Motion-Secondary: Kenneth Miller v. David Strothers, Eric Bevard, Gretchen Bevard

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                                FILED: JEFFERSON COUNTY CLERK 08/20/2019 04:22 PM                                        INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 65                                                                     RECEIVED NYSCEF: 08/20/2019



         STATE OF NEW YORK
         SUPREME COURT   COUNTY OF JEFFERSON


         KENNETH MILLER,

                                               Plaintiff                      ATTORNEY
         vs.                                                                  AFFIDAVIT

         CHARLES PETER HUNKELE, JR. and DAVID                                Index No. EF2018-00001369
         STROTHERS,                                                          Hon. James McClusky, JSC

                                               Defendants.


         STATE OF NEW YORK   )
                             ) ss.:
         COUNTY OF ONONDAGA )

                  Alexandra S. Locke, being duly sworn, deposes and says:

                  1.    I am an attorney duly licensed in the State of New York andI am an associate in

         the law firm Barclay Damon, LLP, attorneys for the Defendant, Charles Peter Hunkele, Jr.

         (-Defendant"). As such, I am fully familiar with the facts and circumstances set forth herein.

                  2.    This Affidavit is submitted in further support of Defendant's motion for summary

         judgment of Plaintiff's complaint and is in reply to the August 14, 2019 Plaintiff's Affidavit in

         Opposition to Summary Judgment submitted by Thomas P. Givas ("Givas Affidavit") and

         Kenneth Miller ("Miller Affidavit") and Plaintiff's Memorandum of Law dated August 15, 2019

         ("Plaintiff's Memo") submitted by Plaintiff.

                  3.    Defendant respectfully refers the Court to the previously filed Affidavit of

         Alexandra S. Locke dated July 17, 2019 ("Locke Affidavit") and Memorandum of Law dated

         July 17, 2019 ("Defendant's Memo"), and all exhibits annexed thereto which are incorporated by

         reference herein with all defined terms having the same meanings and usage as set forth in

         Defendant's Memo.

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FILED: JEFFERSON COUNTY CLERK 08/20/2019 04:22 PM                                          INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 65                                                                      RECEIVED NYSCEF: 08/20/2019



                  4.    A Supplemental Memorandum of Law dated August 20, 2019 ("Supplemental

         Memo") has been submitted in further support of this Affidavit.

                  5.    In Point II of Plaintiff's Memo, Plaintiff argues that the transfer of the Miller

         property into a revocable trust for the Grantor constituted a transfer which would have

         extinguished any right by the Grantor to terminate the rights to the Millers. This argument is

         flawed in that it provides no legal basis to show that a transfer for estate planning purposes for

         the benefit of the same Grantor constitutes a transfer that would extinguish the Grantor's right to

         terminate a license granted by such Grantor. (see Supplemental Memo, pp. 1-2). This assertion

         also disregards the undisputable fact that once an actual third party transfer was made (to the

         Harvey's), the rights contained in the Miller Deed to the recreation area were not similarly

         carried forward in title. (Givas Affidavit, Ex. G, p. 4; Locke Affidavit, Ex. D, pp.1-2). Therefore,

         the Court can infer that Grantor's true intent with including the "subject to sale" language in the

         Miller Deed was meant to extinguish the rights granted to the Millers upon a bona fide sale of the

         property. (Locke Affidavit Ex. A, p. 8).

                  6.    Secondly, in paragraph 6 of the Givas Affidavit and in Point I of Plaintiff's

         Memo, Plaintiff argues that an easement was intended by the Grantor of the Miller Deed because

         the right was set forth in a deed and the language at the beginning and end of the Miller Deed

         contained the words "heirs and assigns". However, it must be noted that the "heirs and assigns"

         language contained in the Miller Deed is part of the deed form itself (Locke Affidavit, Ex. A, pp.

         7, 9). The language specifically setting forth the recreational area rights contained only the words

         "to the grantees". (Locke Affidavit, Ex. A, p. 8).




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FILED: JEFFERSON COUNTY CLERK 08/20/2019 04:22 PM                                         INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 65                                                                     RECEIVED NYSCEF: 08/20/2019



                       7.    For the reasons discussed herein, in the Supplemental Memo, and in Defendant's

          previously submitted papers, there is no material issue of fact and Defendant respectfully

          requests that the Court grant Defendant's motion of summary judgment against the Plaintiff.




                                                                        Alexandra S. Locke

         Subscribed and sworn to before me
         this,g0 day of August, 2019



         Notary ublic

                      ELLEN A. DISANTO York
               Notary Public, State of New 4894526
              Qualified in Cayuga Co. No. 20
              C ommission   Expires July 6,




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