Preview
FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020
EXHIBIT A
FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020
SUPREME COURT
STATE OF NEW YORK COUNTY OF JEFFERSON
KENNETH MILLER,
Plaintiff.
AMENDED COMPLAINT
VS. Index No.:
CHARLES PETER HUNKELE, JR., and
DAVID STROTHERS
Defendants.
Plaintiff, complaiñing of the Defendants, respectfully alleges and shows to the
Court as follows:
1. At alltimes mentioned herein the Plaintiff, Kenneth Miller, was and stillis a resident of
the City of Albuquerque in the State of New Mexico residing at 10505 Snow Heights Blyd, NE,
Albuquerque, New Mexico 87112.
2. Upon information and belief, the Defendant Charles Peter Hunkele, Jr. was and stillis a
resident of the City of Kenvil in the State of New Jersey with a residence located at 80 North
Dell Ave, Suite 12 in Kevil, New Jersey 07847.
3. Upon information and belief, the Defendant David Strothers was and stillis a resident of
Ellicott City in the State of Maryland with a residence located at 9804 Middle Meadow Road,
Ellicott City, Maryland 21041.
4. The Plaintiff is the owner of certain real estate located in the Town of Hounsfield in the
County of Jefferson.
5. Plaintiff's property was initially deeded by Edith R. Abbey Roeschlaub to Mervin Miller
5th
and Barbara Miller on or about the day of November 1984. A copy of that deed is annexed
hereto, made a part hereof and labeled Exhibit A.
Pappas, Cox, Kimpel,Dodd & Levine, P.C.
Syracuse, New York
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6. Both Barbara Miller and Mervin H. Miller passed away.
18th
7. On or about the day of February 2014, Kemeth Miller, as the Administrator of the
Estate of Mervin H. Miller, deeded said property to the Plaintiff, Kenneth Miller. A copy of said
deed is amexed hereto, made a part hereof and labeled Exhibit B.
8. The Plaintiff is the owner of the real property located off Storrs Road set forth in Exhibits
A and B.
9. In addition, said deeds granted and conveyed to the owner of Plaintiff's property,
easements providing for the use of a recreational area, the right to install a and access to
pump
the lake.
10. Amexed hereto and made a part hereof and labeled Exhibit C is a copy of the map for
the area in question.
I1. The Plaintiff and Plaintiff's predecessors used the easements for recreational and access
purposes for thirty years since the easements were granted.
12. There are two properties which are subject to the easements Those properties are owned
by the Defendants.
13. One property was owned by Edith R. Abbey Roeschlaub.
14. That property was then placed in the Edith R. Abbey Roeschlaub Trust and was deeded
20th
on or about the day of August 2009 by Charles Roeschlaub as Successor Trustee of the Edith
R. Abbey Roeschlaub Trust to the Defendent Charles Peter Hunkele, Jr. A copy of that deed is
annexed hereto, made a part hereof and labeled Exhibit D.
15. Said deed provides that itis subjeet to the rights of ingress and egress across the parcel as
mentioned in the deeds to Harvey and Miller and is also subject to any restrictions and easements
of record.
Pappas, Cox, Kimpel,Dodd & Levine, P,C.
Syracuse, New York
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16. The second neighboring parcel which is subject to the easement was owned by Michele
A. Harvey and Bernard Harvey who transferred the property to Bernard L. Harvey and Mary
Jane Harvey by deed dated March 13, 2002.
17. Thereafter, Mary Jane Harvey and Bernard Harvey transferred the to the
property
Defendant David Strothers by means of deed dated June 11, 2015. A copy of deed is annexed
hereto, made a part hereof and labeled Exhibit E.
18. Said deed also provided that itwas subject to any easements, rights of ways, covenants
and restrictions of record.
19. The Plaintiff and Plaintiff predecessors were granted easements allowing for the use of
the Defendat's property for the water line and pump, a recreational area and a 10 foot access
area. Those easements were used over a period of about 30 years.
20. The two properties, which are subject to the easements, were transferred to the
recently
Defendants who have refused to honor the easements.
21. The DefePa=†: have moved their docks and stairs in order to prevent Plaintiff's use of
the êâserñêñts, access to use of the recreational area and have refused to allow access to the 10
foot right of way to the lake.
22. As a result, Plaintiff has not been able to use the easements.
23. The Defendants have unjustly claimed that the Plaintiff has no easements or interest in
the real estate.
24. Plaintiff is entitled to a Declaratory Judgment against the Defendants stating that the
Defendants'
Plaintiff has easements on the properties for the water line and pump, a recreational
area and a 10 foot right of way and that the Defendants are ordered to allow the lawful, peaceful
and uninterrupted use of said easements by the Plaintiff and Plaintiff's successors.
Pappas, Cox, Kimpel,Dodd & Levine, P.C,
Syracuse, New York
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25. None of the Defendants are unknown and none are infants, or incompetent to monaso
themselves or their affairs.
26. Any judgment granted herein will not affect any person or persons not in being or
ascertained at the commeñcement of this action, who by any contingency contained in a devise
or grant or otherwise could afterward become entitled to a benencial estate or interest in the
aforesaid mentioned premises, and that every person in being who would have been entitled to
such an estate or interest, if such event had happened immediately before the conuñêñcement of
this action is named a party hereto.
27. No personal claim is made against the Defêñdâñts herein, unless said Defendants assert a
claim adverse to the claim of the Plaintiff as set forth in this complaint.
Defendants'
28. The claims are adverse to that of the Plaintiff and Plaintiff is entitled to
Declaratory Judgment as requested above.
AS AND FOR A SECOND CAUSE OF ACTION
Plaintiff repeats each allegation previously made and further alleges and shows the Court
as follows:
Plaintiffs'
29. As set forth above, the Plaintiff and Predecessors were deeded a 10 foot
easement from their property to the water. The shoreline at that location is rocky and has been
used continuously with a set of stairs and a dock in coññectich with the easement.
30. The Defendants have moved the stairs and docks such that the shoreline and water is no
longer accessible from the easement.
31. Stairs and a dock are necessary in order to continue the use of the easement.
Pappas, Cox,Kimpel, Dodd & Levine,P.C.
Syracuse, New York
Page 5 of 7
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32. Plaintiff requested permissian to construct stairs on the right of way going down to the
water and a dock. Both Defendants have refused Plaintiff's request and have been denying the
Plaintiff the use of the easement.
33. None of the Defendants are unknown and none are infants, or incompetent to wiañage
themselves or their affairs.
34. 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 contiñgelicy contained in a devise
or grant or otherwise could afterward become entitled to a beneficial estate or interest in the
aforesaid mentioned premises, and that every person in being who would have been entitled to
such an estate or interest, if such event had happened immediately before the commencement of
this action is named a party hereto.
35. No personal claim is made against the Defendants herein, unless said Defendants assert a
claim adverse to the claim of the Plaintiff as set forth in this complaint.
Defendants'
36. The claims are adverse to that of the Plaintiff and Plaintiff is entitled to
Judgment in that Plaintiff may construct stairs and a dock in connection with the use
Declaratory
of the right of and/or any injunction preventing the Defêñdâñts from interfering with the use
way
of the easement.
WHEREFORE, the Plaintiff demands Judgment:
1. Against the Defendants declaring that the Plaintiff and all persons cleiei::g through the
Plaintiff have easements against the property of the Defendants which provide for the water line
and pump, a recreational area and a 10 foot right of way;
Pappas, Cox,Kimpel, Dodd & Levine,P.C.
Syracuse,New York
Page 6 of 7
FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020
2. The Plaintiff also requests further Judgment against the Defendants claiming the Plaintiff
is entitled to construct stairs and a dock in coimectiGn with the 10 foot right of way caseiñêñt
and/or any injunction preventing the Defendants from interfering with the use of the cascmcnt.
3. That the Defendants are barred from taking any actions which would interfere with
Plaintiff's use of the easements as declared by the court, together with the costs and
'
disbursements and t such other and further relief as the C ma eem t and proper.
Date: November 2018
THOMA . GIVAS, ESQ.
PAPPA , COX, KIMPEL, DODD & LEVINE, P.C.
Attorneys for Plaintiff
614 James Street
Syracuse, New York 13203
Tel: (315) 472-4481
Fax: (315) 472-2289
Email: / eivas@pappascoxlaw.com
VERIFICATION
STATE OF-NEW-¥0RK )
Gentd i BO ) SS:
COUNTY OFJEEEERSON )
KENNETH MILLER, being duly sworn, deposes and says that Deponent is the Plaintiff in
the within that Deponent has read the foregoing Amended Summons and Complaint and
action;
knows the contents thereof; that the same is true to Deponent's own knowledge, except as to the
matter therein stated to be alleged on information and belief, and that as to those matters Dnonet
believes itto be true; the basis of Plaintiff's knowled s h is e owner of the real property in
connection with this action.
TH
Swom before me this P
day o lcAmW , 2018.
SEAL
OF FICIAL
Alyssa Ortiz
NOTARY PUBLIC
N lic sTATE OF NEW MEXICO
Commission Expires: 7 C/701
My
Pappas, Cox, Kimpel,Dodd & Levine, P.C.
Syracuse, New York
Page 7 of 7
Preview
FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 EXHIBIT A FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF JEFFERSON KENNETH MILLER, Plaintiff. AMENDED COMPLAINT VS. Index No.: CHARLES PETER HUNKELE, JR., and DAVID STROTHERS Defendants. Plaintiff, complaiñing of the Defendants, respectfully alleges and shows to the Court as follows: 1. At alltimes mentioned herein the Plaintiff, Kenneth Miller, was and stillis a resident of the City of Albuquerque in the State of New Mexico residing at 10505 Snow Heights Blyd, NE, Albuquerque, New Mexico 87112. 2. Upon information and belief, the Defendant Charles Peter Hunkele, Jr. was and stillis a resident of the City of Kenvil in the State of New Jersey with a residence located at 80 North Dell Ave, Suite 12 in Kevil, New Jersey 07847. 3. Upon information and belief, the Defendant David Strothers was and stillis a resident of Ellicott City in the State of Maryland with a residence located at 9804 Middle Meadow Road, Ellicott City, Maryland 21041. 4. The Plaintiff is the owner of certain real estate located in the Town of Hounsfield in the County of Jefferson. 5. Plaintiff's property was initially deeded by Edith R. Abbey Roeschlaub to Mervin Miller 5th and Barbara Miller on or about the day of November 1984. A copy of that deed is annexed hereto, made a part hereof and labeled Exhibit A. Pappas, Cox, Kimpel,Dodd & Levine, P.C. Syracuse, New York Page 2 of 7 FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 6. Both Barbara Miller and Mervin H. Miller passed away. 18th 7. On or about the day of February 2014, Kemeth Miller, as the Administrator of the Estate of Mervin H. Miller, deeded said property to the Plaintiff, Kenneth Miller. A copy of said deed is amexed hereto, made a part hereof and labeled Exhibit B. 8. The Plaintiff is the owner of the real property located off Storrs Road set forth in Exhibits A and B. 9. In addition, said deeds granted and conveyed to the owner of Plaintiff's property, easements providing for the use of a recreational area, the right to install a and access to pump the lake. 10. Amexed hereto and made a part hereof and labeled Exhibit C is a copy of the map for the area in question. I1. The Plaintiff and Plaintiff's predecessors used the easements for recreational and access purposes for thirty years since the easements were granted. 12. There are two properties which are subject to the easements Those properties are owned by the Defendants. 13. One property was owned by Edith R. Abbey Roeschlaub. 14. That property was then placed in the Edith R. Abbey Roeschlaub Trust and was deeded 20th on or about the day of August 2009 by Charles Roeschlaub as Successor Trustee of the Edith R. Abbey Roeschlaub Trust to the Defendent Charles Peter Hunkele, Jr. A copy of that deed is annexed hereto, made a part hereof and labeled Exhibit D. 15. Said deed provides that itis subjeet to the rights of ingress and egress across the parcel as mentioned in the deeds to Harvey and Miller and is also subject to any restrictions and easements of record. Pappas, Cox, Kimpel,Dodd & Levine, P,C. Syracuse, New York Page 3 of7 FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 16. The second neighboring parcel which is subject to the easement was owned by Michele A. Harvey and Bernard Harvey who transferred the property to Bernard L. Harvey and Mary Jane Harvey by deed dated March 13, 2002. 17. Thereafter, Mary Jane Harvey and Bernard Harvey transferred the to the property Defendant David Strothers by means of deed dated June 11, 2015. A copy of deed is annexed hereto, made a part hereof and labeled Exhibit E. 18. Said deed also provided that itwas subject to any easements, rights of ways, covenants and restrictions of record. 19. The Plaintiff and Plaintiff predecessors were granted easements allowing for the use of the Defendat's property for the water line and pump, a recreational area and a 10 foot access area. Those easements were used over a period of about 30 years. 20. The two properties, which are subject to the easements, were transferred to the recently Defendants who have refused to honor the easements. 21. The DefePa=†: have moved their docks and stairs in order to prevent Plaintiff's use of the êâserñêñts, access to use of the recreational area and have refused to allow access to the 10 foot right of way to the lake. 22. As a result, Plaintiff has not been able to use the easements. 23. The Defendants have unjustly claimed that the Plaintiff has no easements or interest in the real estate. 24. Plaintiff is entitled to a Declaratory Judgment against the Defendants stating that the Defendants' Plaintiff has easements on the properties for the water line and pump, a recreational area and a 10 foot right of way and that the Defendants are ordered to allow the lawful, peaceful and uninterrupted use of said easements by the Plaintiff and Plaintiff's successors. Pappas, Cox, Kimpel,Dodd & Levine, P.C, Syracuse, New York Page 4 of 7 FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 25. None of the Defendants are unknown and none are infants, or incompetent to monaso themselves or their affairs. 26. Any judgment granted herein will not affect any person or persons not in being or ascertained at the commeñcement of this action, who by any contingency contained in a devise or grant or otherwise could afterward become entitled to a benencial estate or interest in the aforesaid mentioned premises, and that every person in being who would have been entitled to such an estate or interest, if such event had happened immediately before the conuñêñcement of this action is named a party hereto. 27. No personal claim is made against the Defêñdâñts herein, unless said Defendants assert a claim adverse to the claim of the Plaintiff as set forth in this complaint. Defendants' 28. The claims are adverse to that of the Plaintiff and Plaintiff is entitled to Declaratory Judgment as requested above. AS AND FOR A SECOND CAUSE OF ACTION Plaintiff repeats each allegation previously made and further alleges and shows the Court as follows: Plaintiffs' 29. As set forth above, the Plaintiff and Predecessors were deeded a 10 foot easement from their property to the water. The shoreline at that location is rocky and has been used continuously with a set of stairs and a dock in coññectich with the easement. 30. The Defendants have moved the stairs and docks such that the shoreline and water is no longer accessible from the easement. 31. Stairs and a dock are necessary in order to continue the use of the easement. Pappas, Cox,Kimpel, Dodd & Levine,P.C. Syracuse, New York Page 5 of 7 FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 32. Plaintiff requested permissian to construct stairs on the right of way going down to the water and a dock. Both Defendants have refused Plaintiff's request and have been denying the Plaintiff the use of the easement. 33. None of the Defendants are unknown and none are infants, or incompetent to wiañage themselves or their affairs. 34. 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 contiñgelicy contained in a devise or grant or otherwise could afterward become entitled to a beneficial estate or interest in the aforesaid mentioned premises, and that every person in being who would have been entitled to such an estate or interest, if such event had happened immediately before the commencement of this action is named a party hereto. 35. No personal claim is made against the Defendants herein, unless said Defendants assert a claim adverse to the claim of the Plaintiff as set forth in this complaint. Defendants' 36. The claims are adverse to that of the Plaintiff and Plaintiff is entitled to Judgment in that Plaintiff may construct stairs and a dock in connection with the use Declaratory of the right of and/or any injunction preventing the Defêñdâñts from interfering with the use way of the easement. WHEREFORE, the Plaintiff demands Judgment: 1. Against the Defendants declaring that the Plaintiff and all persons cleiei::g through the Plaintiff have easements against the property of the Defendants which provide for the water line and pump, a recreational area and a 10 foot right of way; Pappas, Cox,Kimpel, Dodd & Levine,P.C. Syracuse,New York Page 6 of 7 FILED: JEFFERSON COUNTY CLERK 08/05/2020 12:03 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/05/2020 2. The Plaintiff also requests further Judgment against the Defendants claiming the Plaintiff is entitled to construct stairs and a dock in coimectiGn with the 10 foot right of way caseiñêñt and/or any injunction preventing the Defendants from interfering with the use of the cascmcnt. 3. That the Defendants are barred from taking any actions which would interfere with Plaintiff's use of the easements as declared by the court, together with the costs and ' disbursements and t such other and further relief as the C ma eem t and proper. Date: November 2018 THOMA . GIVAS, ESQ. PAPPA , COX, KIMPEL, DODD & LEVINE, P.C. Attorneys for Plaintiff 614 James Street Syracuse, New York 13203 Tel: (315) 472-4481 Fax: (315) 472-2289 Email: / eivas@pappascoxlaw.com VERIFICATION STATE OF-NEW-¥0RK ) Gentd i BO ) SS: COUNTY OFJEEEERSON ) KENNETH MILLER, being duly sworn, deposes and says that Deponent is the Plaintiff in the within that Deponent has read the foregoing Amended Summons and Complaint and action; knows the contents thereof; that the same is true to Deponent's own knowledge, except as to the matter therein stated to be alleged on information and belief, and that as to those matters Dnonet believes itto be true; the basis of Plaintiff's knowled s h is e owner of the real property in connection with this action. TH Swom before me this P day o lcAmW , 2018. SEAL OF FICIAL Alyssa Ortiz NOTARY PUBLIC N lic sTATE OF NEW MEXICO Commission Expires: 7 C/701 My Pappas, Cox, Kimpel,Dodd & Levine, P.C. Syracuse, New York Page 7 of 7