friends to utilize both property as a "recreation Defendants' Plaintiff claims an entitlement to use both properties, including their waterfront, for the launching and docking of boats, fishing, parties, and other get-togethers. area" 8. Evidence of past use of the "recreational by virtually everyone in the neighborhood was adduced during the testimony of James E. Ellinger conducted on November 19, 2018. Relevant pages from that testimony (pages 14-23) are attached as Exhibit "D". 9. For example, as questioned by Mr. Givas: Question - Okay. And did you move there? Was that '87? when, again, Answer - '88. '87, See Exhibit "D", page 14, lines 10-12 Question - Okay. And as far as this recreation would you have ever used that -- that area, piece of property? Answer: Are you talking on the water? Question: Yeah. It's a little square thing on the water here. Answer: Yeah. I mean, we -- we went down we utilized it for, you there, know, putting go fishing. We also used -- we also had access to the screened-in porch of the chairs, Roeschlaubs before it was tore down. Question: okay. Answer: There was a big screened-in porch right near the trailer, and we all utilized that. -- "all," -- if And I say by I say basically the community because there somebody wanted 2 2 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 to have a get-together or something like that, I mean, we'd go over there because it was all screened in. So it was, you know, for, you know, flies or whatever. And, you know, we'd have, you know, hot dogs, hamburgers and a couple of beers, whatever it might have been, in all said area (indicating). So you'd see kids down here. You'd see all kinds of stuff going on. The only thing we never really used was the dock because it wasn't utilized properly for, you know, bigger boats to come in, so they would use my dock over here (indicating), you know, for big boats, you know, traveling, waterskiing and that kind of stuff. See Exhibit "D", page 15, line 21 - page 16, Line 23. Questioning by Mr. Slye: Question: So Merv Miller told you you could use the waterfront along Black River Bay; right? Answer: because there was -- there was always an agreement that can get Yes, they down through that no one could from down those -- let's there, stop anybody getting say the path to the stairs to use said shoreline. Question: And I think you said that Mr. Merv Miller had told you that they had permanent access; is that right? Answer: I -- yes, sir. Permanent. They -- it was an agreement with them. As I'm saying only by saying that, is that they had an agreement that that was always to be used through all -- no matter who owned the properties. See Exhibit "D", page 22, line 20 - page 23, line 8 3 3 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 10. Plaintiff's claim derives from a deed by Edith R. Abbey Roeschlaub to Mervin Miller and Barbara Miller on November 5, 1984. A copy of that deed, together with all other deeds which are relevant to this motion, are part of the Notice of Pendency filed by Mr. Miller against the properties owned by Defendants on June 3, 2019. A copy of the Notice of Pendency, which contains each of the deeds in question, is attached as Exhibit E". 11. The Roeschlaub to Miller deed contained the following provision: ALSO, granting and conveying to the grantees the use of, along with others, of a parcel of land along Lake Ontario, said land to be used for docking boats, fishing, swimming and as a picnic area, and also granting and conveying the right to install a water pump and line from the lake to the above described 0.155 acre parcel, said water facilities to be maintained by the grantees. The use of said premises are subject to the sale of the same by the grantor. (emphasis added). See the first deed at Exhibit "E". 12. Interestingly, rules were instituted in the deed for the use of the so-called area." "rules" "recreation The include the following: A) While adhering to all rules and regulations posted in said area, special permission is needed from grantor for parties of more than eight (8) persons in the recreation area. Special booking for use of screen house is needed, pursuant to availability. Maintenance of dock and recreation area expenses are to be shared equally by property owners. See the November 5, 1984 deed at Liber 1081, page 247. 13. The inclusion of this additional language makes clear that even the grantor, Ms. Roeschlaub, was concerned that the recreation area could be abused: so she decided regulations" permission." to post "rules and and to be asked for "special 4 4 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 14. Most importantly, she made "the use of said premises...subject to the sale grantor." of the same by "E" Strothers' 15. Exhibit makes reference to the Mr. deed separately at it_s Strothers' Exhibit "C". (NYSCEF Doc. No. 49). The deed reflects that it came from Mary Jane Harvey and Bernard L. Harvey, who had previously obtained their deed from Bernard L. Harvey and Michelle A. Harvey (former wife of Bernard Harvey). The Harveys received their deed to the property directly from Mrs. Roeschlaub. See Exhibit "F". "F" 16. Importantly, Exhibit reflects that an exception and reservation was made for the benefit of Mervin and Barbara Miller, their heirs and assigns, "the right to enter upon the above described premises to maintain, repair and or replace the water pump and pump...." underground power and water lines running from said use" 17. But no reservation of a "recreation was part of the Roeschlaub deed to the Harveys. 18. Indeed, according to the testimony of Bernard Harvey, given on November 19, 2018, he confirmed that there was no right to use his property by the Millers and/or their cadre of friends. For example, at page 9 of his testimony, he stated as follows: By Mr. Slye: Question: When you went to buy the were you aware of then -- property, existing previously existing deeded rights to utilize a portion of the property you bought? Answer: Yeah. On -- on this side of my property, on the east side of the property, there was a right-of-way for an underground water line and electric line to this. There was a pump house on the shoreline down here (indicating). 5 5 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 Question: All right. Was there also a -- I want to make sure I use the right language. Was there a right for persons to use land along Lake Ontario for docking boats, fishing, swimming and as a picnic area? Answer: No. Question: Okay. Not on your property; correct? Answer: I was advised not to buy the property if that was going to stay. Mrs. Roeschlaub also used John Camann for a lawyer because it was just an inexpensive sale there, and that was taken out when I bought the property. Question: Okay. Answer: When I bought my property. out." -- Question: Okay. When you say "that was taken that's an area Answer: Forty foot by the length of the property, across the front. Question: Okay. Slow down a minute. Is that the area denominated recreation area -- Answer: Yes. -- on "I" -- do Question: Exhibit A? [here Exhibit to this affirmation]. And how far did you see where on Exhibit A it shows parcels A, B and C? "C." Answer: Yes. It was taken out on "C;" Question: When you purchased your property, it was taken out on is that correct? Answer: Correct. Question: And how do you know that? 6 6 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 Answer: I was told by my lawyer don't buy it unless Mrs. Roeschlaub had it -- make arrangements to take it away from there. So I proceeded to go and sign and buy it when that was taken care of. Question: Okay. What did you come to understand of how it was -- as you call it -- taken care of? What was your understanding? . Answer: She had to talk to Merv and Barb Miller about that. I don't know if there was actual signing off from it, but she spoke to them and they knew about it. Question: Did you have the property surveyed again in 1996? Answer: Yes. Question: Okay, and you paid for the survey in '96? Answer: Yes I did. See portions of the transcript of Bernard L. Harvey of November 19, 2018, attached as Exhibit "G" (page 9, line 3 - page 11, line 4). Mr. Harvey's testimony continued on page 15: By Mr. Slye: Question: Now, after you bought the property, did you ever have any conversations with the Millers in connection with their use of parcel C as shown on [the survey] Exhibit A? Answer: No. Question: None of the Millers? Answer: No. Question: And by that I'm including not only Mervin and Barbara Miller but also Kenneth Miller? 7 7 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 Answer: The only person I actually had a discussion with about it would have been Merv and Barb. And the only thing they ever used was there was a cooker fireplace right here on -- on B in the screen house (indicating). cooked breakfasts in there. And that They faded away after a few years. They quit doing it. 19. Finally, Mr. Harvey identified that he utilized the same attorney for the as did Ms. Roeschlaub - John Camann from Creek. See the at closing Sandy Harvey testimony page 7, line 7 - line 9, at Exhibit "H". 20. The survey identified by Mr. Harvey as being updated by him in 1996 is attached to this Affirmation as Exhibit "I". "I" 21. Exhibit reflects that it was revised in August 1996. The deed from Roeschlaub to Harvey (Exhibit "F") is dated the next month, on September 20, 1996. "I" 22. Exhibit reflects the following revisions as noted by the surveyor: 1. Remove 0.159 ac. & recreation area 2. Add 0.252 ac. lot, pumps & water lines 3. Change title 4. Add 0.043 ac. r.o.w. See Exhibit "I". "I" 23. Thus, when one compares Exhibit with the original 1984 survey contained as part of Ex. C to the Amended Complaint (here, Ex. A), it is clear that the area" "recreation was removed by the deed to Harvey. See the northerly part of the 1984 survey area" labeled "recreation as it extended across lots B and C. cottage" 24. Moreover, the 1984 lot size of 0.159 for the "trailer was removed, and replaced by a 0.252 acre lot showing pumps and water lines. (See Exhibit "I"). 8 8 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 "I" 25. Exhibit was created at the time title changed from Mrs. Roeschlaub to the Harveys, and the deed description which was prepared follows the 1996 survey. "I" 26. Finally, the survey at Exhibit added a specific right of way for the Harvey/Strothers' benefit of the property. It specifically allowed entry to that property along its "B" western border, as opposed having to cross a portion of parcel without a right of way. 27. I respectfully submit that it could not be more clear that the deed to the "sale" premises," Harveys by Ms. Roeschlaub constituted a which discontinued the "use of said grantor" and which comports with the language "subject to the sale of the same by the in her original deed to Millers in 1984. 28. It further could not be more clear that the 1996 sale to the Harveys clearly area." "I" evinced an intent to extinguish the "recreation See Exhibit and the deed description to the Harveys at Exhibit "F". 29. Thus, there is no way that Kenneth Miller, by deed dated February 2014 (when he served as administrator of the estate of his father, Mervin H. Miller), could have granted himself "the use of, along with others, of a parcel of land along Lake Ontario, said land area...." to be used for docking boats, fishing, swimming and a picnic as that phrase was used in area" "B" the original 1984 deed. No such "recreation then existed along either parcels or "C", all as shown by the survey map attached as Exhibit "I". 30. Based upon all the foregoing, I respectfully submit that Defendant David "C" Strothers, being the grantee of parcel as conveyed by the Harveys, is entitled to summary judgment dismissing the first cause of action of the Amended Complaint. 9 9 of 11 FILED: JEFFERSON COUNTY CLERK 07/25/2019 08:15 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 07/25/2019 SECOND CAUSE OF ACTION - CLAIMED EASEMENT TO THE WATER 31. Enforcement of a claimed "deeded...10 foot easement from their property water" to the is sought in Plaintiff's second cause of action. A review of the 1984 deed, however, (again, attached as part of Plaintiff's Notice of Pendency which now places a cloud upon the title of the Defendants), states only as follows: The grantees herein accept this property subject to the following conditions, all of which the grantees accept and agree to: B) Accessibility to lake is granted to grantees by corridor ten (10) feet wide from a point of southwesterly surveyor's stake of Miller property to northwesterly stake of Miller property east ten (10) feet to southwesterly stake of Abbey property following a northerly line ten (10) feet wide to a stake at northwesterly Abbey property, a recreation area. (emphasis added). See 1984 deed at recorded page 247. 32. Again,